IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Syed Mahmud Hossain

 Chief Justice Mr. Justice Muhammad Imman Ali

Mr. Justice Hasan Foez Siddique

Mr. Justice Abu Bakar Siddiquee

Mr. Justice Md. Nuruzzaman 

Mr. Justice Obaidul Hassan

JAIL APPEAL NO.01(A) OF 2015.

 (Arising out of Jail Petition No.01 of 2015)

(From the judgment and order dated 26.05.2014, 27.05.2014, 28.05.2014 & 29.05.2014 passed by the High Court Division in Death Reference No.124 of 2008  with Criminal Appeal No.8553 of 2008, Criminal Appeal No.8709 of 2008 and Jail Appeal No.1091 of 2008)

Md.Mahbubur Rahman Titu :      Appellant.

=Versus=

The State     Respondent. For the Appellant: Mr. Sayed Mhaymen Baksh,

Advocate, appointed by the State.

For the Respondent: Mr. Biswajit Debnath, , Deputy

Attorney General.

Date of hearing    : 15-07-2021 Date of judgment : 15-07-2021

JUDGMENT

Hasan Foez Siddique, J: Divisional Druta Bichar Tribunal, Chattogram convicted appellant Md. Mahbubur Rahman Titu and sentenced him to death

and to pay a fine of taka 50,000/- for commission of offence punishable under section 302 of the Penal Code by  a judgment and order dated 16.11.2008 passed in Druta Bichar Tribunal case No.40 of 2008 arising out of G.R. Case No.601 of 2007 corresponding to Comilla Kotwali Police Station Case No.66(9) 2007. The Tribunal sent the case record in the High Court Division for confirmation of sentence of the appellant which was registered as Death Reference No.124 of 2008. Appellant preferred Criminal Appeal No.8553 of 2008 and Jail Appeal No.1091 of 2008 in the High Court Division. The High Court Division, by the impugned judgment and order dated 26.05.2014, 27.15.2014, 28.05.2014 and 29.05.2014, accepted the death reference upon dismissing the appeals, thereby, confirmed the sentence of death. Thus, the appellant has preferred Jail Petition No.01 of 2015 which was subsequently converted to Jail Appeal No.01(A) of 2015.

The appellant was not represented. Thus, the State appointed Mr. Sayed Mhaymen Baksh, learned Advocate, to represent the appellant by State expense. Accordingly, Mr. Sayed Mhaymen Baksh, learned Advocate appeared in this appeal on behalf of the appellant.

This appeal is a sequal of an unfortunate occurrence. It appears from the evidence of P.W.1 Nushrat Fatema, mother of unfortunate victim Minhajul Abdin Tanim that her two children and she had been residing in a rented house, namely, “Shahnaz bhaban” of No.792/Ka E.P.Z. Road, South Chartha, Police Station and District-Comilla. Her son victim Tanim, aged about 10 years, was a student of class three of Ibna Taimia School and College. At about 7.30 a.m. on 16.09.2007, he went to school but after its closing he did not reach home. P.W.1 started searching the victim here and there but no trace was found. Story of missing was widely circulated through miking. Nurul Haque Patwary, debor of P.W.1, lodged G.D. No.1193 dated 16.09.2007 with Kotwali Police Station. From 13.8.2007 to 17.09.2007, news items having photographs of the victim were widely published in the different newspapers. The miscreants demanded taka 10,00,000/- as ransom  from P.W.1 through mobile Nos.01920008604, 01672292164, 01734050005, 01912697982, 01729789593 and 0195566866. The miscreants also

demanded  money for recharging their mobile phones assuring P.W.1 that they would allow this witness to talk with his son if she recharges those mobile phones. Then P.W.1 recharged taka 1800/- in those mobile numbers. On 24.09.2007, P.W.1 lodged F.I.R. (ext.1). Police arrested appellant Mahbubur Rahman Titu on the allegation of abducting the victim. They also arrested Ripon Chandra Das on 06.10.2007. Ripon Chandra Das made extra judicial confession stating that when victim Tanim was returning from his school and attempted to press the button of calling bell of their apartment, appellant Titu forced him going to the store room of the said under constructed 3rd floor of the building and pushed his head with the wall. Consequently, receiving injury Tanim became senseless. Appellant Titu, keeping the victim on the false ceiling of the building, met Kosai Alomgir and Ripon Chandra Das. They, hatching conspiracy, killed the victim. On the basis of said extra judicial confession of accused Ripon Chandra Das as per his pointing out Police recovered dead body of the victim under the heap stack of sand of the aforesaid 3rd floor of under constructed building.

