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.10(A) OF 2014
(Arising out of JAIL PETITION NO.10 OF 2014).
(From the judgment and order dated 18.11.2013 passed by the High Court Division in Death Reference No.78 of 2008 with Criminal Appeal No.5919 of 2009 and Jail Appeal No.812 of 2008.)
Md. Zahangir @ Thotkata Zahangir: Appellant.
=Versus=
The State Respondent. For the Appellant: Mr. A.B.M. Baiyazid, Advocate,
instructed by the Court.
For the Respondent: Mr. S.M. Munir, Additional Attorney General instructed by Mr.
Haridas Paul, Advocate-on-Record.. Date of hearing and judgment : 08-07-2021
JUDGMENT
Hasan Foez Siddique, J: Sessions Judge, Noakhali in Sessions Case No.185 of 2007 arises out of G.R. Case No.301 of 2007 corresponding to Sudharam Police Station case No.15 dated 14.03.2007 convicted the appellant Md. Jahangir @
1
Thotkata Zahangir under section 302 of the Penal Code and sentenced him to death.
The trial Court sent the case record in the High Court Division for confirmation of sentence of death of the appellant which was registered as Death Reference No.78 of 2008 and the appellant preferred Criminal Appeal No.5919 of 2009 in the High Court Division and the High Court Division, by the impugned judgment and order dated 18.11.2013, accepted the Death Reference, dismissed the appeal and, thereby, confirmed the sentence of death. The appellant, then preferred Jail Petition No.10 of 2014 in this Division which was subsequently converted to Jail Appeal No.10(A) of 2014.
Victim Arafat Hossain aged about 9 years, a student of Noorani Hafizia Madrasha, Maizdhi was brutally killed within 6.30 p.m. to 6.45 p.m. on 13.03.2007. It was the time for Magrib prayer, the victim’s mother and the victim were staying in their house. Appellant Md. Zahangir @ Thotkata Zahangir, a neighbour, went to their house and requested the mother of the victim to say her Magrib prayer. When she was saying her Magrib prayer, appellant Md. Zahangir calling
Arafat Hossain went out from their house and, thereafter, killed the victim by a sharp cutting weapon. He concealed the dead body of the victim in a graveyard. The victim’s mother, after saying her prayer, finding the victim untraced started searching for him. At one stage, the informant and others proceeded towards the graveyard for searching the victim but they were prevented by the appellant which created a doubt amongst the people present there. All the people suspected the appellant and rushed to the graveyard and found the dead body of the victim. The people apprehended the appellant and, on interrogation, the appellant admitted that he himself had killed the victim causing injuries by a sharp cutting “dao” and threw his dead body in the graveyard. Getting information, Police rushed to the place of occurrence and arrested the appellant and recovered the “dao” used for killing the victim, as per indication of the appellant. The Police also seized the wearing apparels of the appellant, prepared inquest of the dead body of the victim and, then, sent the same to morgue for holding autopsy. Thereafter, F.I.R. was lodged by the P.W.1, father of the victim.
In course of investigation, the appellant made a confessional statement recorded under section 164 of the Code of Criminal Procedure. Upon holding investigation, the Investigating Officer submitted charge sheet against the appellant under section 302 of the Penal Code . The case was ultimately tried by the Sessions Judge, Noakhali, who framed charge against the appellant under Section 302 of the Penal Code and the appellant pleaded not guilty and claimed to be tried.
The prosecution examined 17 witnesses out of 21 witnesses cited in the charge sheet. The defence case as it appears from the trend of cross examination of P.Ws. that the appellant had been impleaded in the case falsely and that he was innocent.
The trial Court convicted and sentenced the appellant as mentioned earlier and sent the record in the High Court Division for confirmation of sentence of death. The appellant preferred criminal appeal. The High Court Division, by the impugned judgment and order, upheld the judgment and order of conviction and sentence. Thus, the appellant filed jail petition which converted to jail appeal.
Mr. A.B.M. Bayezid, learned Advocate was appointed by the State to represent the appellant since the appellant failed to engage any lawyer to represent him.
Mr. Bayezid submits that in this case there is no eye witness of the occurrence and the confessional statement of the appellant was not voluntarily made and the same was not true. He, lastly, submits that sentence of the appellant is at any rate too severe. On the other hand, Mr. S.M. Munir, learned Additional Attorney General, appearing for the State, submits that the appellant made confessional statement voluntarily and the same was true. He submits that in this case circumstantial evidence is so strong against the appellant that none else but the appellant had killed the innocent child. He, lastly, submits that sentence awarded by the Courts below should not be disturbed considering the gravity of the offence.
In this case , out of 17 prosecution witnesses, P.W.1 Md. Babul Khan is the father of the victim and informant of the case who in his testimony
stated that at about 11.30 a.m. on 13.03.2007 when he was discharging his duty as security guard of Noakhali Zilla School, the appellant met him and demanded taka 17,000/-, unpaid consideration of his sold land. He replied that he had no money in hand. He paid taka 20/- only. At about 7.30 p.m., he was informed that Arafat was missing. He rushed to his house and started searching. When this witness and others were going towards Graveyard for searching Arafat, appellant Jahangir tried to resist them suspiciously. Thus, people present there and this witness rushed to the Graveyard. He focused the torchlight and found a toy gun (material exhibit- 1) and, thereafter, they found the dead body of victim Arafat. At the time of recovery of dead body of victim Arafat, appellant was present and he became perplexed. Many people rushed there and found perplexed condition of appellant. They confined him. At that time, P.W.4 Mostafa Chowkider, P.W.5, Hafiz Member, P..W. Abdul Khan, P.W.7 Ismail, P.W. 3 Elias, and P.W.6 Moyen Uddin were also present there. Chowkider Mostafa, confining the appellant, informed local Police about the matter. Police rushed to the place of occurrence and arrested Jahangir. At that time, Rupbarna(P.W.11) told that she saw Jahangir in the evening with different dress which had been subsequently changed. Police recovered earlier used dress of the appellant as per his pointing out from his almirah. They also recovered a “dao” from his kitchen (material exhibit-2), Genzi (material exhibit-3) and Lungi (material exhibit-4) in presence of the witness. Jahangir admitted that he had killed the victim . He proved the F.I.R. (exhibit-2).
P.W.2 Md. Abdul Khan, brother of P.W.1 in his testimony stated that when they started searching in the Graveyard, appellant obstructed them and, thus, they suspected him. They searched the Graveyard and recovered the dead body of Arafat. At that time Jahangir became puzzled . On interrogation, he admitted that he had killed the victim. P.W.3 Md. Elias in his testimony also stated that at the time of recovery of dead body, appellant became puzzled. In his presence, the Police recovered toy gun (material exhbit-1), “dao” (material exhibit-2), “genzi” (material exhibit-3) and “lungi” (material exhibit-4). He proved the seizure list (exhibit-3). P.W.4 Md.
Hafizuddin mamber, in his testimony, stated that on interrogation, appellant admitted that he had killed the victim. He identified the victim on dock. He also stated that in his presence a seizure list was prepared after a seizing toy gun (material exhbit-1), “dao” (material exhibit-2), “genzi” (material exhibit-3) and “lungi” (material exhibit-4). He proved the seizure list (exhibit-3). P.W.5 Golam Mostafa Chowkider corroborated the testimonies of P.Ws.1, 2, 3 and
P.W.8 is the confessional statement recording Magistrate who in his testimony stated that at the relevant time, he had been serving as First Class Magistrate, Noakhali. On 18.03.2007, Police produced the appellant before him for recording his confessional statement. He allowed 3(three) hours time for his reflection. He told the appellant that he is Magistrate not a Police. If he makes confession he may be punished on the basis of the same. This witness also assured the appellant that he would send the appellant to jail hajat and would not hand him over again to the Police. He did not find any mark of violence on the person of the appellant. The appellant was physically and mentally well. He proved the confessional statement which was marked exhibit-
ÒAvwg KvV wgw¯¿ wnmv‡e KvR KiZvg| Avwg wgw¯¿i KvR †Q‡o †`q MZ
†Kvievbx C‡`i 4/5 w`b Av‡M| Avwg me©‡kl wb‡R wb‡R `‡Ëi nv‡U KvR KiZvg|
ev`x eveyj wgqv I Avgvi evwo cvkvcvwk| Avgvi eo †evb i‡q‡Q, Avgvi evevi Avwg GKgvÎ ‡Q‡j| Avgvi evev evyewP© KvR Ki‡Zb| MZ †ivRvi Av‡M Avgvi evev c¶vNvZ nq| Avgv‡`i msmv‡i Uvbv †cvov ïi“ nq|
Avgv‡`i m¤úwËi 09(AvU) Kov wewµi K_v nq ev`xi mv‡_| Zvi KvQ †_‡K evevi wPwKrmvi Rb¨ Ges msmvi Li‡Pi Rb¨ wewfbœ mgq UvKv †bq|
08 Kov Rwg 80,000/- UvKv weµq K_v nq| evey‡ji Kv‡Q †_‡K wewfbœ
mgq UvKv †bIqv eve` Avgv‡`i wnmve g‡Z 60,000/- Av`vq n‡q‡Q, wKš‘
†m e‡j †h 70,000/- UvKv w`‡qwQ| Zvici Avgiv wnmv‡e ewm, mvjvDwÏb Wv³v‡ii †`vKv‡b| †`vKvbwU wkecyi evRv‡i| wnmv‡e g‡Z Avwg 4200/-
UvKvi g‡Zv Rwg eve` cvIbv nq| Avgiv 02(`yB) evi †iwRwóª Kivi Rb¨
hvq wKš— Rgv LvwiR bv _vKvq Zv †iwRwóª nq bvB|
MZ 13/03/07 Zvs g½jevi Avwg evey‡ji evwo‡Z wM‡q Zvui eD‡K
UvKv jvM‡e g‡g© e‡j Avwm| Avwg Hw`b mKv‡j 7.00 Uvi w`‡q hvq| c‡i Avevi 8.30 Uvi w`‡K wM‡q evey‡ji eD‡K wRÁvmv Kwi ZLb fvex e‡j †h †Zv‡K gvBR`x †h‡Z e‡j‡Q| Avwg K_v g‡Zv gvBR`x Avwm| A‡bK †Lvu‡R
Zv‡K cvB bvB| c‡i 12/12.30 Uvi mgq †Rjv ¯‹z‡ji mvg‡b Zvi mv‡_
†`Lv nq| ZLb †m Avgv‡K 20/-(wek) UvKv w`‡q e‡j UvKv PvB‡j wK
cvIqv hvq| Avwg ewj evev‡K Wv³v‡ii Kv‡Q †be| Zey †m 20/- UvKv †`q|
Avwg evwo‡Z P‡j Avwm| evox‡Z `ycy‡ii fvZ LvB| evox‡Z KvR Kwi| Zvui
Dci (evey‡ji) Avgvi †gRvR Lvivc nq| Avwg evox‡Z KvR †k‡l †Qwb (eo
`v) evey‡ji evox‡Z Zvi PvPv wewìs Gi wfZ‡i cvZvi bx‡P †i‡L Avwm-
Zv‡K †g‡i †djvi B”Qv nq|
Avwg Avmi Gi bvgv‡Ri ci Avevi evey‡ji evox‡Z hvB| Avwg †mB
evox‡Z `yózwg Kwi mevi mv‡_| gvMwi‡ei bvgv‡Ri AvRvb n‡j Avwg evox‡Z
P‡j Avwm| Avwg bvgvR c‡o Avevi evey‡ji evox‡Z hvB|
evey‡ji †Q‡j AvivdvZ ZLb N‡ii evwn‡i wQj| Avwg †Qwb evwni Kwi|
Avwg AvivdvZ‡K GKv †`‡L Avgvi Kv‡Q WvwK Ges †Qwb w`‡q gv_vq evwo †`q| Gici †Kvc I c‡o | Avwg Zv‡K Kei¯nv‡b †i‡L evox‡Z P‡j hvB|
Avwg †Qwb evox‡Z wM‡q Avgv‡`i cv‡Ki N‡i ivwL|
evey‡ji †jvKRb Zvi †Q‡j‡K †LvuRvLywR K‡i| ZLb ivZ 9/9.30 v
n‡e| AvwgI LyuR‡Z †ei nq| Avwg mevB‡K Kei¯nv‡bi w`‡K wb‡q hvB| †Q‡j‡K †`‡L Avwg wPrKvi †`B| Avwg evwo P‡j hvB Ges Ávb nvwi‡q
†dwj| c‡i Avgvi gv_vq cvwb †`Iqv nq| cywjk G‡m Ges Avgv‡K a‡i wb‡q hvq|
GB Avgvi Revbew›`|Ó
P.W.9 Constable Abdus Samad escorted the dead body of the victim to the Morgue of Noakhali Hospital. P.W.10 Beauty Begom, mother of victim Arafat in her testimony, stated that accused Jahangir went to their house at the time of Magrib prayer. Jahangir drew her attention to say Magrib prayer. At that time, Arafat was playing in the courtyard. After saying Magrib prayer, she did not find Arafat in the courtyard and started searching. Getting information, her husband and others rushed to their house and started searching. At the time of searching, appellant Jahangir was present and told that it would not be possible in the night to find the whereabouts of the victim. People present there suspected him. Jahangir obstructed them from going towards Graveyard. Then the people present there rushed to the graveyard and found dead body of victim. After recovery of deadbody, Jahangir became puzzled. Some one informed matter to local police and the Police rushed to the place of occurrence and brought the dead body of victim to her house.
P.W.11, Rubarna Begum in her testimony stated that considering behaviour of Jahangir people present there suspected him. This witness also said that earlier in the evening she saw Jahangir in different dress but at the time of recovery of dead body she found him wearing new dress. On the face of interrogation by the Police, he brought out the earlier dress from his house. P.W.12 Siraj Uddin was a witness of recovery of “dao”. He stated that as per pointing out by the appellant “dao” was recovered from his kitchen which was marked material exhibit-2. At the time of recovery of “dao” the same was bloodstained. He proved the seizure list (exhibit-3-Ka). P.W.13 Md. Salahuddin is also witness of proving material exhibit-2. He corroborated the testimony of P.W.12 as to recovery of “dao”. P.W.14 A.S.M. Nurul Alam Talukder is the F.I.R. recording Officer and was examined on behalf of investigating Officer, since the investigating Officer Anowar Hossain, at the relevant time, was serving in East Timor under the U.N. Mission.
P.W.15, 16 and 17 are the doctors who were the members of Medical Board and held Postmortem examination on the person of victim Arafat. P.W.15 Sheikh Khairul Kabir proved the Postmortem report (exhibit-6). They found the following injuries on the person of the victim:
“(1) Sharp cutting injury in the Right scalp, Left scalp left check, Eye ranging for (3" X 1" X bone depth to 1" X 1" by Bone depth cutting Scalp Skin Muscles vessels.
(2) Sharp cutting injuries in left chest (3" X
1 1" ) upto chest both of Trachea Rt. 1 1" X1"
2 2
upto Bone deep. Rt 1 1" X 1" upto Bone depth.
2
(illegible) of the back lower part of chest (4" X 2") up to bone depth.
(3) Multiple Sharp cutting injury upper lower limby ranging from (2" X 1") upto bone depth, (1" X 1") upto bone depth cutting skin, muscle,
vessel (illegible).”
They opined that death was caused due to haemorrhage and shock caused by above mentioned injuries which were antimortem and homicidal in nature.
From the confessional statement (exhibit-5) as
proved by the P.W.8 Hasan Mahmud it appears that the appellant made statement consistent with prosecution case as to its date, time and manner of occurrence. The appellant gave vivid
description as to his motive, plan and manner of
occurrence and as well as in respect of his
subsequent conduct. P.W.8 after recording confessional statement endorsed that, Ò Avmvgxi kix‡ii
†Kvb cªKvi AvNv‡Zi wPn“ wQj bv| Avmvgx kvixwiK I gvbwmKfv‡e my¯n wQj|Ó Thereafter, he stated, ÒAvwg Avmvgx‡K evi evi eywS‡q w`‡qwQ †h Zvi ¯^xKv‡ivw³ Zvi wei“‡× †h‡Z cv‡i Zey †m †¯^”Qvq, ¯^xKv‡ivw³ w`‡q‡Qb| Ó That is ,
same was voluntarily made. It further appears
that the same was recorded following provisions
of section 164 and 364 of the Code of Criminal
Procedure. The perusal of his statement makes it
clear that before recording his confessional
statement, he was informed that he was not bound
to make confessional statement and the same could
be used against him in future. P.W.8 was
satisfied that the appellant was not forced to
make any statement. He was not allured in any
way. We do not find anything in evidence on
record to disbelieve the confessional statement.
If the confessional statement is found to be voluntarily made and true and has been recorded
in due compliance of provisions of sections 164
and 364 of the Code of Criminal Procedure, the
conviction can be awarded relying on such confession.
Moreover, it appears from the testimonies of P.W.4 Hafiz Member, P.W.12 Sirajuddin and P.W.13 Sahehuddin that the Police recovered blood- stained “dao” and wearing apparels of the appellant from his house as per pointing out by the appellant preparing seizure lists (ext. 3Ka and 3 Ga). Those seized articles were marked as material exhibits-2, 3, and 4. That is, the preconditions as to admissibility in evidence regarding recovery of weapon used to kill the victim and other incriminating materials as per disclosure made by the accused appellant had been satisfied. Provisions of Section 27 of the Evidence Act impose conditions for unwrapping the cover of ban against admissibility of statement of the accused to the Police which are (1) a fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence, (3) he should have been in custody of a Police Officer when he supplied the information, (4) the fact so discovered should have been deposed to by the witness [State of Rajasthan V. Bhup Sing, (1997) IO SCC 675]. The material brought on record showed that the appellant was in the custody of
the investigating agency. The statement by way of extra judicial confession made in police custody which relates to the facts discovered is admissible in evidence against the accused. In this case, there is no explanation by the accused
as to how the blood stained “dao” and wearing apparels were concealed in his house. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from an accused, such a discovery is a guarantee that the information supplied by the accused is true. The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and,
in fact, nothing has been elicited from them to disprove their creditworthiness.
It appears from the testimonies of P.Ws.1, 2,
4, 10 and 11 that the appellant became puzzled at the time of recovery of dead body and tried to obstruct those witnesses from going to graveyard for searching. In such situation those witnesses rushed to the graveyard and recovered dead body
of victim. P.W.11 Ruborna Begum who was present
at the time of recovery of dead body in her testimony sated ÒH mgq Avmvgx RvnvsMxi‡K Avwg Kvuc‡Z †`wL|Ó She further stated that she saw the appellant in the evening wearing “lungi” and “ganzi” but at the time of recovery of dead body, he was found with different dress. On interrogation, the appellant produced those wearing apparels from his almirah. Section 8 of the Evidence Act makes clear that subsequent conduct of any party to a proceeding is relevant if it is in reference to such proceeding or is in reference to any fact in issue therein or relevant thereto . However, such evidence will have to be tested and scrutinized like any other piece of evidence. Criminal intention may be inferred from subsequent conduct of the accused.
From the confessional statement of the appellant , which was direct acknowledgement of the guilt of the crime charged and was made voluntarily and consistent with the prosecution case and recorded following the relevant laws, the recovery of “dao” used for killing the victim as per pointing out by the appellant, subsequent conduct of the appellant after the occurrence and the circumstantial evidence clearly proved the charge against the appellant beyond all reasonable of doubt. Thus, we do not find anything to interfere with the judgment and order of the High Court Division.
Children are vulnerable and defenseless class of victims, deserving of special protection. The children are the future of every nation. The children not only need the protection of their parents, but also need to be protected by the society at large. Killing of a child needs to be condemned and deprecated in the harshest terms legally, morally and socially. The criminal law is general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. In recent years, the rising crime rate particularly violent crime against children has made the criminal sentencing by the courts a subject of concern. The measure of punishment in a given case must depend upon the atrocity of the crime; conduct of the criminal and the defenceless and unprotected state of the victim. Having played with life of a child the appellant does not deserve any leniency and for him sympathizing on the ground sought for will be wholly uncalled for. In this case the appellant has betrayed the trust of the society and of the child. In the
case at hand, the appellant killed the victim in a brutal and barbaric manner. The nature of the crime and the manner the same was committed inhumanly. It is not only betrayal of an individual trust but destruction and devastation of social trust. We, therefore, affirm the view taken by the High Court Division.
Accordingly, the appeal is dismissed.
The judgment and order of the High Court Division in Death Reference No.78 of 2008 and Criminal Appeal No.5919 of 2009 affirming the judgment and order dated 14.03.2007 passed by the Sessions Judge, Noakhali in Sessions Case No.185 of 2007 arising out of G.R. Case No.301 of 2007 corresponding to Sudharam Police Station Case No.15 dated 14.03.2007 is hereby upheld.
C.J. J.
J. J.
J. J.
The 8th July, 2021 halim/words- 3639/