District: Netrakona.
In the Supreme Court of Bangladesh
High Court Division
(Criminal Appellate Jurisdiction)
Present:
Mr. Justice Syed Md. Ziaul Karim
And
Mr. Justice K.M. Emrul Kayesh
Death Reference No. 16 of 2018 The State
-Versus-
Md. Sowab Miah,
-------- Condemned-prisoner. With
Criminal Appeal No. 1589 of 2018
Md. Sowab Miah
----- Condemned-prisoner. -Versus-
The State,
----- Respondent.
with
Jail Appeal No. 55 of 2018
Md. Sowab Miah
----- Condemned-prisoner. -Versus-
The State,
----- Respondent.
Mr. A.K. M. Fazlul Huq Khan Farid, with
Mr. Mohammad Abul Hasnat
Mr. Sheikh Md. Shamsuzzaman,
Mrs. Shireen Akter, Advocates
. . For the condemned-prisoner.
Mr. Mohammad Monirul Islam, Deputy-Attorney-General with
Mr. Md. Robiul Islam, Assistant-Attorney-General,
Ms. Ayesha Flora, Assistant-Attorney-General
Mr. Md. Jahir Ahmed, Assistant-Attorney-General and
Page # 1
Ms. Belgish Nafisa Hoque, Assistant-Attorney-General
---- For the State.
Heard on: 28.04.2024, 29.04.2024 and 30.04.2024
and
Judgment on: 12.05.2024
K.M. Emrul Kayesh, J:
before the learned Sessions Judge, Netrakona in Sessions Case No. 205 of 2017, arising out of Netrakona Police Station Case No. 37 dated 28.04.2016, corresponding to GR Case No. 137(2)2016, wherein after conclusion of trial the learned trial court by its judgment and order of conviction and sentence dated 11.02.2018 convicted the above accused under section 302 of the Penal Code and sentenced him to death and also to pay a fine of taka 20,000/-( twenty thousand).
of the Code of Criminal Procedure (hereinafter referred to as Code) has been made by the learned Sessions Judge, Netrakona (hereinafter referred to as Judge) for confirmation of sentence of Death imposed upon the condemned-prisoner in Sessions Case No. 205 of 2017 dated 11.02.2018.
challenged the legality and propriety of the judgment and order of conviction and sentence dated 11.02.2018 passed by the learned Sessions Judge, Netrakona, in Sessions Case No. 205 of 2017, arising out of Netrakona Police Station Case No.37 dated 28.04.2016, corresponding to G.R case No.137(2)2016 convicting the condemned-prisoner namely, Md. Sowab Miah, son of Abdul Somed under section 302 of the Penal Code and sentencing him to death and also to pay a fine of Tk. 20,000/-.
having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.
Information Report (hereinafter referred to as FIR) and unfurled at trial, in short, is that the accused Md. Sowab Miah and his wife Shilpi Akter were sleeping in the same house of Sowab Miah on 26.04.2016. Shilpi Akter was carrying 4 months pregnancy. A mobile call came to the informant Swapan Miah at 03.01 a.m. on the date of occurrence disclosing that his sister was in death bed. Going there in the morning along with others he found the dead body of his sister lying on a cot in the said house. He found two black marks in two sides of her neck and one bulging injury behind her head. He did not find Sowab Miah present. On query his parent told him that he (Sowab Miah) was present there but they cannot say where he had gone just then. They told him that his sister got injured going to fix grill of a window. Without believing them he informed the police about the incidence of murder. Thereafter, the police came to the place of occurrence and conducted inquest over the dead body and sent the same to Netrakona General Hospital for holding autopsy. On such occurrence he lodged a First Information Report with Netrakona Sadar Police Station, whereupon Netrakona Police Station Case No. 37 dated 28.04.2016 was started.
said Police Station entrusted to one Sub-inspector of police Farid Ahmed for holding investigation of this case. Thereafter holding investigation over the case he submitted a charge sheet being No. 206 dated 25.05.2016 against the condemned prisoner under section 302 of the Penal Code.
Sessions Judge, Netrakona for trial and disposal, where it was registered as Sessions Case No.205 of 2017, who thereafter framed charge against the condemned-prisoner punishable under section 302 of the Penal Code. Then, the charge was read over and explained to him to which he pleaded not guilty and claimed to be tried.
witnesses the accused was examined under section 342 of the Code. Where the trial Court drew his attention to the circumstances appearing against him in the evidence and also confessional statement made by him one by one, when he further expressed his innocence and declined to examine any defence witness and claimed to be justice.
cross-examination of the prosecution witnesses are that the case is totally false and that the accused was falsely implicated with this case at the instance of his local rival party.