Police arrested Kosai Alomgir on 9.10.2007. Appellant made confessional statement on 31.08.2008 implicating him with the occurrence.

The Investigating Officer, holding investigation, submitted charge sheet against the appellant  and two others for commission of offence punishable under section 302/201/34 of the Penal Code . The case was ultimately tried by the Druta Bichar Tribunal, Chattogram who framed charges against the appellant and two others under section 302/201/34 of the Penal Code. The accused persons, present on dock, pleaded not guilty and claimed to be tried. The prosecution examined as many as 18 witnesses in support its case and defence examined none. From the trend of cross examination of the P.Ws. it appears that the defence case was of innocence and they were implicated in the case falsely. The Tribunal, upon hearing the parties, convicted and sentenced the appellant as stated earlier and, thereafter, sent the case record in the High Court Division for confirmation of the sentence. The appellant preferred criminal appeal and jail appeal. The High Court Division accepted the death reference and dismissed the appeal. Thus, the appellant has preferred this appeal.

Mr.Syed Mohaymen Baksh, learned Advocate appearing for the appellant, submits that the confessional statement of the appellant was not voluntarily made and the same was not recorded following the provisions of section 164 and 364 of the Code of Criminal Procedure. The order of conviction relying upon such confessional statement is bad in law . He further submits that there was no eyewitness of the occurrence so the appellant should be acquitted of the charge.

Mr. Biswajit Debnath, learned Deputy Attorney General appearing for the State, submits that the prosecution had been able to prove its case beyond shadow of doubt against the appellant. He further submits that the confessional statement of the appellant was voluntarily made and the same was recorded following the provisions of law. He, lastly submits that circumstantial evidence strongly established that the appellant was principal killer of the victim and, thus, he was rightly sentenced to death.

Out of 18 prosecution witnesses, P.W.1 narrated  the prosecution case  as stated earlier. She is not the eyewitness of the occurrence. P.W.2 Dr. Fazlul Karim, holding autopsy, found following injuries on the person of the victim :

“(i) One cut throat injury measuring 4" X  1"

2

X bone placed on upper part of the front of the neck above the thyroid cartilage 2" on right and 2" on the left side of the midline of the body. All the structures on both side of the neck found sharply cut.

On dissection:- All the structures on both sides of the neck found sharply cut hyoid bone on the left side found fractured. 3rd cerevicle on its anterior aspect found sharp cut. The internal organs were found in a state of decomposition. Mentioned injuries were antemortem in nature. Opinion: Death was caused due to haemorrhage and shock as a result of cut throat injury which was antemortem and homicidal in nature”. He proved the postmortem report (exhibit-2).

P.W. 3 Md. Ataul Gani is the confessional statement recording Magistrate who in his testimony stated that on 15.10.2007 the appellant was produced before him for recording confessional statement. On preliminary inquiry, the appellant disclosed that he would make confessional statement. Accordingly, this witness allowed him some times for his reflection. He put questions as described in column No.5 of the confession recording form and, thereafter, recorded the confessional statement (exhibit-3). In his cross examination he said that he was not informed as to whether the appellant was taken in Police remand for 4(four) times or not. He allowed the appellant to stay for reflection in his chamber under the supervision of his peon. He denied the defence suggestion that the appellant was not given sufficient time for his reflection before making confession and he told this witness that he was seriously tortured but he did not mention the same in the confessional statement.

