Md. Ilias Hossain and others Vs. Bangladesh and others, (M. Enayetur Rahim, J. )

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Md. Abu Tariq, J. And M. Enayetur Rahim, J. Judgment 24.02.2011.

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Md. Ilias Hossain and others. …Petitioners Vs. State …Respondent

Code of Criminal Procedure (V of 1898)

Section 164

Evidence Act (I of 1872)

Section 8

The pws. 13 and 14 proved the seizer list by which various apparels of the victim and other goods were seized and such evidence also corroborated the confessional statem-ents of the convict persons that acid was thrown on the persons of the victims.

..(32)

Code of Criminal Procedure (V of 1898)

Sections 35A and 164

Nari-o-Shishu Nirjaton Daman Ain (VIII of 2000)

Section 4(1) (2) (kha)

From the confessional statement of convict Md. Shamsuzzaman alias Bipu it appears that he admitted with the aid of the present convict-appellants, he threw acid on the persons of the victims but he did not mention with an intention to kill victim Rehana. The prosecution failed to bring any other evidence proving that in order to kill Rehana, convict Md. Shamsuzzaman threw acid on her person. To convict an accused under section 4 (1) of the said Ain of 2000 the prosecution has to prove that with an intention to kill, acid or other corrosive substance was thrown on the person of victim or the victim succumbed to injuries caused by acid or other corrosive substance. Thus the offence, committed by convict, appellants, does not come within the mischief of section 4(1) of the said Ain but it attracts section 4(2) (kha) of the Ain of 2000. Accordingly, the conviction and sentence was modified and the appellants were convicted under section 4(2) (kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced for rigorous imprisonment for 10 years with a fine of Tk. 20,000.00 in default to suffer imprisonment for one year more. The appellants will get benefit of section 35A, Cr. P.C.      …(42, 43 & 52)

 Mr. Zahirul Islam, Advocate

–For the petitioner

Mr. Md. Nurul Haque, Asstt. Attorney General with

Mr. Kazi Ebadot Hossain, Asstt. Attorney General

….For the respondent

Judgment

M. Enayetur Rahim, J:

This appeal is directed against the judgment and order of conviction and sentence dated 20.05.2003 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Chandpur in Nari-O-Shishu Nirjatan Daman Case No.43 of 2000 convicting the appellants under Section 4(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentencing them to suffer imprisonment for life with a fine of Tk.1,00,000/- in default to suffer rigorous imprisonment for 3 (three) years more.

1. 2.         The prosecution case, in short, is that P.W-3, victim-Rehana Akhter alias Bina is the daughter of P.W-1, Md. A. Hai Bhuiyan and Rehana Akhter was a student of Class XII of Galluk Adarsha College at the relevant time; some unknown persons used to send letters to Rehana Akhter offering love and taking account of that situation P.W-1 decided to give marriage to Rehana Akhter with one Imam Hossain; hearing about the settlement of the said marriage Imam Hossain was also threatened by some young men, who asked him not to marry Rehana Akhter; on 11.08.2000 at the evening P.W-3 Rehana Akhtar and her younger daughter P.W-4 Sultana Rajia while had been studying, at their room, P.W-5 Shahadat Hossain alias Roni, younger brother of them, came to that room and asked them to have their dinner; at that time at about 10.15 P.M a youngman threw acid through the eastern side window of the room aiming them and thereafter fled away. As a result, P.W-3 Rehana Akhter, P.W-4 Sultana Rajia and P.W-5 Shahadat Hossain received serious burn injuries on the different parts of their persons. Hearing the alarm of them the informant and P.W-2 Most. Shahanaz Begum, the wife of the informant, came to the place of occurrence and then the victims were taken to Chandpur Sadar Hospital; after getting primary treatment at Chandpur Sadar Hospital they were admitted in burn unit of Dhaka Medical Collage Hospital. When the said victims were under treatment, the P.W-1 on 13.08.2000 lodged a First Information Report with the police station.
2. 3.         On the basis of the First Information Report lodged by the P.W-1, the police started a case and its investigation. Police arrested the present convict-appellant and three others namely, Md. Ilias Hossain, Md. Monir Hossain and Md. Mamun Mirza. All the above four accused persons eventually made statement under Section 164 of the Code of Criminal Procedure before P.W-10 A. B. M Abdul Fattah, Magistrate 1^st Class, confessing their guilt. The investigating officer on completion of the investigation submitted charge sheet against the said accused persons under Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain,2000.
3. 4.         The case being ready for trial all the charge sheeted accused persons put on trial before the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Chandpur. The learned Tribunal framed charges against the all charge sheeted accused persons under Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain, to which they pleaded not guilty and claimed to be tried.
4. 5.         At the time of the trial the prosecution in all examined 21 (twenty one) witnesses to prove its case. The defence cross-examined all the prosecution witnesses but did not adduce any defence witness.
5. 6.         The case of the defence, in short, is that the accused persons were implicated in the case falsely and out of torture of the police and getting fear, they had compelled to make the statement under Section 164 of the Code of Criminal Procedure before the Magistrate.
6. 7.         On conclusion of the trial the learned Judge of the Tribunal by the judgment and order dated 20.05.2003 found the present appellants guilty under Section 4(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentenced them to suffer imprisonment for life with a fine of Taka 1,00,000/-, in default to suffer rigorous imprisonment for 3(three) years and convicted Shamsuzzaman Bipu under Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentencing him to suffer imprisonment for life and also with a fine of Tk.1,00,000/- in default to suffer imprisonment for 3(three) years more and other 3(three)accused persons were convicted under Section 4(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentenced them for imprisonment for life with a fine of Taka 1,00,000/-, in default to suffer rigorous imprisonment for 3(three) years and convicted the Shamsuzzaman Bipu. 
7. 8.         Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the present convict-appellants are thus before us by preferring this appeal.
8. 9.         Md. Zahirul Islam, the learned Advocate appears on behalf of the appellant and placed the impugned judgment and order of conviction and sentence and other material evidence on record before us. Mr. Islam submits that the learned Tribunal acted illegally in convicting the appellant, though the prosecution failed to prove the case beyond reasonable doubt against him. He further submits that the confessional statements under Section 164 of the Code of Criminal Procedure of the convict appellants were obtained by torture and those were not true and voluntary.
9. 10.     On the other hand Mr. Kazi Ebadot Hossain, the learned Assistant Attorney General appearing for the State submits that the learned Tribunal did not commit any error or illegality in convicting the appellants. The appellants them self admitted their guilt by making confessional statement under Section 164 of the Code of Criminal Procedure before the Magistrate, 1^st class and as such he prays for dismissal of the appeal.
10. 11.     Heard the learned Advocate of the respective parties, perused the impugned judgment and order of conviction and sentence and material evidence available on the record.
11. 12.     It appears from the impugned judgment and order of conviction and sentence that the Tribunal itself observed to the effect:

“B­m¡QÉ j¡jm¡u ¢iL¢Vjœu­L H¢pX ¢e­rf Ll¡l OVe¡l ®L¡e fËaÉrc¢nÑ p¡r£ e¡Cz”

1. 13.     But the Tribunal despite that finding, relying on the confessional statements under Section 164 of the Code of Criminal Procedure of the found them guilty and awarded the conviction and sentence.
2. 14.     We have also examined the evidence of P.W-1, the informant Md. A. Hai Bhuiyan, P.W-2 Most. Shahnaj Begum mother of the victim, P.W-3 Rehana Akhter alias Bina, the main victim, P.W-4 Sultana Rajia, another victim, P.W-5, Shahadat Hossain alias Roni, the other victim, P.W-6 Shah Alam Bhuiyan, the cousin of the informant, P.W-8 Md. Amir Hossain Bhuiyan, younger brother of the informant, P.W-9 Md. Jitu Mia, P.W-12 Md. Abu Taleb Bhuiyan, P.W-14 Md. Ali alias Mohammad Hossain, P.W-15 Haji Mojammal Haque Bhuiyan nephew of the informant. In their respective deposition and cross-examination they categorically stated that they did not see the occurrence of throwing acid by the accused persons. But the said witnesses deposed that after the occurrence they came to know that all the four accused persons have committed the offence.
3. 15.     In view of the above facts and circumstances, we are of the view that it is not at all necessary to discuss elaborately the evidence of the above witnesses.
4. 16.     In the instant case the conviction was based mainly, relying on the confessional statement under Section 164 of the Code of Criminal Procedure of the convict persons.
5. 17.     Now let us consider, whether the confessional statements of the present appellants and three other convicts are true and voluntarily and whether the conviction can be awarded relying on the same.
6. 18.     The confessional statement under Section 164 of convict-Md. Shamsuzzaman alias Bipu is as follows:

“B¢j C¢mu¡R, h£e¡ HLC ú¥­m ®mM¡fs¡ Lla¡jz I pj­u Bj¡l h£e¡l p¡­b ­fËj ¢Rmz 99 p­e Bjl¡ ¢aeSe Hp, Hp, ¢p, fl£r¡ ®cCz Bj¡l¡ ®gm L¢lz h£e¡ L­m­S i¢aÑ q|uz Bjl¡ Bh¡l fl£r¡ ®cCz Bjl¡ Bh¡l ®gm L¢lz fl£r¡ ®n­o B¢j Y¡L¡u ¢N­u Q¡L¥l£ L¢lz p¡­s ¢aej¡p fl h¡s£­a B¢pz h¡s£­a Bp¡l 2/3 ¢ce fl C¢mu¡R J j¡j¤­el p¡­b ®cM¡ quz B¢j C¢mu¡­Rl L¡­R h£e¡l Mhl S¡e­a Q¡Cz C¢mu¡R h­m ®k, h£e¡l ¢h­u ¢WL q­µRz B¢j C¢mu¡R­L h¢m ®k, ¢L Ll¡ k¡uz

aMe C¢mu¡R h­m ®k, H¢pX j¡lz a¡q­m Bl ¢h­u q­h e¡z j¡j¤­el L­R H¢pX Q¡C­m ®p l¡¢S  quz a­h L¡E­L hm­a ¢e­od L­lz Hlfl B¢j h¡s£­a Q­m B¢pz ¢hL¡­m B¢j j¡j¤­el L¡R ®b­L H¢pX H­e C¢mu¡­Rl h¡s£­a H¢pX ®l­M B¢pz

fl¢ce påÉ ®hm¡ j¡j¤e ®c¡L¡­e k¡Ju¡l pju l¡Ù¹¡u Bj¡l p¡­b ®cM¡ quz j¡j¤e­L ¢e­u B¢j C¢mu¡­Rl h¡s£­a B¢pz C¢mu¡­Rl h¡s£­a C¢mu¡­Rl j¡ Bj¡­cl Q¡-j¤¢s ®cuz C¢mu¡R, j¢el J ®j¡h¡lL­L j¡R dl¡l Lb¡ h­m ¢e­u B­pz C¢mu¡­Rl Ol ®b­L ØV£­ml HL¢V NÔ¡p ®eCz ®h¡am i¢aÑ H¢pX ¢e­u Bjl¡ h¡s£l Ešl f¡­n ¢Nu¡ NÔ¡­p f¡¢e ¢eu¡ H¢pX ®Vø L¢lz j¡j¤e h­m ®k, H¢pX i¡­m¡ e¡z aMe j¡j¤e a¡l ®c¡L¡e ®b­L Bh¡l H¢pX Be­a h­mz B¢j C¢mu¡R j¢el j¡j¤e Nõ¡L k¡C H¢pX Be¡l SeÉz hË£­Sl L¡­R Bj¡­cl ®l­M j¡j¤e ®h¡am ¢eu¡ ®c¡L¡e ®b­L H¢pX ¢e­u B­pz Bj¡­L H¢p­Xl ®h¡am ¢c­u j¡j¤e ®c¡L¡­e Q­m k¡uz

Bjl¡ ¢aeSe i¥Cu¡ h¡s£l L¡­R B¢pz C¢mu¡R j¢el­L h£e¡ ¢L L­l ®c­M Bp­a h­mz j¢el ®c­M H­p h­m h£e¡ ®mM¡fs¡ Ll­Rz C¢mu¡R h­m ®k, HC-C pjuz B¢j ®h¡am ®b­L H¢pX ¢eu¡ h¡s£l ¢ia­l k¡Cz C¢mu¡R j¢el h¡s£l h¡C­l b¡­Lzz B¢j h£e¡­cl O­ll f§hÑ f¡­nl S¡e¡m¡ ¢cu¡ h£e¡l N¡­u H¢pX j¡¢lz H¢pX ®j­l ®c±­s h¡s£l h¡C­l H­p ®c±s f§hÑ ¢c­L k¡Cz

k¡Ju¡l f­b HL¢V M­sl f¡l¡u NÔ¡p¢V m¤¢L­u ®l­M C¢mu¡­Rl h¡s£­a ¢N­u C¢mu¡­Rl M¡­V ö­u f¢sz pL¡­m C¢mu¡p­L O¤­j ®l­M B¢j Q­m B¢pz I¢ce Bj¡l h¡s£­a ®b­L fl¢ce B¢j Y¡L¡u Q­m k¡Cz ®m¡Lj¤­M ö­e¢R ®k, h£e¡, Eo¡ J l¢el N¡­u H¢pX f­s­Rz HC Bj¡l Sh¡eh¢¾cz

1. 19.     The confessional statements under Section 164 of the Code of Criminal Procedure of convict Md. Monir Hossain is as follows:

“B¢j Y¡L¡u L¡lM¡e¡u nË¢j­Ll L¡S L¢lz fÊ¡u HLj¡p B­N B¢j Bj¡­cl h¡s£­a B¢pz 11/8/2000Cw a¡¢lM h¡s£­a ¢Rm¡jz l¡­a h¡s£­a i¡a ®M­a Bp­m Bj¡l ®SW¡­a¡ i¡C C¢mu¡R Hhw j¡j¡­a¡ i¡C p¡jR¤‹¡j¡e ¢hf¤ Bj¡­L X¡­Lz B­cl p¡­b p¡jR¤m Bm­jl ®R­m j¡j¤e ¢Rmz

a¡­cl p¡­b C¢mu¡­Rl O­l ®N­m C¢mu¡­Rl j¡ Bj¡­cl Q¡-j¤¢s ®M­a ®cuz l¡a 09.00 V¡l ¢LR¤ f­l Bjl¡ Q¡lSe I Ol ®b­L ®hl q­u h¡s£l HL ®L¡­e f¤L¥lf¡­s k¡Cz aMe ¢hf¤­L HL¢V NÔ¡p J HL¢V ®h¡am ®hl Ll­a ®c¢Mz NÔ¡­p L­l f¤L¥l ®b­L f¡¢e ®eu Hhw ®h¡am ®b­L m¡m­Q dl­el f¡¢el j­a¡ ¢S¢ep ®hl L­l NÔ¡­pl f¡¢el p¡­b ¢jn¡uz Hlfl h­m ®k, HC H¢pX eø q­u ®N­Rz HLb¡ h­m ®pV¡ ®p f¤L¥­l ®g­m ®cuz

Hlfl B¢j l¡Ù¹¡l d¡­l B¢pz ®pM¡­e j¡j¤e Bj¡­cl hp­a h­m h¡s£­a ®M­a k¡uz Bj¡l i¡C ®j¡h¡lL aMe Bj¡­cl p¡­b ¢Rmz ®j¡h¡lL f­l h¡s£­a Q­m k¡uz j¡j¤epq Bjl¡ 4Se h¡S¡­l k¡Cz j¡j¤e a¡­cl ®c¡L¡e ®b­L ®h¡a­m L­l H¢pX ¢e­u B­p Hhw ¢hf¤­L ®cuz j¡j¤e h¡S¡­l ­b­L k¡uz Bjl¡ 3 Se i¨Cu¡ h¡s£­a B¢pz ®pM¡­e ¢hf¤ Bj¡­L h­m h£e¡ ¢L L­l a¡ ®c­M Bp­az B¢j ¢Nu¡ ®c­M H­p h¢m ®k, h£e¡ fs¡l ®V¢h­m B­Rz aMe ¢hf¤ H¢pX NÔ¡­p Y¡­mz ¢hf¤ h¡s£­a Y¥­Lz B¢j J C¢mu¡R l¡Ù¹¡l d¡­l Q­m B¢pz

1. 20.     The confessional statement under Section 164 of the Code of Criminal Procedure of convict Md. Ilias Hossain is as follows:

“B¢j, ¢hf¤ J h£e¡ HLC ú¥­m fsa¡jz 1999 p­e h£e¡ Hp, Hp, ¢p, f¡n L­l L­m­S i¢aÑ quz B¢j Bl ¢hf¤ ®gm L¢lz ¢hf¤ h£e¡l p¡­b ®fË|j Ll­a¡z 2000 p¡­m Bjl¡ Bh¡l fl£r¡ ®cC Hlfl ¢hf¤ Y¡L¡ Q­m k¡uz

p¡­s ¢ae j¡p fl ®p h¡s£­a B­pz Bj¡l p¡­b J j¡j¤­el p¡­b a¡l ®cM¡ quz ¢hf¤ Bj¡­cl h£e¡l Lb¡ ¢S­‘p L­lz B¢j S¡e¡C ®k, h£e¡l ¢h­u ¢WL q­u k¡­µRz aMe ¢hf¤ ¢S­‘p L­l ®k, ¢L Ll¡ E¢Qaz B¢j hmm¡j ®k a¥C h£e¡­L H¢pX j¡lz j¡j¤e hm­m¡ ®k, ®p H¢pX ®c­hz a­h a¡l Lb¡ L¡E­L ®ke hm¡ e¡ quz hªqØf¢ah¡l ¢hL¡­m ¢hf¤ j¡j¤­el ®c¡L¡­e ¢N­u H¢pX B­ez H¢pX Bj¡­cl O­l l¡­Mz

fl¢ce öœ²h¡l 11/8/2000Cw påÉ¡u ¢hf¤ j¡j¤e Bj¡­cl h¡s£­a k¡uz B¢j j¢el J ®j¡h¡lL­L ®X­L B¢ez Bj¡l j¡ Bj¡­cl­L Q¡-j¤¢s ®cuz ®M­u B¢j H¢p­Xl ®h¡am ®eCz ¢hf¤ Bj¡­cl Ol ®b­LC HL¢V ØV£­ml NÔ¡p ®euz ¢e­u Bj¡­cl h¡s£l Ešl f¡­n B¢pz ¢hf¤ f¤L¥l ®b­L NÔ¡­p f¡¢e ­euz ¢e­u Bj¡­cl h¡s£l Ešl f¡­n B¢pz ¢hf¤ f¤L¥l ®b­L NÔ¡­p f¡¢e ®euz j¡j¤epq NÔ¡­p H¢pX ®Vø L¢lz