impugned judgment and order of conviction and sentence convicted the condemned-prisoner as aforesaid holding:
Deputy-Attorney-General assisted with Mr. Robiul Islam, Mst. Ayesha Flora, Mr. Md. Jahir Ahmed, and Ms. Belgish Nafisa Hoque, the learned Assistant-Attorney-Generals appearing for the state supports the Death reference and submits drawing our attention through the FIR, charge sheet, evidence on record and impugned judgment. He further submits that the learned Judge rightly convicted the condemned-prisoner after perusal of those documents and evidences on record. He next submits that the condemned- prisoner brutally killed his wife and thereafter he made a confessional statement involving himself with killing of his wife. The condemned-prisoner gave details as to killing his wife through the confessional statement. He further submitted that the confessional statement was true and voluntary in nature. As the prosecution successfully proved the charge beyond reasonable doubt against the condemned-prisoner and therefore, he has strenuously prayed for confirmation of the sentence of death of the condemned prisoner.
to the condemned-prisoner, the learned Deputy Attorney General submitted relying upon the following authorities:
. . Appellant
-VS-
State
. . Respondent
Reported in 74 DLR (AD)(2022) at page-36
Babul Miah........Respondent
Reported in 63 DLR (AD)(2011) at page-10
......Appellant
-vs-
The State and another
....Respondents
Decided in Criminal Appeal 72 of 2019. It has been decided by the Hon’ble Appellate Division on 03.01.2024.
Mohammad Abul Hasnat, Mr. Sheikh Md. Shamsuzzaman and Mrs. Shireen Akter, the learned Advocates appearing for the condemned-prisoner, has sought for impeachment of the impugned judgment and order of conviction and sentence on the following grounds:
Firstly: the evidence of the prosecution witnesses were not consistent and corroborative in nature. Secondly: The confessional statement did not support the prosecution case. Moreover, the confessional statement was obtained by duress and coercion upon the confessing accused. Thirdly: The condemned prisoner was not present in the place of occurrence hut rather he was staying in Dhaka at the relevant time of commission of offence.
Fourthly: The prosecution has failed to prove the charge levelled against the condemned- prisoner beyond reasonable doubt as such he sought for allowing appeals by setting aside the impugned judgment.
condemned-prisoner has assailed the judgment in question relying upon the following authorities:
. . Appellant
-vs-
State
. . Respondent
Reported in 10 MLR (HC) 2005 at page-282
...... Appellant -vs-
The State
...... Respondent
Reported in BCR 1984 HCD 10 at page-11
. . convict-Appellant
-vs-
State
. . Respondent
Reported in 57 DLR (2005) at page-513
. . Appellant
-vs-
Md. Ali Kibria @ Shahjahan
. . Respondent
Reported in 43 DLR(1991) at page-512
evidences on record adduced by the prosecution to prove the charge levelled against him.
deposition that the deceased Shilpi Akter was his younger sister and accused Sowab Miah is her husband. Accused Sowab Miah and his wife Shilpi Akter were sleeping in the same hut on 26.04.2016 at night. Shilpi Akter was carrying 4 months pregnancy. A mobile call was made to him at 03.01 a.m. on the date of occurrence disclosing that his sister was in dead bed. Going there in the morning along with others he found the dead body of his sister lying on the cot in the house of the accused. He found two black marks in two sides of her neck and one bulging injury behind her head. He did not find Sowab Miah present in the house of the occurrence. On query his parents told him that he was present there but they cannot say where he had gone just then. They told him that his sister got injured going to fix the grill of a window. Without believing them, he informed the police. The Police thereafter came in the place of occurrence house and held inquest over the dead body of the deceased and prepared an inquest report and so, he sent the same to Sadar Hospital in Netrokona for holding autopsy. On such occurrence he lodged an F.I.R. with Netrakona Sadar Police Station. The accused used to beat the deceased prior to killing her. Before 2/3 months of the occurrence his sister came back to their house being beaten by the accused but they returned back her to the house of the accused after holding arbitration. They buried the dead body of their sister at their house but none attended from the house of the accused. On such occurrence he lodged an FIR with Netrakona Model Police Station. He proved the FIR and his signature thereon marked as Ext. 1 and ext. 1/1 respectively, the inquest report marked as ext. 2 and his signature thereon marked as ext. 2/1.
case soon after performing of the funeral ceremony on the dead body of the deceased on 28.04.2016. He received the death news of his sister on 27.04.2016 at around 3.01 am. As the transport was not available in a deep night so, he went there in the morning. He reached the house of the accused along with his neighbours Ahad, Sobhan, Masum and Harun. He found the mother and neighbours of the accused present and at that time the accused stood in the veranda of his dwelling hut. On query about the cause of death of his sister the accused replied nothing. His mother told that she died of falling grill upon her.
He denied a suggestion that his sister was sick and she tried to commit suicide on several times earlier or the accused was not at home at the time of occurrence or his sister committed suicide.
accused and the informant. Deceased Shilpi Akter was the daughter of his sister. The informant Swapan Mia went to the house of the accused along with him and others on 27.04.2016 at around 6.00 a.m. receiving the death news of his sister. Going there they found the dead body of Shilpi Akter at the house of the accused. They found injury marks in her neck, head and wrist. Shilpi Akter and her husband Sowab Miah were in the same house. Receiving the information police came and prepared an inquest report over the dead body and collected his signature thereon. Police Seized pillow and sallower of the deceased by preparing a seizure list. He proved his signature on the inquest report as Ext. 2/2, the seizure list as Ext. 3 and his signature thereon as ext. 3/1. He also proved the seized Pillow and sallower as material ext. I and II respectively. On their query about the cause of death of the deceased, the mother of accused Sowab Mia told them that the deceased died of falling grill upon her. Sowab Mia used to beat Shilpi and Shilpi came back to their house once being beaten by the accused but they returned her back after persuasion.