P.W.4 Md. Shah Alom in his testimony stated that at about 2.25 p.m. on 08.10.2007 Police recovered “chapati” , two bloodstained “chora” in his presence as pointed out by accused Ripon Das. Accordingly, Police prepared a seizure list (exhibit-6) and this witness put his signature

(exhibit-6(1). P.W.5 Anowar Pervez is also a witness of seizing the “Chapati” and “Chora”. He put his signature in seizure list (exhibit- 6(Kha). P.W. 6 Yousuf Jamil Swapon stated that on 24.10.2007 Police recovered hand gloves from a ditch situated behind the Scholastica Child Home Hostel. Accordingly, Police prepared seizure list (exhibit-5) . P.W.7 Foezulla is also a witness of recovery of hand gloves. P.W.8 Md. Halim is the owner of Halima Medical Hall who in his testimony stated that two young men standing on dock purchased two hand gloves from his shop. He further stated that police personnel and two arrested young men went to his shop for ascertaining whether the hand gloves were purchased by them from his shop or not. P.Ws.9 and 16 were tendered by the prosecution. 

P.W.10 Ibrahim Khalil, a tenant of the building stated that his son Raihan informed him that Tanim was missing. On 05.10.2007, this witness went to Jamalpur and returned on 6.10.2007 and then came to know that dead body of Tanim had been recovered from under constructed 3rd floor of the said building as per pointing out by accused Ripon Das .He saw the dead body of the

victim. P.W.11 Md. Nazrul Islam is a teacher of Ibna Taimia School. In his presence, Police held inquest of the dead body of the victim . He put his signature in the inquest report (exhibit-8) . P.W.12 Mosleuddin, another teacher of said school was also present at the time of holding inquest of the dead body. He put his signature in the inquest report. P.W.13 Aminul Haque, editor of local daily newspaper in his testimony stated that on 06.10.2007 he went to local Police Station and in his presence appellant Titu and Ripon Das admitted that they had killed the victim. Accordingly, Police, taking Ripon Das, went to killing spot building and recovered the dead body of the victim as per his pointing out. In his presence Police prepared inquest report. P.W.14 Md. Ruhul Amin is a seizure list witness. In his presence, Police recovered school bag, books, kathas, geometry box, pencil box etc. of the victim and prepared seizure list. He put his signature in the seizure list. Those seized articles were marked as material exhibits-X, XI, XII and XIII. P.W.15 Md. Nurul Haque Patwari, uncle of the victim stated that getting information as to missing of the victim, he

rushed to Comilla town from Chaddagram and started searching the victim. He lodged G.D. No.1193 dated 16.09.2007 with Kotwali Police Station (exhibit-11). On 20.09.2007, his bhabi received mobile calls from the miscreants who demanded ransom of tk.10,00,000/- from her.  Thereafter, his bhabi lodged first information report. On 06.10.2007, dead body was recovered as per pointing out by accused Ripon Das from beneth the stack of sand of 3rd floor of the said under constructed building. P.W.17 is the first Investigating Officer of the case. P.W.18, completing the investigation, submitted charge sheet against the appellant and others. In his testimony he stated that as per pointing out by co-accused Ripon Das he recovered the dead body of victim from beneath the stack of sand of 3rd floor of Shahnaj Bhaban. He prepared inquest of the dead body of the victim. He also recovered “chapati” and two “choras” from beside the toilet of the dwelling homestead of Ripon Das as per his pointing out which were used for killing the victim. He arrested Alomgir @ Kosai Alomgir from Bibir Bazar border area who also admitted that they had killed the victim. He produced accused

persons before the Magistrate for recording their statements under section 164 of the Code of Criminal Procedure.

From the evidence as discussed above, it appears that there is no eyewitness of the occurrence in this case. The Courts below convicted the appellant on the basis of his confessional statement recorded under section 164 of the Code of Criminal Procedure and other circumstantial evidence.

