Mr. Justice Afzal Hossain Ahmed
Mr. Justice Md. Emdadul Haque Azad
DEATH REFERENCE NO.143 of 2005.
Noor Islam and others.
CRIMINAL APPEAL NO. 4095 OF 2005.
Noor Islam & others …. Appellants
The State … Respondent.
JAIL APPEAL NO. 1060 of 2005.
Hajiluddin @ Azizur Rahman… Appellant
The State …Respondent
JAIL APPEAL NO. 1061 of 2005.
Noor Islam … Appellant
The State … Respondent
JAIL APPEAL NO. 1062 of 2005.
Ziaur Rahman @ Zia … Appellant
The State … Respondent
JAIL APPEAL NO. 1063 of 2005.
Jahangir @ Gani … Appellant
The State … Respondent
Mr.Md.Salim, Deputy Attorney-General with
Mr.Md. Ensan Uddin Sheikh,
Mr.Md.Nurul Islam Matubber,
….For the Appellant-State.
…for all the Condemned prisoners-appellants.
Mrs. Shahanara Begum- State Defence Lawyer
… for the absconding Convict.
Aaizel @ Aazu @ Azizul Haque @ Azizur
Heard on the 4th, 5th, 6th, 9th & 10th January, 2011.
Judgment on the 13th January, 2011.
AFZAL HOSSAIN AHMED ,J:
This Death Reference has been made under Section 29 of the Nari-O-Shishu Nirjatan Daman Ain,2000 read with Section 374 of the Code of Criminal Procedure by the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal, Jessore for confirmation of the sentence of death imposed upon the condemned-prisoners , namely, 1) Noor Islam, 2) Ziaur Rahman @ Zia, 3) Jahangir @ Gani, 4) Hazil Uddin @ Azizur Rahman and another 5) Aaizel @ Aazu @ Azizul Haque @ Azizur (absconding) in Nari-O-Shishu Nirjatan Daman Case No. 12 of 2003. The condemed-presinores filed Jail Appeal being Nos. 1060 of 2005, 1061 of 2005, 1062 of 2005 and 1063 of 2005. Besides, the above named condemned – prisoners have also filed a separate Criminal Appeal being Criminal Appeal No. 4095 of 2005. The Death Reference, Jail Appeals as well as the Criminal Appeal have all been heard together and are disposed of by this judgment.
The prosecution case, in short, is as follows:-
One Md. Rajbul Hossain, on 1.11.2002 at 12-15 hours, being informant lodged ejahar with the Jhikorgachha Police Station to the effect that having gone to the house of his sister Monoara she informed him that the dead body of Shilpi Khatun (brother’s daughter of the informant) was found nacked in the PapawgardenofHossain Aliof village-Nilkantha Nagar. Then the informent being accompanied by Sirajul (his younger brother), Alamgir (his sister’s son) and sister Monoara went to the Jhikorgachha Police Station and identified the dead body to be of his brother’s daughter, Shilpi Khatun and found black marks on the throat of the deceased, Shilpi Khatun. Nearly, 1½ months ago that Shilpi Khatun was given in marriage with the accused Noor Islam. After marriage Shilpi Khatun went to her father-in-law’s house twice with her husband, Noor Islam. After completing the pleasure trip in her father-in-law’s house the victim Shilpi Khatun was taken to her father’s house one day before the Shab-E-Barat. On 25.10.2002, Friday, Shilpi Khatun while staying in the house of the sister of the informant the accused Noor Islam (victim’s husband) came there for fetching Shilpi Khatun. The accused Noor Islam stayed in that house for a week. Thereafter, on 31.10.2002 at 4-30 P.M. the accused Noor Islam got into a bus with the victim Shilpi Khatun from Jhoudanga Bus-stand for going to his ownvillage ofNilkantha Nagar. On that date, at about 6-30 P.M., the accused- Noor Islam got down from the bus at Gadkhali Bus-stand with the victim Shilpi. After crossing the Gadkhali Bazar on foot the accused Noor Islam, without taking the short unmetalled road to go to his village, chose the open field as per his pre-meditation and took the victim, Shilpi Khatun to the papaw garden of his brother, Hossain Ali. After taking the victim Shilpi Khatun to that Papaw garden the accused, Noor Islam and his accomplices, namely, Jahangir alias Gani, Hajiluddin alias Azizur, Aizul alias Aaju and Zia gang-raped her one after another and murdered her and left the dead body of Shilpi at that Papaw garden. At 9-30 P.M., on that very night on 31.10.2002, accused, Noor Islam reached home and mal-informed that the terrorists snatched away his wife, Shilpi Khatun from him on his way home. At that time the accused, Noor Islam feigned to be physically ill. On the basis of that mal-information, the local people conducted search for Shilpi Khatun, and sometime after in that very night on 31.10.2002, the local people discovered the nacked dead body of Shilpi Khatun from the Papawgarden ofHossain Ali. Then, the informant filed the F.I.R. with Jhikargacha Police Station whereupon the instant case was started. Police investigated the case and submitted charge-sheet against accused persons, Noor Islam, Jahangir alias Goni, Hajiruddin alias Azizur Rahman, Ziaur Rahman alias Zia, Aaizul alias Aazu alias Azizur under Section 9(3) of the Nari-O-Shishu Nirjaton Daman Ain, 2000. At the beginning of the trial charge under Section 9(3) of the Nari-O-Shishu Nirjaton Daman Ain, 2000 was framed against all the above named 5 accused persons including the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur . The charge was read over and explained to all the aforesaid condemned prisoners except the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur to which they pleaded not guilty and claimed to be tried. Because of his absconsion charge could not be read over and explained to accused Aaizel @ Aazu @ Azizul Haque @ Azizur .