Masum, Ahad also accompanied them to the house of the accused. He himself found the dead body before appearance of Police in the place of occurrence. They found Sowab Mia sitting on the veranda of his house before appearing of police. They did not try to apprehend him at that time. They did not accuse Sowab Mia and other persons of his family. They filed no case against accused Sowab Mia for beating of Shilpi Akter, prior to the incident of murder of Shilpi Akhter.
home at the time of occurrence or the accused came home from Dhaka after receiving the news of death of the victim or the accused did not kill his wife or no alamots were seized in his presence or he stated before the investigating officer that Shilpi Akter died of falling grill of a window upon her.
informant, accused and the deceased. On 27.04.2016 the informant Swapon Mia went to the house of accused along with Ahad, Sobhan, Harun at around 6.00 am. Going there they found injury marks in the neck, head and hand of the deceased Shilpi Akter. The people were saying that accused Sowab Mia killed his wife for having his extramarital relationship with another girl. The investigating officer seized a sallower and a pillow and prepared a seizure list thereof and collected his signature thereon. He proved his signature on the seizure list as ext. 3/2.
find police going to the residence of the accused. Having suspicion upon seeing the injury marks on the dead body, of the deceased then the informant informed the police. The relatives of the accused showed them the dead body at the house of the accused. They also found the accused at the said house. They asked the accused nothing. He denied a suggestion that the accused was not at home or he came home after hearing the news of death of her wife or the accused did not kill his wife or the deceased died of falling grill upon her going to commit a suicide.
accused and the deceased. On 27.04.2016 the informant Swapon took them to the house of the accused and going there they found the dead body of Shilpi Akter, sister of the informant and at the house of her husband accused Sowab Mia. They found injury marks in her body. Sowab Mia and his wife Shilpi Akter were living in the same house.
Swapon Mia is his neighbouring nephew. Swapon informed
him about the occurrence just after the Fazar prayer. They found the dead body at the house of the accused at around 6.00 am. He found injury marks and blood in the neck, head and hand. They found Sowab Mia at home. He left the house when police appeared in his house. He (Swab Miah) killed his wife Shilpi Akter for having an illicit relation with a girl.
He denied a suggestion that he did not visit the residence of the accused or the accused was not at home at the time of occurrence.
was working as Additional Chief Judicial Magistrate at Netrakona, accused Sowab Mia was produced before him for recording his confessional statement. He asked him necessary questions as provided in the Code and recorded his answers before recording his confessional statement. He made the accused understand about the consequence of the confession and gave him time for reflection. After reflection of time he wanted to confess his guilt voluntarily and accordingly he recorded his confessional statement in the prescribed form and then read over the same to him. Verifying the same to be correct he put his signature wherein he (accused) also put his signature. He proved the confessional statement as ext. 4 and his signature thereon marked as ext. 4/1 (series) and signature of the accused marked as 4/2.
the accused about his custody period under police. He however, assured the accused that he would not be returned back to police custody, if he would not make confession about killing of Shilpi Akhter.
He denied a suggestion that the accused did not make the confession voluntarily or he made the confession out of fear of police.
reproduced below:
“B¢j l¡S¢j¢Ù»l L¡S L¢lz B¢j S¤u¡ ®M¢mz h¡s£−a V¡L¡ fup¡ ®cC e¡ h−m Lb¡ L¡V¡L¡¢V quz HC L¡l−e Bj¡l Ù»£ ¢nÒf£−L g¡¢py ¢cu¡ ®j−l ®gm¢Rz Bj¡l f¡Qy hR−ll HLV¡ ®j−u B−Rz Bj¡l Ù»£ 2/3 j¡−pl NiÑha£ ¢Rmz Bj¡l p¡−b AeÉ ®LE S¢sa e¡Cz j¢el¡ Bj¡l j¡j¡−a¡ ®h¡ez a¡l p¡−b Bj¡l ®L¡e pÇfÑL e¡Cz Bjl¡ i¡C-®h¡e ®p L−m−S ®mM¡fs¡ L−l Bl B¢j j§ÑMz j¢el¡ ¢Lwh¡ AeÉ ®LE HC OVe¡l p¡−b S¢sa e¡Cz B¢j HL¡C ¢n¢Òf−L g¡y¢p ¢c−u ®j−l ®g−m¢Rz ”
27.04.2016 the police came to the place of occurrence and held inquest over the dead body of Shilpi Akter, wife of the accused, at the residence of accused Sowab Mia in his presence and took his signature after preparing an inquest report. The informant and the uncle of the deceased took him to the residence of Sowab Mia informing him the death news of Shilpi Akter. He proved his signature on the seizure list marked as ext. 2/3.