j¡j¤e hm­m¡ ®k, HC H¢pX i¡­m¡ euz aMe B¢j, j¡j¤e, ¢hf¤, j¢el Bh¡l Nõ¡L h¡S¡­ll ¢c­L lJu¡e¡ ®cCz hË£­Sl ®N¡s¡u B¢j, j¢el, ¢hf¤ c¡¢s­u ¢Rm¡jz j¡j¤e ®c¡L¡e ®b­L H¢pX H­e ¢hf¤l q¡­a ®cuz ®p Bh¡l ®c¡L¡­e Q­m k¡uz B¢j, ¢hf¤, j¢el H¢pX ¢e­u i¥Cu¡ h¡s£l L¡R¡L¡¢R B¢pz B¢j j¢el­L h¢m, h£e¡ ¢L L­l ®c­M Bp¡l SeÉz

j¢el ®c­M H­p h­m h£e¡ fs¡l ®V¢h­m B­Rz B¢j ¢hf¤­L h¢m ®k, HC-C pju, a¥C NÔ¡­p H¢pX Y¡mz aMe ¢hf¤ NÔ¡­p H¢pX ®Y­m Bj¡l q¡­a ®h¡am ®cuz ¢hf¤ Bj¡­cl h­m ®a¡l¡ c¡s¡, ®LE B­p ¢Le¡ ®cMz NÔ¡­p H¢pX ¢e­u ¢hf¤ ¢ia­l k¡uz B¢j M¡¢m ®h¡am¢V LQ¥l£f¡e¡l Efl ®g­m ¢c­u j¢elpq jp¢S­cl O¡Vm¡u Q­m k¡Cz ®pM¡­e j¢Sh, BCEh, a¡S¤m, B¢j, j¢el HL­œ ¢Rm¡jz H­cl p¡­b Lb¡ hm­a b¡¢Lz 2/3 ¢j¢eV fl i¥Cu¡ h¡s£ ®b­L ¢QvL¡l ö¢ez ¢QvL¡l ö­e Bjl¡ I h¡s£­a k¡Cz ¢hf¤ ®c±­s Bj¡­cl p¡j­e ¢c­u f§hÑ ¢c­L Q­m k¡uz

Bjl¡ ph¡C h¡s£­a Y¥­L h£e¡ Bl l¢e­L L¡æ¡la AhÙÛ¡u ®c¢Mz aMe B¢j Bl j¢el h¡s£l ¢c­L k¡Cz h¡s£­a ¢N­u ®c¢M ¢hf¤ Bj¡l M¡­V ö­u B­Rz B¢jJ HLC p¡­b ö­u b¡¢Lz ¢hf¤ pL¡­m E­W Bj¡­L e¡ S¡¢e­u Q­m k¡uz B¢j Hlfl h¡s£­aC ¢Rm¡jz”

1. 21.     The confessional statement under Section 164 of the Code of Criminal Procedure of convict-Md Mamun Mirza is as follows:

“C¢mu¡R J ¢hf¤ Bj¡l p¡­b 2000 p¡­m Hp, Hp, ¢p fl£r¡ ®cuz Bj¡­cl hå¥aÄ quz ¢hf¤l p¡­b h£e¡l ®fË­jl Lb¡ B¢j ö­e¢Rm¡jz hªqØf¢ah¡l ¢hf¤ J C¢mu¡­Rl p¡­b Bj¡l påÉ¡ ®hm¡u ®cM¡ quz Bj¡l p¡j­e ¢hf¤ C¢mu¡R­L h£e¡l Mhl ¢S‘p¡ L­lz C¢mu¡R h­m ®k, h£e¡l ¢h­u ¢WL q­µRz

aMe ¢hf¤ ¢L Ll¡ k¡u hm­m C¢mu¡R h­m ®k, a¥C H¢pX j¡lz Bj¡­cl hÉ¡V¡l£l ®c¡L¡e ®b­L H¢pX ¢c­a f¡l­h¡ ¢Le¡ h­m C¢mu¡R ¢S­‘p Ll­m B¢j h¢m ®k, H¢pX ¢c­a f¡l­h¡ a­h Bj¡l Lb¡ L¡E­L hm­a ¢e­od L¢lz ¢hf¤ ¢hL¡­m Bj¡l ®c¡L¡e ®b­L 500/- V¡L¡ ¢c­u HL¢V ®h¡a­m L­l H¢pX B­ez H¢p­Xl f¢lj¡e HL ®f¡u¡l Lj q­hz öœ²h¡­l påÉ¡ ®hm¡ ¢hf¤l p¡­b Bj¡l f­b ®cM¡ quz ¢hf¤ Bj¡­L C¢mu¡­Rl h¡¢s­a ®k­a h­mz Bjl¡ C¢mu¡­Rl O­l ®N­m C¢mu¡­Rl j¡ Q¡-j¤¢s ®cuz

