Appellate Division Cases
(Criminal)
PARTIES
Ekramul Hossain @ Anis…………………. Petitioner (In Jail Petition No. 07 of 2005)
Minarul Islam @Mina …………….Petitioner (In Jail Petition No. 08 of 2005)
Sukur Ali. …………………………….Petitioner ( In Jail Petition No. 08 of 2005)
-Vs-
The State …………………………….Respondent
JUSTICES
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
Md. Abdul Matin J
Judgment Dated: 4th May 2008
The Code of Criminal Procedure, Section 164,342
The Nari-O-Shishu Nirjatan Daman A.in, 2000, Sections 9(3) and ll(Ka)/30
Victim and P.W.I saw the victim going with accused Minarul. Minuara had on her person a green coloured kamiz, black silk pazama and black borkha and she did not return thereafter as a result of which the informant and other inmates of the house began searching for her and ultimately heard that the dead body of a woman was floating in the water of Chandrabati Indara near Boalmari field. P.W.I then accompanied by his relatives went there and came to learn that the dead body had already been taken to the morgue by the police. On the following morning, P.W.I and others went to Chuadanga Sadar Hospital and identified the dead body of Minuara…………… (2)
Prosecution, in support of its case, examined 16 witnesses and also tendered 3 witnesses for cross-examination by the defence. The defence declined to cross-examine the tendered witnesses. The accused persons were also examined under Section 342 of the Code of Criminal Procedure on conclusion of the evidence of the prosecution and they again pleaded to be innocent and declined to adduce any evidence in support of their defence……………….. (7)
The tribunal convicted 6(six) condemned prisoners under Sections 9(3) and H(Ka)/30 of the Nari-0-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to death and acquitted 4(four) others. The condemned prisoners preferred Jail Appeal No.324 of 2002 and then accused Minarul Islam @ Minu and Sukur Ali preferred Criminal Appeal No. 1625 of 2002 and accused Ekramul Hossain © Anis, Shajibul Islam and Kablu preferred Criminal Appeal No.1665 of 2002………….. (9)
It appears that the High Court Division considered that Minarul Islam took away the victim from the house of her father for the purpose of committing murder and accused Sukur Ali played vital role in the act of rape and murder of the victim………… (13)
It further appears that Ekramul entered into a conspiracy to kill the victim for sum of Tk.15,000/-. In addition to the evidence on record the High Court Division also considered the confessional statements of the accused persons and held that their confessional statements recorded under Section 164 of the Code of Criminal Procedure are true and voluntary and on the basis of the materials on record passed the impugned judgment and order. ………………(14)
Helal Uddin Mollah, Advocate,……………….. For the Petitioners
Zahirul Iloque Txihir, Deputy Attorney General…………….. For the Respondent
Jail Petition For Leave To Appeal Nos.07 And 08 of 2005
(From the judgment and order passed by the High Court Division in Death Reference
No. 17 of 2002 and Criminal Appeal No. 1645 of 2002.)
JUDGMENT
Md. Abdul Matin J : These jail petitions for leave to appeal are directed against the judgment and order passed by the High Court Division in Death Reference No. 17 of 2002 and Criminal Appeal No. 1645 of 2002 accepting the death reference in part and dismissing the criminal appeal reducing the sentence from death to imprisonment for life.
2. The facts, in short, are that Most. Minuara Khatun (15), sister of informant P.W.I Md. Motaleb Hossain, was a student of Class-IX of Nilmanigonj High School, who developed love affairs with condemned prisoner Minarul Islam @ Mina and they got themselves married on the basis of a kabinnama at Dhamurhuda Kazi Office beyond the knowledge of both the families about one year before the occurrence. Parents and other relatives of
Minarul Islam did not approve the marriage and after the marriage, Minuara continued
to live at the house of her father P.W.7 Shair Ali Mondal. There were several sittings for arbitration in the matter but the father and brother of Minarul Islam demanded taka one lac as dowry from P.W.7, who expressed his inability to make the payment and as such parents and other relatives of accused Minarul did not give any recognition to the marriage but accused Minarul used to visit the house of P.W.7 and stay there in the night. On 01.09.2000 at about 11 a.m. Minarul came to the homestead of P.W.7 and took his
wife Minuara in the name of visiting the house of his relatives. P.W.8 Shakina Begum, mother of the victim and wife of P.W.7, P.W.9 Rokhshana Hossain, wife of P.W.I Motaleb and P. W.I 8 Aklima Khatun, aunt of the victim and P.W.I saw the victim going with accused Minarul. Minuara had on her person a green coloured kamiz, black silk pazama and black borkha and she did not return thereafter as a result of which the informant and other inmates of the house began searching for her and ultimately heard that the dead body of a woman was floating in the water of Chandrabati Indara near
Boalmari field. P.W.I then accompanied by his relatives went there and came to learn that the dead body had already been taken to the morgue by the police. On the following morning. P.W.I and others went to Chuadanga Sadar Hospital and identified
the dead body of Minuara. There was injury on the abdomen of the victim and intestine came out there from. P.W.I then lodged ejhar to the above effect as P.W.7, father of the victim was ill. The accused persons having failed to realize the demanded dowry, killed the victim after committing rape on her and threw the dead body into the Indara.
3. Police investigated into the case and submitted charge sheet against the condemned prisoners and the acquitted 4 other accused persons.
4. During investigation, the 6 condemned prisoners namely, Iikramul Hossain @ Anis. Sukur Ali, Minarul Islam @ Minu, Shajibal Islam, Kablu and Tajibul Islam made confessional statements under Section 164 of the Code of Criminal Procedure recorded by P.W.3 Taposh Kumar Bashu and P.W.4 Rama Rani Roy. P.W.19 Md. Abdur Rab Akanda, the I.O. of the case, also seized alamats including the wearing apparels and ornaments of the victim, scissors belonging to condemn prisoner Tajibul and other materials from the accused persons.
5. All the accused persons were charged under sections 9(3) and ll(Ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 by the Nari-O-Shishu Nirjatan Daman Tribunal-1. Chuadanga, to which they pleaded not guilty and claimed to be tried.
6. All the convicted accused persons were not present on dock at the time of framing
charge on 17.03.2002 but some of the accused persons who were not present in Court on that date were subsequently charged on 18.05.2002 and 09.04.2002 and they also pleaded to be innocent and claimed to be tried.
7. Prosecution, in support of its case, examined 16 witnesses and also tendered 3 witnesses for cross-examination by the defence. The defence declined to crossexamine the tendered witnesses. The accused persons were also examined under Section 342 of the Code of Criminal Procedure on conclusion of the evidence of the prosecution and they again pleaded to be innocent and declined to adduce any evidence in support of their defence.
8. The defence case, as it appears from the trend of cross-examination, is that Minarul did not call and take away the victim on 01.09.2000 as alleged by the prosecution and the victim might have been killed by other persons. The convicted accused persons have been compelled to make confessions by police under threat, duress and torture. Accused
Minarul and other accused persons were not in any way connected with the murder and they have been falsely implicated this case in collusion with police with ulterior motive.
9. The tribunal convicted 6(six) condemned prisoners under Sections 9(3) and ll(Ka)/30 of the Nari-0-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to death and acquitted 4(four) others. The condemned prisoners preferred Jail Appeal No.324 of 2002 and then accused Minarul Islam @ Minu and Sukur Ali preferred Criminal Appeal No. 1625 of 2002 and accused Ekramul Hossain @ Anis, Shajibul Islam and Kablu preferred
Criminal Appeal No. 1665 of 2002.
10. The High Court Division after hearing the parties accepted the death reference in part and modified the sentence from death to imprisonment for life and dismissed the appeal.
11. As against the judgment and order of the High Court Division these jail petitions have been filed.
12. We have heard Mr. Helal Uddin . Mollah, learned Advocate appearing for
the petitioners and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
13. It appears that the High Court Division considered that Minarul Islam took away the victim from the house of her father for the purpose of committing murder and accused Sukur Ali played vital role in the act of rape and murder of the victim.
14. It further appears that Ekramul entered into a conspiracy to kill the victim for sum of Tk. 15,000/-. In addition to the evidence on record the High Court Division also considered the confessional statements of the accused persons and held that their confessional statements recorded under Section 164 of the Code of Criminal
Procedure arc true and voluntary and on the basis of the materials on record passed
the impugned judgment and order.
15. We are of the view that the High Court Division has correctly assessed the evidence and considered the facts and circumstances of the case and recorded the conviction and committed no error of law causing any miscarriage of justice in accepting the death reference in part.
16. We find no reason to interfere with the judgment of the High Court Division and
accordingly these jail petitions are dismissed.
Source : V ADC (2008),624