Choto bazer area in Netrakona. At around 8.00 am. the informant told him that his sister has been killed by her husband. After his presence the police came to the place of occurrence. He did not find the accused going there. He heard that before his arrival informant saw the accused in the place of occurrence house.
He denied a suggestion that he did not visit the place of occurrence or he did not see the dead body or he appended his signature on the report sitting at the said police station.
of this case has deposed that while he was working at Netrakona Model Police Station, the officer-in-charge informed him over phone that an information of an unnatural death of Borshikura has been received. Going there with his force, he found the dead body of Shilpi Akter lying on a cot in the courtyard of house of the accused. Upon found injury marks on her dead body he got suspicion and looked for the husband of the deceased and his mother but did not find them present in the place of occurrence house. He held inquest over the dead body as suspicion got in his mind, prepared a report with the signature of the present witnesses and sent the dead body to Netrakona General Hospital for holding post-mortem examination. He was present at the time of post-mortem examination and found bringing out a body of a child from the womb of the deceased. He informed the officer-in-charge about the occurrence and the officer-in-charge appointed him as investigating officer of the case. Receiving the charge of investigation he visited the place of occurrence, prepared a sketch-map, index, recorded statement of the witnesses under
section 161 of the Code seized the wearing apparels of the deceased, preparing a seizure list, arresting the accused got his confessional statement recorded by the Additional Chief Judicial Magistrate, Netrakona. He came to know during investigation that although the accused was a mason by profession but he used to spend money in gambling which his wife opposed. On the date of the occurrence the deceased called the accused at home by phone. After taking meal they locked horns an altercation with the deceased for their family affairs. As the accused throttled his wife as a result of which she died. The accused then hanged the dead body with the strut (dharna) of the house by a rope and started shouting saying that his wife committed suicide. Upon found prima- facie case against the accused he submitted charge-sheet against the accused person. He proved his signature on the inquest report as ext. 2/4, the sketch-map as ext. 5 and his signature thereon as ext. 5/1, the index as ext. 6, his signature thereon as ext. 6/1. His signature on the seizure list as ext. 3/3 and the seized sallower as materials ext. I.
informed the officer-in-charge for the 1st time. He himself did not get down the dead body from the state of hanging. The member of the family of the accused did not do that. The informant was present but the accused was found absent in the dwelling hut of the place of occurrence. He arrested the accused along with one Monira from the territory of Barhatta Police Station after around 2 months of the occurrence. He seized nothing from the place of occurrence. He found no broken window in the place of occurrence. There was no such place in the house of the accused to be set window.
He denied a suggestion that he kept the accused in his custody for 3 days and extracted confession from him under torture or the accused did not kill his wife or the injuries were not found in the dead body or he submitted false charge sheet against the accused. He further stated that the accused voluntarily made confessional statement on crying.
that on 27.04.2016 he was medical officer at Netrakona Adhunik Sadar Hospital and was a member of the Board of Post-mortem examination committee on the dead body of Shilpi Akter. The then resident Medical Officer Dr. Habibur Rahman conducted autopsy on the dead body and they found the following injuries on the dead body of the deceased.
Deep dissection: Subcutaneous tissue in ligature mark found hard white glistening. Most of the internal organs are found highly congested. Both the eyes are highly congested.
“Opinion: The cause of death of the deceased due to asphyxia resulting from strangulation which was ante- mortem and homicidal in nature.
He proved the post mortem report and his signature thereon which has been marked as ext. 7 and 7/1 respectively.
witnesses to prove the charge levelled against the condemned- prisoner.
advocate for the condemned prisoner Md. Sowab Miah that the confessional statement of the accused was not true and voluntary, rather it was obtained by applying physical torture upon the condemned prisoner. The condemned prisoner killed his wife on the spur of the moment because the condemned prisoner killed his wife during tenure of their quarrel and therefore, it can be treated as culpable homicide not amounting to murder. He was not present in the relevant time of suicide his wife, rather he was staying in Dhaka. The condemned prisoner was not examined in court properly under section 342 of the Code.
In the above submissions, we have to address the moot points raised by the learned advocate for the condemned prisoner one by one by discussing evidences and perusing of the materials on record.
on record and the submissions led by the learned Advocates for both the parties. We have categorised the witnesses at the outset of our discussion for the sake of clarity and convenience of understanding the case. P.W-1 Shawpon Miah, the informant P.W-2, 3 and 4 the formal witnesses of the case. P.W-5 Alamgir Kabir Shipon, Additional Chief Judicial Magistrate, Netrokona who recorded the confessional statement of the accused, P.W-6 Azharul Islam the witness of the inquest report P.W-7 the investigating officer P.W-8 Dr. Md. Fakrul Hasan the medical officer who conducted the post mortem examination over the dead body of the deceased.