C¢mu¡R j¡R dl¡l Lb¡ h­m j¢el, ®j¡h¡lL­L ®X­L B­ez Q¡-j¤¢s ®M­u Bjl¡ fy¡QSe O­ll h¡C­l k¡Cz C¢mu¡R H¢p­Xl ®h¡am J HL¢V NÔ¡p ®euz  Bjl¡ C¢mu¡­Rl h¡s£l Ešl f¡­n f¤L¥­ll f¡­s k¡Cz a¡lfl ¢hf¤ NÔ¡­p f¡¢e ®euz B¢j NÔ¡­p H¢pX Y¡¢mz B¢j h¢m ®k, HC H¢pX i¡­m¡ euz aMe ¢hf¤ Bl C¢mu¡R h­m ®k, a¡­cl i¡­m¡ H¢pX ¢c­a q­hz B¢j, ¢hf¤, C¢mu¡R J j¢el h¡S¡­ll ¢c­L lJu¡e¡ qCz ®j¡h¡lL a¡l h¡s£­a Q­m ¢N­u¢R­m¡z

NmÓ¡L h¡S¡­l N­u hË£­Sl ¢eLV c¡s L¢l­u B¢j ®c¡L¡­e k¡Cz ¢hf¤l ¢eLV ®b­L ®h¡am¢V ¢e­u B¢j ®c¡L¡e-H ¢N­u H¢pX ¢e­u H­p ¢hf¤­L ®cCz B¢j a¡­cl p¡­b Bl k¡C¢ez ®c¡L¡­e ¢Rm¡jz O¾V¡/­cs O¾V¡ f­l h¡S¡­l ®m¡Lj¤­M ö¢e ®k, Bhc¤m q¡C i¥Cu¡l HL  ®R­m, c¤C ®j­u­L ¢LR¤ ¢c­u SÆ¡¢m­u ®cu¡ q­u­Rz HC Bj¡l Sh¡eh¢¾cz”

1. 22.     On scanning of the above confessional statement of the 4(four) convict, it appears to us that those confessional statements are inculpatory in nature. The pertinent statement of convict Shamsuzzaman Bipu is that;

“”B¢j h£e¡­cl O­ll f§hÑ f¡­nl S¡e¡m¡ ¢c­u h£e¡l N¡­u H¢pX j¡¢lz H¢pX ®j­l ®c±­s h¡s£l h¡C­l H­p ®c±­s f§hÑ ¢c­L k¡Cz”

1. 23.     From the statement of convict-Ilias Hossain, it appears that he had advised convict Md. Shamsuzzaman alias Bipu to throw acid on the person of victim Bina and he helped Bipu in collecting acid. From the statement of convict -Monir Hossain it appears that before committing the offence all the accused persons met in his house and they all went to the bazar namely, Gallak Market to collect acid. Convict-Mamun Mirja admitted in his statement that he supplied the acid from their shop of battery.
2. 24.     P.W-10 A.B.M Abdul Fattah, Magistrate 1^st Class, who recorded the confessional statement of the convict appellants, in his deposition categorically stated that while he was serving at Chandpur as a Magistrate 1^st Class he recorded the statement of accused-Monir on 17.08.2000 and on 20.08.2000 recorded the statement of accused-Md. Shamsuzzaman alias Bipu, Ilias Hossain and Md. Mamun Mirza respectively. He identified those statements as exhibits-4, 5, 6, 7, 8 and his signature on those as exhibits-4/1 4/6, 5/1 5/6, 6/1 6/6, 7/1 7/6, 8/1 8/6 respective. This witness also deposed that he after observing all the legal formalities and complying the provision of law recorded the statement of the accused persons under Section 164 of the Code of Criminal Procedure.
3. 25.     In cross-examination he denied the defence suggestion that he recorded the statement in not complying the mandatory provision of law and the accused persons were sick and he also stated to the effect:

“”Bp¡j£ Bj¡l ¢eLV HC j­jÑ A¢i­k¡N L­l e¡C ®k, f¤¢mn a¡q¡¢cN­L ¢ekÑ¡ae L¢lu¡¢Rmz”

1. 26.     P.W-21, Sub-Inspector Swapan Kumar Majumder, the investigating officer, in his cross-examination denied the defence suggestion that he managed to record the statement of the accused persons upon torturing on them.
2. 27.     At the time of the examination of the convict appellant under Section 342 of the Code of Criminal Procedure, the learned Judge of the Tribunal had drawn attention to them with regard to their confessional statement under Section 164 of the Code of Criminal Procedure before the Magistrate. But the convict persons did not say anything at the time of said examination about the alleged torture of the police, which prompted them to make such statements.
3. 28.     Having discussed as above, we have no hesitation to hold that the confessional statements under Section 164 of the Code of Criminal Procedure of all the four convict are true and voluntarily and those are free from doubt.
4. 29.     P.W-7 Md. Mobarak Hossain, a seizer list witness, who is the cousin of convict-Monir, in his deposition stated that on the day of occurrence at 8.00 P.M he saw that on the bank of the pond Shamsuzzaman alias Bipu had been dropping some liquid in a still glass. Thereafter, he threw the glass.
5. 30.     P.W-9 Md. Jitu Mia, another seizer list witnesses, in his deposition stated that;

“Na 18/8/2000Cw a¡¢l­M c¡­l¡N¡ p¡­qh Bp¡j£ p¡jR¤‹¡j¡e Jl­g ¢hf¤ J ®j¡x j¡j¤e ¢jSÑ¡­L ¢euv Bj¡­cl Hm¡L¡u Bp¡l fl a¡q¡­cl­L HS¡q¡lL¡l£l h¡s£l p¡j­e Be¡l fl  Bjl¡ ®pM¡­e k¡Cz aMe EJ² c¤CSe Bp¡j£ Bj¡­cl pÇj¤­M S¡e¡u ®k,  a¡q¡l¡ ®k fÔ¡¢ø­Ll ®h¡a­m L¢lu¡ SMj£­cl H¢pX j¡¢lu¡¢Rm a¡q¡ l¡Ù¹¡l c¢re f¡­n LQ¥¢lf¡e¡u ®g¢mu¡ ¢cu¡¢Rmz”

1. 31.     P.W-11 Md. Abdul Goni Patwary alias Babul, another seizer list witnesses corroborated the above assertion of P.W-9 and he also identified his signature on it as exhibit-3/2 and the plastic bottle, material exhibit-II.
2. 32.     P.W-13, Sayed Shafiqul Hider alias Shahin, P.W-14 Md. Ali alias Mohammad Hossain proved the seizer list as exhibit-9 and their signature on it as exhibits-9/1 and 9/2 respectively, by which various apparels of the victims and other goods were seized. This evidence also corroborated the confessional statements of the convict persons that acid was thrown on the persons of the victims.
3. 33.     P.W-20 Dr. K.A Tajam in his deposition stated that on 18.08.2000, he examined victim Rehana Akhter alias Bina and found the following injuries:

(1) One burn spot on right frontal region of size 1¹/₂” X 1¹/₂” (Permanent disfiguration of face).

(2) Multiple small burn area on the right cheek causing permanent disfiguration of face.

(3) One burn area in the right scapular region of size 2” X 1”.

(4) Multiple small burn area on the right knee joint.

1. 34.     He identified the medical certificate Exhibit-10 and his signature and on it Exhibit-10/1. On very that day he also examined victim Sultana Rajia alias Usa and found the following injuries:

(1)One small burn spot on the left cheek of size ¼” X ¼”.

(2)Multiple small burn area on the left and right arm and fore arm.

(3)Multiple small burn area on the right thigh.

1. 35.     He also examined victim Shahadat Hossain and found the following injuries:

(1)    Multiple small burn spots on both thigh, abdomen and back.

(2)    One small burn area on right cheek.

1. 36.     He also identified the respective medical certificate and his signature on those as exhibits-11, 11/1 and 12, 12/1 respectively.
2. 37.     From exhibit-10 it appears that the P.W-10 mentioned that the injury No.1 and 2 caused permanent disfiguration of the face of victim Rehana Akhter.
3. 38.     P.W-3 Rehana Akhter alias Bina in his deposition stated that:

“”H¢p­X Bj¡l X¡e f¡­nl Lf¡m, N¡m J Nm¡ fkÑ¿¹ Tmp¡Cu¡ k¡u Hhw HC p¡r£ Eš² H¢p­X Tmp¡­e¡ c¡N Aœ Bc¡ma­L ®cM¡ez

Eš² H¢p­X A¡j¡l X¡e f¡­nl ¢fW qC­a ®L¡jl fkÑ¿¹J Tmp¡Cu¡ k¡uz Eš² H¢p­X Bj¡l X¡e f¡­ul q¡V¥l Ef­l J ¢e­Q Hhw X¡e q¡­al h¡ý Le¤C fkÑ¿¹ Tmp¡Cu¡ k¡u Hhw HC p¡r£ Eš² H¢p­X Tmp¡­e¡ c¡NJ Aœ Bc¡m­a ®cM¡ez ———-z H¢p­X Bj¡l X¡e f¡­nl ¢fW qC­a ®L¡js fkÑ¿¹ Tmp¡­e¡ c¡N Bc¡ma ®c¢M­a Q¡C­m B¢j a¡q¡ ®cM¡Cz”

1. 39.     From material exhibit-XIII, the photograph of the victim Rehana Akhter immediately after the occurrence; it appears that on the left side of the cheek, there is a black injury mark, but that injury can not be treated as the permanent disfiguration of the face. So far the other victims are concerned the Doctor did not opine that their injuries were caused permanent disfiguration, of any part of their respective body. The learned Tribunal itself saw the victim while victim Rehana Akhter deposed before it but the learned Tribunal did not observed in the impugned judgment that the face of victim Rehana Akhter has disfigured.
2. 40.     In view of the said facts and circumstances we are of the view that the prosecution proved that convict-Md. Shamsuzzaman alias Bipu with the help of convict-Ilias, Monir and Monsur Mirza, threw acid on the person of victims and caused several burn injuries on their respective persons but considering the material exhibit-XIII, the photograph, and the injuries shown before the learned Tribunal there is a reasonable doubt whether the face of the victim Rrhana Akhtar has disfigured.
3. 41.     The learned Tribunal convicted Md. Shamsuzzaman alias Bipu under Section 4(1) and convicted the present appellants under Section 4(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain. Section 4 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 is as follows:

4z cqeL¡l£, CaÉ¡¢c fc¡bÑ à¡l¡ pwO¢Va Afl¡­dl n¡¢Ù¹z (1) k¢c ®L¡e hÉ¢J² cqeL¡l£, ruL¡l£ Abh¡ ¢ho¡J² fc¡bÑ à¡l¡ ®L¡e ¢nö h¡ e¡l£l jªa¥É OV¡e h¡ jªa¥É OV¡­e¡l ®Qø¡ L­le, a¡q¡ qC­m EJ² hÉ¢J² jªa¥Éc­ä h¡ k¡h‹£he pnËj L¡l¡c­ä cäe£u qC­he Hhw Cq¡l A¢a¢lJ² Ae§dÑh HL mr V¡L¡ AbÑc­äJ cäe£u qC­he;

(2) k¢c ®L¡e hÉ¢J² ®L¡e cqeL¡l£, ruL¡l£ h¡ ¢ho¡J² fc¡bÑ à¡l¡ L¡e ¢nö h¡ e¡l£­L Hjei¡­h Bqa L­le k¡q¡l g­m EJ² ¢nö h¡ e¡l£l cª¢øn¢J² h¡ nËhZn¢J² eø qu h¡ nl£­ll ®L¡e A‰,  NÊ¢¿Û h¡ Awn ¢hL«a h¡ eø qu h¡ a¡q¡l nl£­ll AeÉ ®L¡e ÙÛ¡e Bqa qu, a¡q¡ qC­m EJ² ¢nöl h¡ e¡l£l-

(L) cª¢øn¢J² h¡ nËhZn¢J² eø h¡ j¤Mjäm, Ù¹¹e h¡ ®k±e¡wN ¢hL«a h¡ eø qJu¡l ®r­œ EJ² hÉ¢J² jªa¥Éc­ä h¡ k¡h‹£he pnËj L¡l¡c­ä cäe£u qC­he Hhw Cq¡l A¢a¢lJ² Ae§dÑh HL mr V¡L¡l AbÑc­äJ cäe£u qC­he;

(M) nl£­ll AeÉ ®L¡e AwN, NË¢¿Û h¡ AeÉ ®L¡e Awn ¢hL«a h¡ eø qJu¡l h¡ nl£­ll ®L¡e ÙÛ¡­e BO¡a f¡Ju¡l ®r­œ, EJ² hÉ¢J² Ae¢dL ®Q±Ÿ hvpl ¢L¿º Ae§Ée p¡a hvp­ll pnËj L¡l¡c­ä cäe£u qC­he Hhw Cq¡l A¢a¢lJ² Ae§dÑh f’¡n q¡S¡l V¡L¡l AbÑc­äJ cäe£u qC­he;

1. 42.     From the confessional statement under Section 164 of the Code of Criminal Procedure it appears that convict-Md. Shamsuzzaman alias Bipu admitted with the aid of the present convict-appellants, he threw acid on the persons of the victims. But in his statement he did not mention to the effect that with an intention to kill victim-Rehana, he threw acid on her person. