Appellate Division Cases
(Criminal)
PARTIES
Alaluddin …………………………….petitioner
-vs-
The State ……………………………Respondents
JUSTICE
Md. Ruhul AminJ
Md. Hamidul Haque. J
Md. Tafazzul Islam. J
JUDGEMENT DATE: 30th October, 2003
The Penal Code, Section 109, 302, 201, 342. 15 BLD (AD) 54. 29 DLR(SC) 271. 45 DLR 587,43 DLR 249 and 6 BLC (AD) 1. 17 BLD 352. 1MLR (AD) 248. 16 BLD (AD) 261. 42 DKR (AD)31. 15 BLD (HCD)205.
Confessional statement of the petitioner was true and voluntary and the Magistrate who recorded the confessional statement stated in unequivocal terms that he recorded confessional statement after observing all legal formalities required under the law and in the decision reported in 29 DLR(SC) 271 it has been held that conviction of an accused based on retracted confession even if uncorroborated is not illegal if the court believed that it was true and voluntary …………………(6)
The petitioner failed to furnish any reasonable explanation as to death of his wife and in view of the principle laid down in the decision reported in 45 DLR587,43 DLR 249 and 6 BLC (AD) 1, the victim being murdered while in the custody of the petitioner, he was under an obligation to explain as to how his wife had met with death ………..(6)
Jail petition No. 13 of 2003. (From Judgment and order dated 08.03.2003 passed by the High Court Division in Death Reference No. 2 of 2000 heard along with Jail Appeal No.544 of 2000).
JUDGEMENT
1. Md.Tafazzul Islam, J:– The condemned prisoner Alaluddin, the petitioner in this jail
petition, filed this petition from jail against the judgment and order dated 8.3.2003 passed by the High Court Division accepting the death Reference Case No. 02 of 2000 and dismissing Jail Appeal No.544 of 2000 and thereby affirming the conviction and sentence passed by the learned Additional Session Judge, 4t n Court Rajshahi, on 26.1.2000 in Session Case No. 178 of 1998,convicating the petitioner under section 302 of the penal Code and sentencing him to death .
2. The prosecution case, in brief, is that victim Balika was brought up in the house of
Islam, her maternal uncle, and she was given marriage to the petitioner three years back.
Initially, the couple led a happy conjugal life but after one year, the petitioner started torturing the victim both physically and mentally and at one stage, the petitioner drove the victim out of his house whereupon she took shelter in the house of her maternal uncle. Subsequently, the petitioner filed a case with Bajubagha union perished to get the victim back in his house and at the mediation of the Chairman of the above Union perished, the victim again went back to the house of the petitioner. In the year 1998 on the eve of Eid- Ul-Azha, the maternal uncle of victim took her to his house to celebrate Eid and
subsequently on 22.4.1998,Moslemuddin the father of the petitioner, along with two sisters of the petitioner, went to the house of the maternal uncle of victim and after having dinner, they brought back the victim to the house of the petitioner, On 23.4.1998, at about5-00 a.m. Fuljhuri, the wife of the brother of the petitioner, went to the house of informant and informed that the victim Balika could not be traced. The informant then rushed to the house of petitioner along with Ismail, maternal uncle of the victim, and then after search the dead body of victim was found in the mango-garden of Chainuddin ,
which is situated about 200 yards away from the house of the petitioner. The informant then went to the police station accompanying the maternal uncle of victim and informed about death of his daughter whereupon unnatural Death Case No. 13 of 1998 dated 23.4.1998 was initiated. In the meantime the local people, being suspicious, caught the petitioner who was making contradictory statements. Later on, during inquest of the body of the victim, the police noticed black mark on the neck of the victim and it was revealed that the petitioner, in collusion with other accused persons, in a preplanned manner murdered the victim and accordingly on 25.4.1998 the informant, lodged F. 1. R. with Bagha police Station implicating the petitioner, Mansur the brother of the petitioner
and also Rabiya Bibi, wife of Mansur whereupon Bagha P.S. Case No. 9 dated
22.11.1995 was started under section 302/201 read with section 109 of the penal code. Then on 26.4.1998 the petitioner was produced before P.W.8, First Class Magistrate, Rajshahi and before him, the petitioner made a confessional statement admitting that he murdered the victim. The police after investigation submitted charge sheet against the petitioner under section 302/201 of the penal Code. The learned Additional Sessions Judge, 4 t n Court, Rajshahi framed charges against the petitioner under section 302 of the penal Code which was read over and explained to the petitioner to which the
petitioner pleaded innocence.
3. The prosecution examined 11 witnesses and though the defense examined none, from
the trend of cross-examination of the prosecution witness’s defense case transpires to be that the victim committed suicide and the petitioner was falsely implicated in the case out of previous grudge and enmity. After recording of evidence of the prosecution witnesses the petitioner was examined under section 342 of the Code of Criminal procedure wherein he pleaded innocence. On consideration of the evidence on record, the confessional statement and the facts and circumMances, the learned Additional Sessions Judge convicted and sentenced him as aforesaid. The High Court Division after hearing
accepted the Death Reference Case No.02 of 2000 and dismissed Jail Appeal No. 544 of
2000.
4. It is admitted fact that victim was married to the petitioner and used to live with the
petitioner in his house. The fact that the victim Balika last came at the house of the P.W.I the informant on 22.8.1998 on “^rra” And went back to the house of the petitioner on that day at night was proved by P.Ws. 1 and 2. the fact that on 23.4.1998 at about 5-00 a.m. Fuljhuri, the wife of brother of the prisoner went to the house of the informant and informed that victim Balika could not be traced was proved by p.Ws 1-4. The fact that after search the dead body of the victim was found in the mango-garden of Chainuddin, about 200 yards away from the house of the father-in-law of victim Balika, was
proved by P.Ws 3,4,5 and 6. the fact that initially no mark of violence were noticed on the dead body of the victim and the informant went to the police station accompanying Ismail and informed the police about the death of his daughter whereupon Unnatural Death Case No. 13 of 1998 dated 23.4.1998 was initiated was proved by p.Ws.1,2 and ll.The fact that at the time of inquest of the body of deceased, black mark was found on the neck of the deceased was stated by P.W.ll. The fact that the prisoner made a confessional statement voluntarily was proved by the magistrate P.W.8.
5. Before the High Court Division it was argued on behalf of the petition that the prosecution could not file any paper showing that accused was produced before Magistrate on 24.4.1998, the confessional statement alleged to have been made by the petitioner was not true and voluntary and during his examination under section 342 of the Code of Criminal procedure the petitioner denied to have made any confessional
statement, all the columns of the from wherein the confessional statement was recorded
were not filled up and so in view of decision reported in 17 BLD 352 the confessional statement of the petitioner can not be relied upon, the Magistrate who recorded down the confessional statement also did not ask the petitioner as to whether or not any pressure was exerted upon him to make the confession, the conviction was based merely on circumstantial evidence and as held in 42 DLR (AD) 31, in such a case the prosecution must prove the motive as held in 15 BLD (AD) 54, when the investigation of a case had already started on an information prior to the lodging of ejahar, subsequent information can not be treated as the First Information Report and it must be kept out of consideration of the court and accordingly the information on which Unnatural Death Case No. 13 of 1998 was started should have been treated as the First Information Report and not the information made on 25.4.1998 and so the information made on 25.4.1998 should have
been kept out of consideration of the Court, in view of the principle laid down in 1 MLR (AD) 248, since admittedly there existed hostile relationship between the petitioner and the victim and in his confessional statement the petitioner categorically stated that there was hot exchange of words between him and the victim in the fateful night, ends of justice will sufficiently be met if the sentence of death is commuted to one of life imprisonment.
6. On the other hand, the learned Deputy Attorney General appearing for the State contended before the High Court Division that the confessional statement of the petitioner was true and voluntary and the Magistrate who recorded the confessional statement stated in unequivocal terms that he recorded confessional statement after observing all legal formalities required under the law and in the decision reported in 29 DLR(SC) 271 it has been held that conviction of an accused based on retracted
confession even if uncorroborated is not illegal if the court believed that it was true and voluntary, the motive behind the murder was proved from the confessional statement of the petitioner, admittedly on the night of occurrence the victim was in the house of the petitioner and the petitioner failed to furnish any reasonable explanation as to death of his wife and in view of the principle laid down in the decision reported in 45 DLR587,43 DLR 249 and 6 BLC (AD) 1, the victim being murdered while in the custody of the petitioner, he was under an obligation to explain as to how his wife had met with death and though the appellant tried to explain that his wife committed suicide the same was found to be a travesty of truth in view of the evidence of the doctor and in the absence
of satisfactory explanation coming from the side of the petitioner and the explanation given having been found to be false, the petitioner is to be held responsible for causing death of the victim, though an unnatural Death Case No. 13 of 1998 was initially started on 23.4.1998 but subsequently final report was submitted in that case and then a regular case was started on 25.4.1998 and so the principle laid down in 15 BLD (AD) 54 is not applicable in the facts and circumstances of the present case.
7. As it appears, regarding confessional statement, the High Court Division held that the
confessional statement was an inculpatory one wherein the petitioner not only stated that he murdered his wife by throttling but also stated some events of their conjugal life in the fateful night which could not be tutored to him and the Magistrate in his evidence in unequivocal terms also stated that he recorded the confessional statement of the accused after observing all legal formalities and the confessional statement was also voluntary, the principle laid down in 17 BLD 352 is not applicable in the facts and circumstances of the present case as there is no interpolation in the confessional statement made by the petitioner and all the columns of the printed form were filled up by the recording Magistrate.
8. Regarding retraction, the High Court Division considered the decision reported in 29
DLR (SC) 271 wherein it was held that a conviction of a confessing accused based on
retracted confession even if uncorroborated was not illegal if the court believed that it was true and voluntary and the High Court Division having found that the confession was recorded after observing all legal formalities and that the confession was voluntary, believed the retracted confessional statement and upheld the conviction.
9. Regarding the submission that the prosecution must prove motive, the High Court
Division found that the petitioner himself in his confessional statement admitted murder and so the decision reported in 42 DLR (AD) 31 to the effect that where the conviction is based on circumstantial evidence the prosecution must prove motive was no applicable in the facts and circumstances of the present case.
10. Regarding requirement of reasonable explanation from a husband in the event his
wife was found killed while living with the husband and sleeping under the same roof as held in the decisions reported in 45 DLR 587, 43 DLR 249 and 6 BLC (AD)1, the High Court Division after discussing the facts of the present case held that since admittedly in the fateful night the victim was in his house, the petitioner was under an obligation to explain how his wife met death and in the absence of any explanation from his side, it seemed that none other than the petitioner was responsible for the death in question.
11. Regarding the submission that the conviction is based only a circumstantial evidence
the High Court Division Relying on the case reported in 16 BLD (AD) 261 held that in the present case the prosecution proved a chain of circumstances including making the confessional statement which proved that the petitioner murdered the victim.
12. Regarding the submission that the information dated 23.4.1998 on the basis of which
unnatural Death Case No. 13 of 1998 was started should have been regarded as FIR, the High Court Division considered the principle as laid down in 15 BLD (AD) 54 and held that in the case in hand, the information dated 23.4.1998, on which U.D. Case No. 13 of 1998 was started, ended in submission of a final report and so no illegality was committed in filing a subsequent First Information Report on 25.4.1998 for initiating the instant proceeding and regarding the delay in lodging the FIR, the High Court Division also explained the decision reported in 15 BLD (HCD) 205 and held that in the instant
case, the question of delay in lodging First Information Report has been duly explained
and as such the principle laid down in the above case is not applicable here.
13. Before the High Court Division, reliance was also placed on the decision reported
in 1 M.L.R(AD) 248 in support of the submission for commuting the death sentence into
imprisonment for life, wherein the Appellate Division commuted the death sentence to
imprisonment for life folding as follows: “This is not a case of inordinate delay in the execution of death sentence. However, this case calls for a commutation of sentence. The murder was not committed by a viscous macho male. Before causing death of his wife the
appellant suffered for some time from a bitter sense of being wronged by his wayward wife. In this case ends of justice will sufficiently be met If the sentence of death is commuted to one of life imprisonment. The appeal is allowed. The sentence of death
imposed on the appellant is commuted to one of life imprisonment.”
14. Hower the High Court Division, in the instant case, having found that the petitioner in
his confessional statement stated that initial part of the night after meal, had some events of their conjugal life and then when he told her that in the Eid her father did not give him any present, the victim in bad language rebuked him and after quarrelling for some time she went into sleep and so he being very angry, took decision to kill her and subsequently early in the morning before killing her by throttling he also had some events of their conjugal life and so it was a cold-blooded murder.
15. Question arises whether it is against natural human conduct that the petitioner while
making confessional statement also stated that before killing her by throttling he made intercourse with her because due to this statement the scope of the petitioner to take the plea of provocation, as was taken in the decision reported in 1 MLR (AD) 248, became narrowed down. However, it has been found by both the courts below that the above confessional statement was voluntary and the High Court Division also found that before murdering his wife by throttling the petitioner stated some events of their conjugal life which could not be tutored to him and the Magistrate also stated that the confessional statement was voluntary. So there is no scope of raising any suspicion about the contents of confessional statement.
16. Further, from the trend of cross examination of the prosecution witnesses the defiance
case during the trial appeared to be that the victim committed suicide and no plea was taken to the effect that since the victim rebuked the petitioner in bad language and quarreled with him, the petitioner, on provocation, killed her and this plea of provocation was raised for the first time before the High Court Division.
17. Accordingly, we find no cogent reason to interfere with the Judgment and order passed by the High Court Division.
18. The Jail petition No. 13 of 2003 and criminal Misc. petition No. 46 of 2003 are
accordingly dismissed.
Ed
Source: I ADC (2004), 299