It is relevant here to reproduce the contents of the confessional statement of the appellant Md. Mahbubur Rahman Titu which are as follows:

ÒMZ 16/9/2007 ZvwiL mKvj GMviUv ev mv‡o GMviUv w`‡K Avwg hLb

¯‹zj †_‡K Zv‡`i  fvov Kiv evmvi wZb Zjvi cwðg cv‡ki d¬¨v‡Ui Kwjs

†ej wUc‡Z hvB, ZLb Avwg wZb Zjvi I Pvi Zjvi wmuwoi gvSvgvwS

¯nv‡b `vuwo‡q Zv‡K WvK †`B| ewj, Zvwbg , GKUz Gw`‡K Avm| ÒZLb

Zvwbg Dc‡i Avgvi wbK‡U Av‡m| Zvici Avwg Zvi nvZ a‡i ewj, ÒPj

Dc‡i hvB| Ó ZLb Zv‡K Pvi Zjvi wbg©vbvaxb wK‡Pb i“‡gi cv‡k †óvi i“‡g

wb‡q hvB| Zvi ci Avwg Zvi gyL nvZ w`‡q †P‡c a‡i Zvi gv_vUv‡K

Iqv‡ji mv‡_ `yBwU evwi †`B| Iqv‡j Av¯—i bv _vKvq Zvi gv_vi wcQ‡bi

Ask Amgvb Iqv‡j AvNv‡Z †_Z‡j hvq Ges H ¯’vb w`‡q nvjKv i³ †ei

n‡Z _v‡K ZLb Zvi †PvL `yBwU eo n‡q, Nvo `ye©j n‡q †m AÁvb Ae¯nvq

Iqv‡ji mv‡_ †n‡j c‡o| GUv †`‡L Avwg fq †c‡q hvB| †KD Pvi Zjvq

DV‡j hv‡Z Zv‡K †`L‡Z bv cvq †mRb¨ Avwg Zvi AÁvb ewW †Kv‡j Zz‡j

wb‡q cv‡k _vKv †Pqv‡ii Dci `vuwW‡q djm Qv‡`i Dc‡i Zv †i‡L †`B|

Zvici mv‡_ mv‡_ Avwg bx‡P `yjv fvB‡qi evmvq wM‡q wd«‡Ri VvÛv cvwb LvB| MvgQv w`‡q gyL gywQ| mv‡_ mv‡_ Avgvi eÜz AvjgMx‡ii evmvq hvB

KmvB cvovq Zvi evmv| AvjgMxi‡K me K_v RvbvB Ges NUbv jyKv‡bvi e¨e¯nv Ki‡Z ewj| ZLb †m e‡j, ÒAvwg©iv Avgvi †`vKvb †f‡½ w`‡q‡Q|

†m Rb¨ Avgvi †Qviv Av‡iKRb‡K KvR Kivi Rb¨ w`‡qwQ| ZzB hv| Avwg weKv‡j †Qviv wb‡q Avm‡ZwQ|Ó ZLb Avwg B,wc, †RW GjvKvq Avgvi Av‡iK eÜz wic‡bi evmvi mvg‡b Avwm| †LvuR wb‡q †`wL †m ZLbI Awdm

†_‡K Av‡mwb| ZLb Avwg wicb‡`i GjvKvi ‡g‡m emevm Av‡iK eÜz

gvmy‡`i †g‡m wM‡q GK N›Uv ï‡q _vwK| PviUvi w`‡K Avevi B,wc, †RW Gi mvg‡b hvB| ZLb wic‡bi Awdm QywU nq| wicb Adm †_‡K †ei n‡j Zv‡K

NUbv RvbvB| Zvici Avgiv `yBRb GK‡Î AvjgMx‡ii evmvq hvB| Zv‡K

Nyg †_‡K †W‡K Zz‡j Avgiv wZb Rb Avevi B,wc, †RW, Gi mvg‡bi AvÛvi

MªvDÛ †nv‡U‡ji mvg‡b wM‡q `vuovB| AvjgMxi Avgv‡`i `yBRb‡K †mLv‡b `vuo Kwi‡q †i‡L UgQg weªR GjvKv n‡Z Zvi †Qviv ¸‡jv Avb‡Z hvq| †m b¨vKov w`‡q cvuPv‡bv †Qviv¸‡jv wi·vq Zvi cv‡qi wb‡P †d‡j wb‡q Av‡m|