witnesses in support of the prosecution case. The prosecution witnesses are not eye witness of this case. We have gone through the evidence of P.W-5. Alamgir Kabir Shipon Additional Chief Judicial Magistrate, Netrokona recorded the confessional statement of the condemned prisoner. He stated that he was working as Additional Chief Judicial Magistrate in Netrakona, while accused Md. Sowab Miah was produced before him on 13.05.2016 at 1.30 P.M for recording confessional statement of the accused. It appears from the confessional statement ext. 4/2 that the confessional statement was recorded at 2.40 P.M on the same day giving time for reflection of the accused Sowab Miah. He has been examined in court as P.W-5 wherein he stated that on 13.05.2016 recorded the confessional statement of accused while he was working as Additional Chief Judicial Magistrate, Netrakona. He further stated that before recording his confessional statement he put relevant questions as provided in printed confessional statement recording form (M-84) in column No.6. Whereupon he recorded his answers as given to the
effect that the confessional statement recording form (M- 84). He further stated that necessary caution was given that he was not bound to make confessional statement if he did it that would be used against him as evidence during trial. After being satisfied on questioning to the accused Sowab Miah as provided in the confessional statement form recorded his confessional statement under section 164 of the Code.
He denied a suggestion that he found a tortured mark on the body of the accused at the time of recording his confessional statement. Thereafter being satisfied on questioning to the accused before recording confession gave a memorandum to the effect that the confessional statement was made voluntarily. More over we have perused the confessional statement of the accused (ext.4/2) that the magistrate put some questions before recording confessional statement of the accused as provided in the confessional statement form on which he (accused) did not make any complain that he was making confessional statement before the magistrate under any sorts of compulsion. All the questionnaire incorporated into confessional statement pursuant to the provision of section 164 of the Code. It further appears from the confessional statement recording form that the learned Magistrate P.W-5 filled up the clause (1-5) to the column 6 of the confessional statement recording form (M-84) and he himself put his signature on being satisfied as to voluntariness of the confession and the confessing accused put his signature without any complain to the Magistrate on confessional statement form
voluntary.
In the case of
State.....Appellant
-Vs-
Babul Miah....Respondent
Reported in 63 DLR(AD)(2011) at page-10.
“Code of Criminal Procedure (v of 1898)
Section 164(3)
It is a mandatory requirement that after recording a confessional statement the recording Magistrate is required to make a memorandum to the confession containing a clause to the effect that he had warned the accused that he was no bound to make a confession, that if he makes a confession, it would be used against him, that the statement was true and voluntary, that it was recorded as per version of the maker and that it was read over to the maker after his statement was recorded which was the true and correct version and it contained a full and true account of statement made by the maker.”
In the case in hand the Magistrate recorded the
confessional statement and then gave a memorandum as required by the Code.
So the fact involved with the case and the facts of the present case are similar in nature.
In the case of
State.......Appellant
-vs-
Md. Ali Kibria @ Shahjahan...... Respondent. (Supra) Section 24.
Where in your Lordship observed as under:
“Retracted confession – It is a rule of prudence that a retracted confession needs corroboration in as much as it is always open to suspicion and cannot be acted upon unless corroborated by independent and credible evidence.”
confessional statement was made an earliest opportunity before the Metropolitan Magistrate, Dhaka. On which the confessing accused had got an opportunity to establish his defence case by cross-examining the prosecution witnesses or the confessing accused will get an opportunity to establish his defence case or the contents of the retraction petition by giving evidence before the trial court. The defence has completely failed to establish his defence by giving corroborative evidence in support of his retraction petition.
witnesses of the case was closed by the learned trial court on 15.01.2018 and on 06.02.2018 was fixed for examination of the accused under section 342 of the Code. On which date the accused Sowab Miah filed an application for retraction of his confessional statement on the ground of physical torture and illegally detained him for 5(five) days to be extracted his confessional statement. On a careful consideration of the evidence of P.W-5 the confessional statement recording Magistrate, who clearly stated in his disposition that the accused did not make any complain as to his physical torture before recording his confession. Besides, that the condemned prisoner did not produce any witness in support of his retraction petition. So the contents of the retraction petition was not established by giving evidence on the part of the accused. Even the defence did not raise any objection as to his physical torture at the time of recording his confessional statement to the Magistrate. So the fact of the cited case is congruent with the fact of the present case. Over and above there is no eye witness of this case. But P.W-1 the brother of the deceased came to the place of occurrence house in the early morning on 27.04.2016. He stated in his deposition that having reached in the place of occurrence house he found two black marks on both sides of the neck and two bulging injury on the back of her head of the deceased. He further stated that he found an injury mark on her wrist. P.W-2 also stated in his deposition that he found injury mark on the neck of the deceased. On perusal of the inquest report (Ext- 2/3) the investigation officer clearly mentioned that he had found two injuries on the neck of the deceased. The accused in his confessional statement clearly stated that he had killed his wife, which supported by the deposition of P.W-1, 2
In the case of
Serajul Islam......Appellant
-Vs-
The State........Respondent(Supra).