After closure of the examination of the prosecution witnesses all the above named condemned-prisoners except the abasconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur were examined under Section 342 of the Code of Criminal Procedure to which they maintained the same plea of innocence. Accused Aaizel @ Aazu @ Azizul Haque @ Azizur could not be examined under Section 342 of the Code of Criminal Procedure as he was absconding. At this stage, all the condemned prisoners except the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur have said that they are quite innocent and that Police illegally arrested them in connection with this case and by inflicting physical torture and showing threat of handing over them to the Army for ‘Clean Heart Operation’ obtained the confessional statements under Section 164 of the Code of Criminal Procedure from them. The said confessional statements were neither true nor voluntary which they retracted subsequently.
19 witnesses for the prosecution and none for the defence were examined in this case. The prosecution have also adduced evidence which are marked as exhibits and material exhibits . State defence was provided for the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur .
The defence case as appears from the trend of cross-examination of the prosecution witnesses that all the accused persons are innocent and they have been falsely implicated in this case and they did not commit the offence as alleged and that the confessional statements have been obtained from the confessing accused by exercising threat and coercion upon them and the same are not at all true and voluntary .
The learned Judge of the Tribunal below having heard both the parties and considering the evidence and materials on record passed the impugned judgment and order of conviction and sentence dated 4.5.2005 convicting all the above named 5 accused persons including the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur under Section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentencing them to death by hanging by neck and also sentencing of them to pay a fine of Tk.1,00,000/- each.
The instant Death Reference being No. 143 of 2005 arises out of the aforesaid judgment and order of conviction and sentence and, thereafter, being aggrieved by the aforesaid judgment and order of conviction and sentence the convict-appellants have preferred the Jail Appeals and the regular Appeal as above.
Mr.Md.Selim, the learned Deputy Attorney-General with Mr. Md. Ensanuddin Sheikh and Mr. Md. Nurul Islam Matobbor, the learned Assistant Attorneys-General appearing for the State submits that in the instant case the victim, Shilpi Khatun was gang-raped and then brutally done to death by all the condemned-prisoners alongwith the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur and that the alleged occurrence took place at the instance of condemned-prisoner, Noor Islam, husband of the victim, Shilpi Khatun and that all the condemned-prisoners voluntarily made confessional statements recorded under Section 164 of the Code of Criminal Procedure wherein they confessed that as per plan designed by convict, Noor Islam all other accused including the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur gang-raped the victim Shilpi Khatun in presence of her husband and, thereafter, she was done to death by strangulation fastening her sharee on the neck. The learned Deputy Attorney-General further submits that all the aforesaid confessional statements made by the condemned-prisoners are consistent with each other wherein they gave a vivid picture as to how the alleged occurrence took place which is also consistent with the Inquest Report, Post Mortem Report and other evidence and materials on record and that the learned Tribunal Judge considering all the aspects of the matter as well as the evidence on record passed the impugned judgment and order of conviction and sentence and there is no reason to interfere with the same and that in a case of this sort of heinous offence all the condemned-prisoners as well as the absconding convict upon his securing arrest should be hanged.
Mr.Md.Amir Hossain, the learned Advocate appearing for the condemned-prisoners submits that there is no eye-witness of the alleged occurrence in this case and that the conviction of the condemned-prisoners are solely based on the judicial confessional statements made by them which have been extracted from them by exercising threat and coercion upon them and the same have not been voluntarily made by them. The learned Advocate further submits that in the instant case all the condemned-prisoners were produced before the Magistrate for recording their confession from Police custody about after 2 days from their arrest and that in the Post Mortem Report of the deceased, Shilpi Khatun no sign of rape was found and on these counts the impugned judgment and order of conviction and sentence is not sustainable in law. More so, there was no motive for committing murder of the victim even if the confessional statements made by the condemned-prisoners are taken to be true and voluntary. Mr. Hossain further submits that all the condemned-prisoners are aged between 18-24 and this shows that they all are of tender age and that the condemned-prisoners have been in condemned cell for about 6 years. The learned Advocate, lastly, entreats submitting that if the Hon’ble Court is pleased to uphold the impugned judgment and order of conviction, in consideration of their tender age and long detention in the condemned cell and as they had no pre-meditation and initial motive to kill the victim, the sentence of the condemned-prisoners may be commuted to imprisonment for life from death.
Mrs. Shahanara Begum, the learned Advocate, as State defence lawyer, appearing for the absconding convict-Aaizel @ Aazu @ Azizul Haque @ Azizur adopted the submission made by Mr. Md. Amir Hossain, the learned Advocate appearing for the condemned-prisoners as above.
Now, let us see whether the impugned judgment and order of conviction and sentence is sustainable in law.