Avgv‡`i wbKU G‡m †m wi·vq †_‡K †b‡g hvq Ges Avwg H wi·vq K‡iB

cv‡qi wb‡P †d‡j †QvivMywj wb‡q Avgvi `yjv fvB‡qi evmvq wM‡q Pvi Pjvq

DwV| †mLv‡b wM‡q †`wL Zvwbg AÁvb Ae¯nvq djm Qv‡`i Dci †hgb K‡i

†i‡L wQjvg| ‡Zgb K‡i Av‡Q| ZLb Avwg †QvivMywj‡K Pvi Zjvq †i‡L

bx‡P †b‡g G‡m `vuo Kiv‡bv Ò wi·vq Ó K‡i AvÛvi MªvDÛ ‡nv‡U‡ji mvg‡b

hvB| †mLvb †_‡K wicb I AvjgMxi Avgvi wi·vq D‡V| wZbR‡b wg‡j

Avevi Avgiv gvmy‡`i †g‡m hvB| †mLv‡b wM‡q Avgiv BdZvi Kwi| †g‡mi

mvg‡b †mv‡n‡ji †nvÛv wQj Ges ivRyi Kv‡Q Pvwe wQj| ivRyi KvR †_‡K Pvwe wb‡q Avgiv H †nvÛvwU wb‡q wZbRb Avevi `yjvfvB‡qi evmvq Avwm|

Avwg  Zv‡`i `yBRb‡K Pvi Zjvq  DV‡Z ewj  Ges Avwg evmvi  mvg‡bi gv‡K©‡Ui GK †`vKvb n‡Z cwjw_‡bi gywoi eo e¨vM wKwb| Avwg †mBwUv wb‡q Pvi Zjvq hvB| PviZjvq wicb‡K cvnvivq `vuo Kwi‡q Avwg djm Qv`

n‡Z Zvwbg‡K bvgvB| Zvwb‡gi A‡PZb ewW †`‡LAvjgMxi fq †c‡q hvq|

AvjgMxi Zvwb‡gi Mjvq †Qviv Pvjv‡Z fq cvq| ZLb †Qviv w`‡q Avwg wb‡RB Zvwb‡gi Mjv KvUvi mgq Zvwbg †Rv‡i †Rv‡i wbt¯^vm †d‡jwQj| MjvKvU jvk cwjw_‡bi e¨v‡M XzwK‡q Avevi Zvi djm Qv‡` DwV‡q ivwL| |

GB dvu‡K AvjgMxi I ixcb wb‡P P‡j hvq|| Avwg Avgvi nv‡Z jvMv i³

evjy w`‡q gy‡Q bx‡P ‡b‡g hvB| ZLb Avwg †nvÛv Pvwj‡q B,wc,†RW, Gi mvg‡b hvB| †mLv‡b wM‡q AvjgMxi I wicb‡K cvB| AvjgMx‡ii Lvivc jvM‡Z‡Q e‡j †m Zvi evmvq P‡j hvq| ZLb wicb †nvÛvq K‡i gvmy‡`i

†g‡m wM‡q †nvÛv †diZ w`‡q Avwm| Zvici jvk jyKv‡bvi e¨vcv‡i wicb

Avevi ivRx nq| Z‡e †m e‡j, Òjv‡k Avgvi nv‡Z Qvc jvM‡e| ZvB M­vfm

Qvov Avwg jvk aiebv| ZLb `yBR‡b wi·vq K‡i KzPvBZjx nvmcvZv‡ji

mvg‡b wM‡q GKwU dv‡g©mx †_‡K cuwPk UvKv w`‡q M­vf¬m wKwb| Zvici

`yBR‡b Avevi `yjv fvB‡qi evmvq G‡m PviZjvq IwV| Zvici Avwg

cwjw_‡b fiv  jvkwU‡K djm Qv` †_‡K bvwg‡q PviZjvq _vKv GKwU

c­vwó‡Ki e¯—vq XzKvB| Zvici jvkwU‡K DwV‡q Avwg cwðg cv‡k©i evjyi

¯Zy‡ci Dci wb‡q ivwL| ZLb Avwg nv‡Zi M­vfm Ly‡j †m¸wj wicb‡K

†`B| †m ZLb evjyi wb‡P jvkwU‡K jyKvq| Avi Avwg evjyi ¯—yc nvZ w`‡q

evjywb‡q c~e© cv‡ki djm Qv‡` Ges bx‡P †mLv‡b i³ †j‡MwQj †mLv‡b wQwU‡q †`B| Zvici Avgiv `yBRb †Qviv ¸wj mn evmvi wb‡P †b‡g Avwm| †mLv‡b Kjvcwmej †M‡Ui mv‡_ _vKv cvwbi U¨v‡c nvZ ayB Ges †hB †QvivwU wb‡q Zvwb‡gi Mjv ‡K‡U wQjvg †mB †QvivwU cvwb w`‡q ayB| cieZx©‡Z

Avgvi K_vg‡Z I,wm, m¨vi djm Qv` n‡Z Zvwb‡gi bxj i‡Oi ¯‹zj e¨vM

D×vi K‡i| hv‡nvK Avwg I wicb KvR †kl K‡i  gvmy‡`i  †g‡m wM‡q

‡PŠwKi wPcvq †QvivMywj jyKvBqv ivwL| Zvici Avwg I wicb kvmbMvQv evm

†ók‡b G‡m wm,Gb,wR, wb‡q Avgvi †QvU †ev‡bi evmv eywoP‡q P‡j hvB|

cieZx©‡Z Avgvi AveŸvi †gvevBj Avgv‡K Rvbvq Ò Zvwb‡gi e¨vcv‡i

†Zvgv‡e m‡›`n Kiv nB‡Z‡Q| hw` Zzwg Ab¨vq bv K‡i _vK, Zvn‡j cywj‡ki

Kv‡Q aiv †`I| Zv bvn‡j †Zvgv‡K cywjk ai‡Z cvi‡j µm dvqv‡i

†dj‡e| Ó Avwg Avgvi AveŸvi wbKU Avmj K_v †Mvcb ivwL Ges ewj, Ò

Avwg †Kvb Ab¨vq Kwiwb| Avwg evmvq Avm‡ZwQ Ó| Zvici MZ gv‡mi 29

Zvwi‡L Avwg Avgvi `yjvfvB‡qi evmvq Avwm|  evmvq G‡m †`wL Avgvi

AveŸv, `yjvfvB Kvu`‡Z‡Q| KviY cywjk Avgv‡K bv †c‡q Avgvi †evb I fvwMœ‡K a‡i _vbvq wb‡q †M‡Q| ZLb Avwg Avgvi `yjvfvB‡K ewj, Ò `v‡ivMv‡K †dvb Ki“b †hb Avgv‡K _vbvq wb‡q hvq Ges Avgvi †evb fvwMœ‡K †hb †Q‡o †`q| Ó ZLb `yjvfvB _vbvq †dvb Ki‡j Agi `v‡ivMv G‡m

Avgv‡K _vbvq wb‡q hvq| Avgv‡K †bqvi c‡i Avgvi †evb I fvwMœ‡K _vbv

†_‡K †Q‡o †`q|

Zvwb‡gi gvi mv‡_ Avgvi MZ 3 / 4 gvm hveZ ˆ`wnK m¤úK© wQj| Zv‡K

Avwg gvby‡li mvg‡b Avw›U WvKZvg| GKjv †c‡j fvex WvKZvg Zvi mv‡_ m¤ú‡K© nIqvi c‡i †m Avgv‡K gv‡S gv‡S nvZ Li‡Pi Rb¨ UvKv w`Z|

Gfv‡e Zvi UvKvi Dci Avgvi †jvf nq| GKch©v‡q Avwg Zv‡K Avgv‡K GKwU †nvÛv †Kbvi Rb¨ 80/90 nvRvi UvKv w`‡Z ewj| ZLb †m Avgv‡K

GZ  UvKv w`‡Z A¯^xKvi K‡i| Avwg ZLb Zvi †Mvcb K_v mevB‡K Rvwb‡q †`e e‡j ûgwK †`B| ZLb †m Avgv‡K Lye MvjvMvwj K‡i| Avwg Zv‡K ewj,

ÒAvwg †Zvgvi Ggb GKUv ¶wZ Kie hvi Rb¨ †Zvgvi mviv Rxeb fzM‡Z

n‡e|Ó gwnjvi Dci cªwZ‡kva wb‡ZB Avwg Zvi ev”Pv‡K †g‡i †d‡jwQ|

Avwg Avgvi `yjvfvB‡qi wewì‡qi KvR †`Lvïbvi Rb¨ Zvi evox‡Z Avmv

hvIqv KiZvg|

wb¯úvc ev”Pv‡K †g‡i †djvi Rb¨ Avwg AbyZß| GB Avgvi Revbew›`| Ó

The provisions of sections 164 and 364 of the Code of Criminal Procedure emphasise an inquiry by the Magistrate to ascertain the voluntary nature of confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional

statement of an accused. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused.  From the confessional statement it appears that the confessional statement recording Magistrate put questions to the appellant that he is Magistrate not Police, the appellant is not bound to make confession and the confession could be used against him in future. From the testimony of P.W.3 Md. Ataul Gani, Magistrate it appears that he recorded the confessional statement being satisfied that the same was made voluntarily. The Courts below concurrently held that the confessional statement was voluntarily made. A confessional statement must satisfy two tests, (i) if the statement is perfectly voluntary, (ii) if the first test is satisfied on a true reading if could be considered as truthful. If both tests are satisfied the statement could be relied upon

against the maker . It is relevant here to state that co-accused Ripon Das in his confessional statement made identical statement. It is established principle that the confessional statement is sufficient to convict its maker if it is found that the same was made voluntarily and true and recorded following the provisions provided under section 164 and 364 of the Code of Criminal Procedure. We have already found that the confessional statement was made voluntarily and the same was true and there is no allegation that the same was recorded without following the provisions of law.

Let us evaluate the other circumstances:

(1)      The appellant is the brother-in-law of Haroon, owner of the crime spot house Sahnaz bhaban . The appellant used to go to that house.

(2)      On the basis of admission of the appellant Police recovered hand gloves used for concealing the dead body of the victim from the pond situated behind the crime spot building.

(3)      Appellant collected polythen bag from P.W.7 Foezullah which was used for concealing deadbody of the victim.

(4)      Appellant purchased hand gloves from the pharmacy of P.W.8 Halim who identified him on dock.

(5)      P.W.19 I.O. Tapan Chandra Saha stated that as per admission of appellant Mahbubur Rahman Titu and Ripon Chandra Das on 06.11.2007 he recovered deadbody of the victim from the crime spot.

The aforesaid evidence established a strong

circumstance which corroborated the confessional statement of the appellant.

If we peruse the confessional statement and circumstantial evidence together it would safely be concluded that the appellant had killed an innocent school going child. Such murder was committed for a motive which evinces total depravity and meanness. The victim was subjected to inhuman acts of torture and cruelty. The measure of punishment is depended upon the conduct of the accused and the gravity of the offence. Crimes of killing child need to be severely dealt with. Protection of the children and the society and deterring the criminals are the avowed objects of law and those are required to be achieved by imposing an appropriate sentence. Courts must hear the loud cry for justice by the society in cases of the heinous

crime of murder of innocent helpless child, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. In view of such circumstances, we find no illegality in the judgment and orders of the learned Courts below which calls for interfere  by this Division.

Accordingly, the appeal is dismissed. The judgment and order of conviction and sentence of death awarded by the trial Court affirmed by the High Court Division is hereby maintained.     

                                                                                       C.J.                                                                                           J.   J.

  J.   J.   J.

The 15th July, 2021 halim/words-3810 /