Where in your Lordship observed as under:
Section 304, part II
“Vague and ambiguous medical report ( Post Mortem Report) as to the cause of death of the alleged victim – No position advance in the report about cause of death- Evidence of alleged witnesses not acceptable.”
by the Medical officer was vague and ambiguous where upon the evidence of the witnesses were not accepted. We have gone through the post mortem report (Ext.-7) wherein the Medical officer opined “The cause of death of the deceased due to asphyxia resulting from strangulation which was ante mortem and homicidal in nature” we have carefully perused the ext.-7. Where the post mortem conducting doctor clearly mentioned that the victim’s death was caused from strangulation. P.W-1 informant who is not the eye witness of the incident of murder of the victim. But he stated that he found two blackish marks on the neck of the deceased and he also found another injury on the wrist of the deceased. He had seen the dead body of his sister lying inside of her dwelling hut. On a conspectus of the confessional statement wherein the accused mentioned that he had killed the deceased by pressing her throat. The Medical report (Ext.-7) wherein the doctor clearly mentioned that the death was caused from strangulation. On a meticulous reading of the post mortem report that there was no ambiguity in the post mortem report. In addition the doctor has deposed in court as P.W- 8. He stated that the death was caused of the deceased from strangulation. So the post mortem report is very much clear to have understood the cause of death of the deceased. Facts
the condemned prisoner was not examined under section 342 of the Code properly because the confessional statement was not drawn to the notice of the condemned prisoner. We have minutely scrutinized the examination form of the accused under section 342 of the Code where the learned trial Judge, categorically drew attention to the incriminating evidences appearing against the condemned prisoner but the learned trial court did not draw attention to the contents of the confessional statement.
Wherefore, he has prejudiced for not drawing attention of the contents of the confessional statement.
condemned prisoner relied upon a case:
Kazi Mahbubuddin Ahmed alias Mahbub ........Convict-Appellant. (Supra)
-Vs-
State.........................Respondent.
Wherein your lordship observed as under:
Code of Criminal Procedure (v of 1898)
Section 342
Non-consideration of written statement and documents and papers in support of written statement by trial Judge and his absolute silence on those caused a prejudice of a grave nature to the convict.
prisoner retracted his confessional statement by filing a retraction petition wherein he stated that he is a mason by professional and due to his professional work he had been staying outside his house at the relevant time of killing his wife. Moreover he further mentioned that his wife had committed suicide but he did not kill her. After hearing the news of death of his wife he had come to her village home from Dhaka. P.W-1 in his cross examination stated that while he came to the place of occurrence house, the accused was found sitting in the verandah of his dwelling
hut. P.W-1 further stated that the parents of the deceased told him that the accused would stay in the house, thereafter they found absent of the accused from the verandah of his dwelling hut. P.W-2 stated in his cross- examination that he found the accused on the verandah of his dwelling hut. P.W-1 and P.W-2 stated in their deposition that they went to the place of occurrence of dwelling hut in the morning on 27.04.2016. P.W-1 and P.W-2 stated that they went to the place of occurrence house at 6.00 a.m. and found the accused present in the place of occurrence house. The condemned prisoner did not produce any witness in support of his written petition submitted on 06.02.2018. It further appears from the record that whether the condemned prisoner was present or not in the place of occurrence house in the relevant time, where we have perused the impugned Judgment in which the learned trial court clearly observed that the defence has taken the plea of alibi saying that he was
staying in Dhaka and came to his house after hearing the news of the death of his wife. But nothing like that has been proved by the defence either by putting suggestion to P.W-1, P.W-2, P.W-3 and P.W-4 during cross examination or adducing any defence witness or any sorts of documents. It is the legal obligation of the accused to prove his alibi defence. But in this case the defence has failed to discharge such one. Even he did not mention in his written statement submitted during examination under section 342 of the code, describing where he works in Dhaka, how he got information of death of his wife and when he arrived at his home. On the other hand we have already found that P.W-1, P.W-2, P.W-3 and P.W-4 have deposed that they found accused Sowab Miah at his house till the appearance of the police. The deceased appeared to be died at the later part of night. Had her husband come from Dhaka before 6.00 a.m. then he had to explain, when he got the information and how he arrived at within the shortest possible of time. But nothing like this has been proved on the part of the accused. It further appears from plain reading of the impugned judgment that the learned court below arrived at a decision of conviction and sentence relying upon the confessional statement of the accused. Although the accused has retracted such confessional statement at the belated stage. When he was examined under section 342 of the Code stating that police kept him in their custody for 5(five) days after his arrest and tortured him physically but he did not show any sign of injury marks on his body to the Magistrate who recorded his confessional statement. Even in his written statement submitted during examination under 342 of the code he did not disclose when he was apprehended by police. The accused even arrested two months after the date of occurrence. So the accused has taken a plea of alibi which has fallen water in view of the evidence of P.W-1, P.W-2, P.W-3 and P.W-4. The learned court
deceased was killed while she was under the custody of
her husband condemned prisoner. In the case of
Mamun @ Mamun Ar Rashid(Md). (Supra)
..........Appellant
-Vs-
State .....................respondent.
Wherein your lordship observed as under:
Evidence Act (1 of 1872) Section 106
“When wife dies within the custody of her husband, the husband is to explain the cause of her death. The deceased was admittedly living with the condemned-appellant at the relevant time and thus the condemned-appellant was obliged to give an explanation as to how his wife had met with her death although normally an accused is under no obligation to account for the death for which he is on trial.”
living with her husband on the date of relevant night and the defence has not been able to establish his defence case by adducing sufficient evidence. So the fact of the cited case and the fact of the present case are holding good with each other.
prove at least that the material time the husband of the deceased was present in the place of occurrence house.