Admittedly, victim Shilpi Khatun was married to the condemned-prisoner Noor Islam about one and a half months before the alleged occurrence and while she had been staying at the house of the informant’s sister, on 25.10.2002, Friday, Noor Islam went there to take Shilpi Khatun back and after staying there for one week, on 31.10.2002, Thursday at about 4-50 P.M. Noor Islam taking victim Shilpi Khatun with him left that house for his own house at village Nilkantha Nagar and at Jhowdanga they boarded on a bus and got down at Godkhali Bus-stand at about 6-15 P.M. and at 9-30 P.M. on that date Noor Islam came home and disclosed that his wife Shilpi has been forcibly snatched away by miscreants and on search at about 9-50 P.M. the dead body of the victim, Shilpi Khatun was found nacked lying in the Papaw garden of Hossain Ali.
It is alleged in the F.I.R. that having seen the dead body of Shilpi Khatun information was given to the Jhikorgachha Police Station and, meanwhile, accused Noor Islam disclosed that as per pre-meditation he took Shilpi Khatun to the Papaw garden of Hossain Ali where his accomplices Jahangir @ Gani, Hajiluddin @ Azizur Rahman, Aaizel @ Aazu @ Azizul Haque @ Azizur (absconding) and Zia gang-raped her and then caused her death by strangulation fastening sharee around her neck.
The informant Md. Rajbul Hossain, uncle of the deceased Shilpi Khatun, appearing as P.W. 1 has corroborated the prosecution case in toto as given in the F.I.R. . His testimony regarding time, place and manner of the occurrence as given in the F.I.R. remains in tact and during cross-examination by the defence he could not be shaken on those vital points. In the instant case although the prosecution has examined as many as 19 witnesses but, in fact, there is no eye-witness to the occurrence amongst them and the prosecution case leading to the conviction and sentence of the contemned-prisoners and the absconding convict-Aaizel @ Aazu @ Azizul Haque @ Azizur is solely based on the inculpatory confessional statements made by the condemned-prisoners as well as on the attending facts, circumstances, evidence and materials on record.
Amongst the P.Ws., P.W. 16 Monoara Khatun is the aunt of the deceased Shilpi Khatun who has said by corroborating the informant P.W. 1 that on the alleged date of occurrence at about 4-30 P.M. accused Noor Islam took Shilpi Khatun with him for going to his house after staying about a week in her house and on the next date at about 8 A.M. she came to know from Nazrul Islam, a Police of Jhikorgachha Police Station, that Shilpi Khatun died. She came toThana, saw the dead body of Shilpi Khatun wrapped with a patti and also saw accused Noor Islam at the Police Station and, on query, he confessed that he killed Shilpi Khatun.
P.W. 5Md.Fazlur Rahman Foza, a Shop keeper, has said that on 31.10.2002, at about dusk, accused Noor Islam and Shilpi Khatun bought Bidi and Navy cigarette for one taka from his shop and, thereafter, heard that Shilpi Khatun has been murdered .
P.W.2 Md.Alamgir, P.W. 3 Md.Akter Hossain (Ripon) and P.W. 15 Rafiqul Islam have said that accused Noor Islam confessed in their presence that he caused the murder of Shilpi Khatun at the Papaw garden of Hossain Ali.
In the instant case, the alleged occurrence took place in between 18.50 and 21.30 hours on 31.10.2002 and the accused Noor Islam was arrested on 31.10.2002, immediately, after the occurrence. Accused Jahangir @ Gani, Hajiluddin and Zia were arrested on 1.11.2002. The accused Noor Islam, on 2.11.2002, and accused Jahangir @ Gani, Hajiluddin and Zia, on 3.11.2002, were produced before the Magistrate (P.W. 17 Ashuk Kumar Debonath) who on the same date, after observing all the formalities of law as provided under Section 364 of the Code of Criminal Procedure, recorded their confessional statements. The confessional Statements of Noor Islam, Md. Ziaur Rahman, Hajiluddin @ Azizur Rahman and Md. Jahangir Alam are marked as Exhibits 5, 6, 7 and 8 respectively .
The confessional statement of accused Md. Noor Islam recorded under Section 164 of the Code of Criminal Procedure, marked as Ext. 5, is as follows :-
“ evox‡Z gvm †`‡oK Av‡M wkíx LvZyb‡K we‡q Kwi| we‡qi ci wkíx 3 evi Avgv‡`i evox‡Z G‡m‡Q| wkíx Avgvi K_v ïb‡Zv bv| †m Avgvi Kv‡Q ky‡Z PvB‡Zv bv| MZ k‡e eiv‡Zi GKw`b Av‡M Avgvi eÜy Rvnv½xi, wRqv, AvwRRyi I nvwRj DwÏb †K ewj| Avgv‡`i evwoi mvg‡b cyKzi cv‡o e‡m weKv‡ji w`‡K ewj| eÜyiv Avgv‡K Rvbvq Avgiv GKwU e¨e¯’v KiwQ| H mgq Avgvi eD k¦ïo evox wQj| Iiv Avgv‡K e‡j c‡ii e„n¯úwZev‡i eD wb‡q evwo Avq| Avwg I‡`i K_v g‡Z k¦ïi evwo n‡Z eD‡K wb‡q MZ 31/10/02 ZvwiL mÜ¨ 6.30 Uvi w`‡K M`LvBj bvwg| Avgvi k¦ïo evwo mvZ¶xiv SvDWvsMvq| Avgiv evm †_‡K bvgvi ci H Lv‡b AvwRRyj, nvwRj DwÏb I RvnvsMxi‡K †`wL| wRqv H mgq wQj bv|
Avwg eD wb‡q †n‡U evwoi w`‡K iIqvbv nB | Iiv 3 Rb GKUy Av‡M hvq| cw_ g‡a¨ †ij †ók‡bi †`vKvb n‡Z Avwg wmMv‡iU wKwb| †g‡Vv c‡_ A‡a©K c_ hvIqvi ci †LRyi evMv‡bi Kv‡Q wRqv mn I‡`i 3 Rb‡K†`L‡Z cvB| ZLb mÜ¨ 7.00 Uv n‡e| AvwRRyj Avgvi eD‡qi nvZ a‡i †cu‡c†¶‡Z wb‡q hvq| evKxivI wc‡Q wc‡Q hvq| AvwgI hvB| †cu‡c †¶‡Zi g‡a¨ wb‡q cÖ_‡g AvwRRyj Avgvi eD‡K al©b K‡i| c‡i nvwRj DwÏb al©b K‡i| Avwg ‡Kvb evav†`B bvB| wRqv I Rvnv½xi Avgvi eD‡qi nvZ a‡i iv‡L| al©b Kivi ci Avgvi eD wb‡¯—R n‡q c‡o| ZLb AvwRRyj kvwo Ly‡j Avgvi eD‡qi Mjvq†cuP†`q Ges kvwoi Av‡iK cvk ai‡Z e‡j wRqv‡K| Avwg cv awi| Rvnv½xi I nvwRj DwÏb nvZ a‡i| ivZ 8.00 Uvi w`‡K Avgiv jvk HLv‡b†d‡j ‡i‡L cv‡ki†LRyi evMv‡b hvB| Iiv Avgv‡K wkwL‡q †`q †h evwo wM‡q ej‡Z n‡e WvKv‡Z Avgvi eD wb‡q †M‡Q| wRqv wPrKvi w`‡q e‡j hvq| evKxivI hvi hvi gZ P‡j hvq| Avwg ivZ 9.00 Uvi w`‡K evwo wM‡q ewj Avgvi eD‡K WvKv‡Z wb‡q†M‡Q| H iv‡Z cywjk Avgv‡K †MªdZvi K‡i|
The confessional statement of accused Md. Ziaur Rahman recorded under Section 164 of the Code of Criminal Procedure, marked as Ext. 6, is as follows :-
“MÖv‡gi evox‡Z k‡e eiv‡Zi Av‡Mi w`b Avwg, Rvnv½xi, AvwRRyi, I nvwRj DwÏb byi e· miKv‡ii cyKz‡i wQjvg| GB mgq byi Bmjvg Av‡m Ges e‡j Ii eD Ii K_v ïb‡Q bv| Ii eD‡K Am¤§vb Kivi e¨e¯’v Kivi Rb¨ Avgv‡`i e‡j| Zvi cwiKíbv †gvZv‡eK 31/10/02 Zvs byi Bmjvg Ii k¦ïi evox n‡Z eD wb‡q Av‡m mÜ¨vi w`‡K M`Lvjx evRv‡i| M`Lvjx evRvi †_‡K gv‡V hvB|‡mLv‡b nvwRj DwÏb, Rvnv½xi I AvwRRyi wQj| byi Bmjvg eD wb‡q gv‡V Avm‡j AvwRRyi Ii eD‡K wb‡q †cu‡c †¶‡Z hvq| AvgivI wc‡Q wc‡Q hvB|AvwRRyi cª_‡g al©b K‡i| c‡i byi Bmjvg, nvwRj DwÏb, Rvnv½xi I Avwg al©Y Kwi| GKRb GKRb K‡i Kwi| Avwg al©b Ki‡Z ivwR nBwb| wKš‘ Iiv mevB †Rvi K‡i Avgv‡K al©Y Ki‡Z e‡j| al©Y †kl n‡j AvwRRyi ‡g‡qUvi kvwoi AvPj w`‡q †cuP †`q| Avgiv Ab¨viv nvZ cv a‡i ivwL| †g‡qUv gviv hvq| Avgiv byi Bmjvg‡K wkwL‡q †`B †hb evwo wM‡q e‡j Ii eD‡K WvK‡Ziv wQbZvB K‡i wb‡q †M‡Q I Zv‡K †LRyi evMv‡b †e‡a †i‡L‡Q| Zvici Avgiv hvi hvi gZ evwo P‡j hvB| ïµevi iv‡Z cywj‡k evwo †_‡K Avgv‡K a‡i _vbvq wb‡q hvq|
The confessional statement of accused Md. Hajiluddin @ Azizur Rahman recorded under Section 164 of the Code of Criminal Procedure, marked as Ext. 7, is as follows :-
“ evox‡Z k‡e eiv‡Zi Av‡Mi w`b byi e· miKv‡ii cyKy‡i gvQ ai‡Z hvB|‡mLv‡b byi Bmjvg, wRqv, Rvnv½xi,AvwRRyi (wcs nvqvZyjvn) Gi mv‡_ †`Lv nq| Avgiv byi Bmjv‡gi we‡qi K_v wRÁvmv Ki‡j †m Rvbvq eD‡qi mv‡_ Zvi m¤úK© fv‡jv hv‡”Q bv| ZLb byi Bmjvg Avgv‡`i e‡j †Zviv Avgvi eD‡K al©Y Kiwe| Zvn‡j †m j¾vq Avgvi evwo †Q‡o P‡j hv‡e Ges Avgvi wei“‡× gvgjv Kivi mvnm cv‡e bvÓ| byi Bmjv‡gi K_vq Avgiv ivwR n‡q hvB| Avgv‡`i cwiKíbv †gvZ‡eK byi Bmjvg eD Avb‡Z k¦ïi evwo hvq| MZ 31/10/02 ZvwiL mÜ¨vi w`‡K byi Bmjvg eD wb‡q M`Lvwj evRv‡i Av‡m| Avwg I Rvnv½xi Av‡M †_‡K †mLv‡b A‡c¶v KiwQjvg| evKx wRqv I AvwRRyi Avgv‡`i mv‡_ †`Lv K‡i evwo wd‡i hvq Ges e‡j hvq Zvivv gv‡V Avm‡e|