On the other hand the husband has the liability to explain as to how his wife was murdered.
In the case of
Abu Taher
.......Appellant.
-vs-
State
.....Respondent
Reported in 10 MLR (HC) 2005 at page-282
“Section 302- Charge of murder against the husband of the deceased wife and the liability of the husband-
It is well settled that the husband has the liability to explain as to how his wife was murdered when the deceased wife was living with him in the same house at the relevant time. But when it is not conclusively proved that the husband was present in the p.o. at the material time, the husband cannot saddled with the liability of killing his deceased wife.
It is well settled that when wife is murdered in the hut of the accused husband, to make the accused husband liable for the death of his deceased wife, the prosecution is to prove at least that at the material time the husband was present in the house. When the prosecution fails to prove that the accused husband was present when the wife was murdered he cannot be saddled with any onus to explain the cause of death of his wife.”
the condemned prisoner was present at the material time in
the house of the place of occurrence. But the condemned
prisoner could not establish his plea of alibi by giving oral
evidence or producing any documentary evidence in court. So
the case cited above completely applicable in the fact of this
case.
the condemned prisoner that the deceased was killed at
the tenure of their quarrel. It is admitted that there is no
eye witness of this case for which we have gone through
the confessional statement of the accused carefully. A
relevant portion of the confessional statement of the
accused is reproduced below.
"Avwg Ryqv †Lwj| evox‡Z UvKv cqmv †`B bv e‡j K_v KvUvKvwU nq|"
his confession that what types of heated words were exchanged with him at the time of exchanging his altercation with the deceased. Even he did not mention in his confession that whether they entered into scuffling or fight with each other. He mentioned in his confession that he killed his wife by hanging (duvwm). He further stated that his wife deceased was carrying for 2/3 months at the time of killing her.
chief that the accused Sowab Miah used to torture his wife because he had relation with another girl. The condemned prisoner after killing his wife by hanging he started to say simulating it to commit suicide his wife, not only that the condemned prisoner has further taken a plea that the victim deceased was died falling from grill upon her. P.W-7 S.I Farid Ahmed stated in his deposition that he was present at the time of holding post mortem examination over the body of the deceased. He stated in his cross examination that he did not find any broken grill even there is no provision for setting grill in the place of occurrence hut. He further stated that a dead embryo was taken out from her womb. It appears from plain reading of his confessional statement that the victim deceased was carrying for 2/3 months. Which he was aware at the time of killing his wife inhumanly. Which supports by the post mortem report (ext.7). The condemned prisoner mentioned in his confession that he had entered into an altercation with the deceased before killing her. But he did not prove it that he had locked horns with the victim over his family affairs before killing her. Moreover he killed her out of his extra marital relationship with a girl named Munira. It further appears from the deposition of investigating officer P.W-7 that the condemned prisoner had come to his house at night after receiving a phone call of his wife and that night was stormy weather. It further
appears on record that the condemned prisoner mentioned in her written statement submitted on 06.02.0218 at the time of examining the accused under section 342 of the code. Wherein he clearly mentioned that his wife Shilpi Akhter committed suicide (AvZœnZ¨v). But the doctor examined as P.W-8 clearly mentioned by giving an opinion “The cause of death of the deceased due to asphyxia resulting from strangulation which was ante- mortem and homicidal in nature.” It further appears from (ext-7) that on a deep dissection “Subcutaneous tissue in ligature mark found hard white and glistening”. Most of the internal organs are found highly congested. Both the eyes are highly congested.” We have found indication from ext-7 that the death was caused by strangulation. But the condemned prisoner has taken a plea of commission of suicide of the victim deceased herself.
At this juncture, we find support from a case
Chaitonya Sarker......Appellant
-Vs-
State and another.....respondent
Decided in Criminal Appeal No.72 of 2019. It has been decided by the Hon’ble Appellate Division on 03.01.2024.
Wherein your Lordships observed as under:
The differences between hanging and strangulation are given below in tabulated form.
Page # 1
Hanging
Strangulation
Page # 1
and the larynx, the base of the groove or furrow hard, yellow and parchment-like.
8. Abrasions and ecchymoses round about the edges of the of the ligature mark, rare.
9. Subcutaneous tissues under the mark- White, hard and glistening.
10. Injury to the muscles of the neck
– Rare.
11. Carotid arteries, internal coats ruptured in violent cases of a long drop.
12. Fracture of the larynx and trachea- Very rare and that too in judicial hanging.
13. Fracture dislocation of the cervical vertebrae- Common in judicial hanging.
14. Scratches, abrasions and bruises on the face, neck and other
in the neck below the thyroid, the base of the groove or furrow being soft and reddish.
Page # 1
parts of the body- Usually not present.
evidence of sexual assault.
16. Emphysemato
us bullae on the surface of the lungs- May be present.
Page # 1
Similar view has been taken by another bench of High Court Division in the case of Abdus salam –Vs- State reported in 18BLD(HJC) at page 98.
the death of the victim was caused as asphyxia resulting from strangulation. Moreover it appears from ext.7 that one transversely placed circular continuous ligature mark on the upper part of neck. So the defence plea that the victim herself committed suicide which has fallen through in view of the evidence of P.W-8 and the evidence of P.W-7 investigating officer. As per evidence and postmortem examination report the victim was killed by her husband from strangulation. So the condemned prisoner killed his wife Shilpe Akter on the relevant night and the intention of killing the deceased developed on the spot. Besides that, he had come to his house with intent and premeditation to kill her because he was fallen in love with another girl named Monira.
investigation officer that the night was stormy weather. So it was not possible to come anybody else in the place of occurrence at the time of commission of murder. The condemned prisoner killed his wife by strangulation knowingfully that his wife was carrying for 2/3 months inspite of that he pressed her throat without considering the future of his minor girl aged about 5 years only or her physical condition. The condemned prisoner killed his wife brutally subsequent thereto tried to make it as suicide. So the condemned prisoner killed his wife on the spur of the moment, which is fallen water in view of the post mortem report and his past behaviour with his wife.
In the case of
State, represented by the solicitor, Ministry of Law and Justice, Government of Bangladesh
-----Appellant -Vs-
Montu alias Nazrul Haque and others.
----Respondents. Reported in 44 DLR(AD) (1992) 287
Wherein your lordship observed as under:
Penal Code (XLV of 1860)
Sections 300, 299 and 304- part I
“Culpable homicide- The injuries, though caused intentionally, are of such a nature that these are “likely to cause death” and this does not constitute “murder”- it constitutes culpable homicide not amounting to murder.”
of the condemned prisoner reveals that he killed his wife pressing throat. But he did not show any sympathy towards his wife before killing her. Rather, having killed her he fled away from the place of occurrence. Even he did not surrender before the court voluntarily. The police arrested him from hiding place. The case as stated supra that the offender caused injury intentionally on the body of the deceased premediting that the injury was such a nature likely to cause death. But the evidence as emerged in the case that the condemned prisoner killed his wife without any doubt or hesitation rather premeditation. So the fact involved of the cited case and the fact of the present case are not congruent with each other
The prosecution has been able to prove the charge levelled brought against him beyond reasonable doubt. So the conviction and sentence deserved to be maintained.
materials on record that the condemned prisoner is a father of a minor daughter and he has been in condemned cell since the pronouncement of the Judgment. Moreover he is comparatively young, and therefore the justice would be served if his death sentence is commuted one from Death sentence to imprisonment for life with pay a fine of Tk.20,000/- in default to suffer rigorous imprisonment for a period of 6(six) months more. Moreover it appears from plain reading of the confessional statement and the evidence of P.W-1 and P.W-2 that their conjugal life was not blissful. So we find support to commute the death sentence to one imprisonment for life with fine.
In the case of
Nausher Ali Sarder and ors
....................Appellants.
-vs-
The State...............Respondent.
Reported in 39 DLR(AD)(1987) at page-196.
Wherein your Lordships observed as under:
Penal Code (XLV of 1860)
S.302
“Punishment for murder is death or transportation for life which is at the discretion of the court in consideration of the facts and circumstances of the case.
Section 302, which punishes murder’ does not specify in which case death sentence should be given and in which case transportation for life to be awarded, but leaves the matter to the discretion of the court. Every case should be considered in the facts and circumstances of that case only.
In view of Ext.9 there is no hesitation in saying that bitter matrimonial relationship played a part in this nefarious situation and while inflicting sentence such relationship cannot be overlooked.”
In this case we are of the view that, ends of justice
will be met, if the appellant’s sentence of death is commuted sentence to one imprisonment for life with fine as mentioned above.
relationship should be taken into consideration at the time of imposing sentence. In the instant case the confessional statement of the accused appears that their matrimonial relationship was rancorous between them.
So the decision cited above in holding good with the fact of the present one.
We lend support from another decision
Nalu
. . . Appellant
=Vs=
State
. . . respondent
Reported in 17 BLC(AD)(2012) at page-204.
In the case of Nalu –Vs- State (Supra)
Wherein your lordships observed as under:
“Mitigating circumstances
However, on the fact and in the circumstances of the case, the mitigating circumstances are,
the Judgment passed by the learned Sessions Judge, Netrokona on 11.02.2018 in Sessions Case being No.205 of 2017 is maintained with commutation of sentence one to imprisonment for life. Over and above on a careful
perusal of the Judgment the learned court below rightly convicted the accused punishable under section 302 of the Penal Code and sentenced of death with pay a fine of Taka 20,000/-(twenty thousand) but considering his age and his period of custody and he has been in condemned cell since his arrest. So Justice would be served if death sentence is commuted to imprisonment for life.
Thus the Death Reference, Jail Appeal and the regular Appeal having no merits and lastly fails.
35A of the Code in calculation of the sentence already been undergone in connection of this case.
court records along with a copy of the Judgment communicate at once.
(Justice K. M. Emrul Kayesh) Syed Md. Ziaul Karim, J:
I agree.