Avwg I Rvnv½xi byi Bmjv‡gi Av‡M Av‡M gv‡V P‡j hvq| byi Bmjvg bxjKÉ bMi gv‡Vi Kv‡Q eD wb‡q Avm‡j AvwRRyi byi Bmjvg‡K `vov‡Z e‡j| AvwRRyi I wRqv Av‡M †_‡KB gv‡V wQj| byi Bmjvg Zvi eD‡K AvwRRy‡ii nv‡Z Zz‡j †`q|byi Bmjv‡gi eD Rvb‡Z Pvq wK n‡q‡Q| AvwRRyi agK w`‡q _vwg‡q †`q| AvwRRyi eD‡K wb‡q †cu‡c evMv‡bi g‡a¨ †kvqv‡q †`q I al©YK‡i| †g‡qUv f‡q †Kvb wPrKvi K‡iwb| AvwRRyi cv‡k e‡m †g‡qUv‡K e‡j K_v ej‡j †g‡i †dj‡ev| Gi ci Avwg,wRqv I Rvnv½xi GKRb GKRb K‡i †g‡qUv‡K al©Y Kwi| Avgv‡`i al©Y †kl nIqvi ci AvwRRyi kvwo Ly‡j †g‡qUvi Mjvq †cP †`q| †g‡qUv cv QUdU Ki‡Z _v‡K| byi Bmjvg cv a‡i iv‡L| wRqv I Rvnv½xi `yB nvZ a‡i iv‡L| Mjvq duvm ‡`qvi ci †g‡qUv wb‡¯ZR n‡q hvq I gviv hvq|Avgiv ZLb hvi hvi gZ evwo P‡j hvB| hvIqvi Av‡M byi Bmjv‡K e‡jÓ Gfv‡e Avwg evwo †M‡j aiv c‡o hv‡ev| Avgvi nvZ †e‡a †`| Ii K_v gZ Ii wb‡Ri †MwÄ w`‡q AvwRRyi Ii nvZ †eu‡a †`q Ges wkwL‡q †`q evwo wM‡q ej‡Z ‡h Ii eD wQbZvBKvixiv wb‡q †M‡Q| ïµevi ivZ 2/2.30Uvi w`‡K Avgv‡K evwo n‡Z cywjk a‡i|
The confessional statement of accused Jahangir Alam recorded under Section 164 of the Code of Criminal Procedure, marked as Ext. 8, is as follows :-
“ M«v‡gi evox‡Z k‡e eiv‡Zi Av‡Mi w`b byi e· miKv‡ii cyKyi cv‡o Avwg, nvwdR DwÏb, wRqv gvQ ai‡Z hvB| byi Bmjvg H mgq Av‡m| byi Bmjv‡gi Kv‡Q Avgiv Ii eD‡qi K_v Rvb‡Z PvB|byi Bmjvg Rvbvq eD cQ›` nqwb| eD‡qi mv‡_ ‡Mvjgvj n‡”Q| I eD †Q‡o w`‡Z Pvq Ges e‡j eD‡K Am¤§vb Ki‡Z n‡e|Avgv‡`i cwiKíbv g‡Z 31/10/02 Zvs mÜ¨vi w`‡K byi Bmjvg Ii eD k¦ïi evwo n‡Z wb‡q Av‡m Avwg ZLb M`Lvjx ÷¨v‡Û wQjvg| K_v gZ Avwg gv‡V P‡j hvB| †mLv‡b wM‡q Avwg wRqv,nvwdR DwÏb I AvwRRyi GK nB| GKUz c‡i byi Bmjvg Ii eD‡K AvwRRy‡ii nv‡Z†`q| AvwRRyi eD wb‡q †cu‡c evMv‡b wM‡q †g‡qUv‡K †Rvi K‡i al©b K‡i| Avgiv mv‡_ mv‡_ hvB| AvwRRyi al©b Kivi ci Ab¨ivI al©b K‡i| al©b †kl n‡j AvwRRyi †g‡qUvi kvwo Ly‡j †g‡qUvi Mjvq †cuPvq| †g‡qUv gviv hvq| Ab¨iv nvZ cv a‡i ‡i‡LwQ‡jv| †g‡qUv wb‡¯—R n‡q hvq| AvwRRyi byi Bmjvg‡K wkwL‡q †`q †m †hb evwo wM‡q e‡j WvKvZiv Zvi eD‡K wb‡q †M‡Q| AvwRRyi byi Bmjv‡gi †MwÄ w`‡q byi Bmjv‡gi nvZ †eu‡a †`q| c‡i hvi hvi gZ evwo P‡j hvq|
The confessional statements made by the condemned-prisoners are inculpatory in nature and consistent with each other regarding time, place and manner of the occurrence. All the condemned-prisoners in their aforesaid confessional statements have given a vivid picture of the alleged occurrence disclosing that as pre-meditated the condemned-prisoner, Noor Islam husband of the deceased, Shilpi Khatun to suit his evil design to get the victim raped by other condemned prisoners and absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur on the alleged date took the victim, Shilpi Khatun to the alleged place of occurrence where absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur, at first, forcibly raped the victim and then the other condemned-prisoners raped her one after another and after committing the gang-rape absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur caught hold of the neck of the victim fastening by her sharee which resulted in her death.Condemned-prisoner Md.Ziaur Rahman @ Zia in his confessional statement stated that condemned-prisoner Noor Islam also raped the victim Shilpi Khatun. The vivid picture of the alleged occurrence as narrated by the condemned-prisoners in their aforesaid confessional statements appear to us to be natural. It appears from the aforesaid confessional statements that the Magistrate (P.W. 17 Ashuk Kumar Debonath) while recording those statements it appeared to him that the said statements were true and made voluntarily and there was no complaint of maltreatment or injuries noticed on the person of the accused.
The Inquest Report of the deceased Shilpi Begum, markd as Ext.10, prepared by P.W. 19 Md. Abdur Rob Akond who is also the Investigating Officer of the case, found ligature mark on the neck and sperm seemed to be present on the private parts. It is further mentioned in the Inquest Report that upon preliminary inquiry it was learnt that the victim was gang-raped by miscreants and then she was done to death by strangulation fastening her neck by cloth. The testimony of P.W. 19 Abdur Rob Akonda is quite consistent with the Inquest Report, marked as Ext.10, as well as the prosecution case as made in the F.I.R. The Post Mortem Report of the dead body of Shilpi Khatun, marked as Ext.9, prepared by P.W. 18 Dr. A.R.M. Mostayeen Billah, shows that there was one ill-diffused circular and continuous ligature mark present in the middle part of the neck, breadth about 4/ floor slightly abraded and each margin was congested. However, it was mentioned in that Post Mortem Report against column No.11 that vaginal swab and RBC and spermatazoon – not found. But against column No.9 urinal space was found congested. If that be so, such congestion might be the ultimate cause of frequent penetration which also inclines to believe that the victim was gang-raped before she was done to death in the manner as alleged by the prosecution. The Inquest Report, marked as Ext. 10, and the Post Mortem Report, marked as Ext. 9, of the dead body of Shilpi Khatun are quite consistent with the prosecution case as well as with the inculpatory confessional statements made by the condemned-prisoners regarding the manner of occurrence that the victim was done to death after she being gang-raped. The confessional statements made by the condemned-prisoners appear to us to be true and voluntary and there is nothing to disbelieve those statements. From the aforesaid confessional statements of the condemned-prisoners it is apparent that the victim, Shilpi Khatun was done to death after she being gang-raped by the condemned prisoners and the absconding convict-Aaizel @ Aazu @ Azizul Haque @ Azizur. All the condemned-prisoners in their aforesaid confessional statements have said corroborating each other that at the place of occurrence the absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur, at first, fell the victim Shilpi Khatun down on the ground at the alleged place of occurrence and raped her and then the other condemned-prisoners gang-raped her one after another and after the gang-rape was over absconding convict-Aaizel @ Aazu @ Azizul Haque @ Azizur strangulated the victim fastening her neck by her sharee which resulted in her death. The said sharee was found lying beside the dead body which has been marked as material Ext.I. The confessional statements of the concemned-presinorens lend assurance to this independent material evidence whereby Shilpi Khatun was strangulated to death causing ligature mark on her neck which are sufficient to form the basis of conviction of the absconding co-convict Aaizel @ Aazu @ Azizul Haque @ Azizur. Co-convict Aaizel @ Aazu @ Azizul Haque @ Azizur has been in
abscosion since inception of the case which is also a strong circumstance to show that he was concerned with the commission of the alleged gang-rape with murder.
P.W. 18 Dr. A.R.M.Mostayeen Billah was one of the members of the Medical Board who held the Post Mortem Examination upon the dead body of Shilpi Khatun and he put his signature on the Post Mortem Report, marked as Ext.9. It appears from the deposition of P.W. 18 as well as from the Post Mortem Report that the post mortem upon the dead body of Shilpi Khatun was conducted by a Board of three Medical Officers of which he was a member. The concerned Doctors in the Board ought to have given their utmost attention as experts on the physical and pathological condition of each part of the body and to give their considered medical opinion in respect of any abnormality of limbs with possible explanation for such abnormality. An omnibus statement that the death was due to asphyxia resulting from strangulation which was anti-mortem and homicidal in nature are not enough and not expected from the medical persons who are presumed to be experts . They ought to be specific in their findings and to the point in indicating the abnormalities found in the urinal organ to be congested ascertaining it’s specific cause when the Medical Board found the urinal organ of the dead body to be congested. In this case, their own report ought to have put them on alert that this might be a case of rape , as such, necessary further investigation ought to have been done by them. But unfortunately, the Board did not even consider it necessary to examine the discharge from vagina by a Chemical Examiner and without doing so how could they opine that vaginal swab, RBC and spermatazoon – not found. This only highlights their inefficiency and indifference to their professional work.
However, in consideration of the evidence on record including the inculpatory judicial confessional statements of the condemned-prisoners, the Inquest Report being the first recorded version of the offence based on actual observation as well as the Post Mortem Report, we have no hesitation to hold, inspite of the findings of the Doctors without any comment as to rape, that the victim, Shilpi Khatun was gang-raped by the condemned-prisoners alongwith the absconding convict- Aaizel @ Aazu @ Azizul Haque @ Azizur before she met her death which brings the offence under the ambit of Section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
In the instant case, conviction of the condemned-prisoners and the absconding convict-Aaizel @ Aazu @ Azizul Haque @ Azizur is solely based on the inculpatory judicial confessions of the condemned-prisoners supported by other material evidence and attending circumstances. Confession is manifestly a very important and convincing material for proving the offence committed by such persons making confession. According to the Rule of Law conviction can be based solely on the confession against it’s maker, if it is found voluntary and true though the Rule of Prudence may require some sort of corroboration with giving facts. It is not necessary that each and every circumstances mentioned in the confession regarding complicity of the accused must independently be corroborated as it is necessary in the case of using the confession of an accused against his co-accused. It is enough if the general trend of confession is substantiated by the evidence which would tally with what is contained in the confession. For ascertaining as to whether the confession is voluntary and true or not the Court has to examine the confession itself and also to consider the same in the light of other materials on record and broad probabilities of the case.
The next question arises, whether the confession can be the basis of conviction against the makers if found retracted. It is well settled that once a confession has been found to be true and voluntary, the conviction of the confessing accused can be based on the said confession, even if it is retracted. This view of ours finds support from the decisions in the cases of Joygun Bibi Vs. The State reported in 12 D.L.R. (SC) 157 and Hozrat Ali and Abdur Rahman -Vs.- the State reported in 42 D.L.R,. (HCD) (1990) 177.
It appears that, in the instant case, the alleged occurrence took place on 31.10.2002 at about 9-30 P.M. and, after the occurrence, on the same night at 12-30 P.M. the condemned-prisoner, Noor Islam was arrested and on the following day i.e. on 1.11.2002 the other 3 condemned prisoners were arrested by the Police. Thereafter, the condemned-prisoner, Noor Islam, on 2.11.2002, and the rest 3 condemned-prisoners, on 3.11.2002, were placed before the Magistrate- P.W. 17, Ashok Kumar Debonath for recording their judicial confessional statements and on those respective dates he recorded the confessional statements of all the 4 condemned prisoners. He has said that while recording their confessional statements he did not notice any mark of torture on their persons. From the confessional statements of the condemned-presoners, marked as Ext. 5, 6, 7 and 8, we find that while making these confessional statements they also did not disclose to the Magistrate that they were forced, tortured and compelled by Police in making such confessional statements and the same were not voluntary and true. P.W. 19 Abdur Ron Akand, the Investigation Officer also denied the defence suggestion that the condemned-prisoners were tortured after arrest and threatened to make the confessional statements. We find no reason to disbelieve the evidence of the learned Magistrate. No material could be elicited by the defence that the confession was the result of torture and maltreatment and hence these were not voluntary and not true as well. There is also nothing to show that the Police or any witness had any reason to falsely implicate the condemned-prisoners and the absconding convict in this case.
Further it appears that the learned Magistrate while recording the confessional statements of the condemned prisoners ascertained that the confessions were voluntary and true and there was also no complaint before him. We find that all the legal procedures were followed in recording the confessions and the learned Magistrate, P.W. 17 gave sufficient caution and also time for reflection before recording the confessions marked as Exts.5, 6, 7 and 8. The Tribunal below also ascertained the truth as well as the voluntariness of the confessions made by the condemned-prisoners. The learned Magistrate found that the condemned-prisoners gave a full and free account of the occurrence in order to satisfy that they along with absconding convict were really involved in the commission of the alleged gang-rape and murder of Shilpi Khatun. It appears from the record that the confession of the condemned prisoner Noor Islam was recorded on 2.11.2002 and of the rest 3 condemned prisoners on 3.11.2002 and, thereafter, all of them retracted their confessions on 22.4.2003 i.e. after four months alleging, for the first time, that Police upon torture compelled them to make such confessional statements which are not at all voluntary and true. The allegation of torture by the Police was raised at a very late stage and there having no material on record to substantiate the same, we are unable to place any reliance on the allegations made in the said retraction petitions. Nothing could be elicited from the cross-examination of the witnesses that the aforesaid confessions were not voluntary and true and there was also nothing to show that the confessions were obtained by torture or maltreatment of the Police or that the same was the result of inducement.
It is well-settled that once a confession is found to be true and voluntary, the conviction could be based solely on confession, even if it is retracted.
In the absence of any positive material to the contrary, the presumption of correctness of recording the confessional statements upon observing all the required legal formalities can very well be inferred and we have reason to believe that P.W. 17, on being satisfied that the accused would freely and voluntarily confess their guilt, recorded their confession and that accused also made no complaint before the Magistrate. We do not find any cogent reason as to why self-implication of the condemned prisoners in the commission of offence cannot be taken as true. Retraction of confession at an earliest opportunity some time may lend support to the defence plea that the confession was not voluntary one but for the bilated retraction of a confession as in the present case, without any material to support it, no such inference can be drawn. Rather, the consensus of judicial decisions are that an accused may be convicted even on retracted confession, if it is inculpatory and found to be voluntary and true. It has been further contended that prolonged Police custody immediately preceding the confession is sufficient, if not properly explained, to find the confession as involuntary. In the case of Abdur Rouf and others versus the State reported in 38 D.L.R. 197, the delay in producing the accused before the Magistrate from the Police custody was ignored and it is held, in the absence of any positive material to the contrary, the presumption of correctness of recording the confessional statement upon observing all formalities may very well be inferred . In the present case mere keeping three of the condemned prisoners in Police custody for two days does not ifso facto make the confession involuntary in nature. We are satisfied that all the legal formalities have been observed in this case by the Magistrate in recording the confessional statements marked as Exts. 5, 6, 7 and 8. There is nothing on record to show that the condemned-prisoners made the confessions out of fear or torture or maltreatment of the Police and or that the confession was the result of inducement.
Thus, we are inclined to hold that the aforesaid inculpatory confessional statements made by the condemned-prisoners are voluntary and true which can alone be the sole basis of their conviction.
On careful consideration of the evidence and materials on record we hold that the prosecution had satisfactorily proved by inculpatory confessional statements made by the condemned-presioners, attending circumstances and materials on record that the condemned prisoners 1) Noor Islam, 2) Ziaur Rahman @ Zia, 3) Jahangir @ Gani, 4) Hazil Uddin @ Azizur Rahman. and absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur killed Shilpi Khatun instantaneously after committing gang-rape on her and they have rightly been found guilty and as such convicted by the learned Judge of the Tribunal below under Section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
As regards the sentence passed against the condemned prisoners and absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur the learned Advocates appearing for them prayed for commutation of their sentence on ground of long delay in disposal of the Death Reference and other attending circumstances. Let us now consider as to whether there are extenuating circumstances for the commutation of sentence of death of the condemned prisoners as well as of the absconding convict.
It appears that at the time of making of confessional statements the age of the condemned prisoner, Noor Islam was 22 years, Ziaur Rahman, 18 years, Hajiluddin, 24 years and Jahangir Alam, 18 years. Furthermore, since arrest of the condemned-prisoners on 1.11.2002 they had been in custody for about 3 years prior to passing of their order of conviction and sentence on 4.9.2005 and they, having made true and full disclosure of their guilt in their confessional statements have been languishing in the condemned cell of the jail custody with much agony and anxiety. Moreover, from the date of making the Death Reference by the Tribunal below on 5.9.2005 about 5 ½ years have already elapsed, not due to any laches of the condemned prisoners, in the making Death Reference and the Appeals ready for disposal as a result of which also the condemned prisoners have undergone the mental agony and anxieties of gallows around their neck for a long period. Thus, on giving our careful consideration to the delay in disposal of the Death Reference and Appeals along with other factors as extenuating circumstances, we think that the ends of justice would be sufficiently met if we commute the sentence of death passed upon the condemned prisoners and the absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur to imprisonment for life . Considering the circumstances mentioned, we are not inclined to set aside the conviction of the condemned prisoners 1) Noor Islam, 2) Ziaur Rahman @ Zia, 3) Jahangir @ Gani, 4) Hazil Uddin @ Azizur Rahman. and absconding accused Aaizel @ Aazu @ Azizul Haque @ Azizur and at the same time we are also not inclined to accept the reference of death sentence while confirming the conviction and hence we hereby commute the sentence of death of all the aforesaid condemned prisoners and the absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur to imprisonment for life. At the same time we consider it expedient to add with the sentence of fine that, in default of payment of such fine as awarded by the Tribunal below, all the aforesaid condemned prisoners and the absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur are to suffer rigorous imprisonment for two years more each.
All the condemned prisoners and the absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur are entitled to get the benefit as provided under Sub-Section (1) of Section 35 A of the Code of Criminal Procedure.
For the reasons stated above we reject the Death Reference No. 143 of 2005 and also dismiss the Criminal Appeal No. 4095 of 2005 and the Jail Appeal Nos. 1060 of 2005, 1061 of 2005, 1062 of 2005 and 1063 of 2005 of the condemned prisoners with the modification of sentence of all the condemned prisoners and absconding convict Aaizel @ Aazu @ Azizul Haque @ Azizur from death to imprisonment for life and, as to their sentence to pay a fine of Tk. 1,00,000/- each, in default to pay the fine, they are to suffer rigorous imprisonment for two years more each.
MD. EMDADUL HAQUE AZAD, J: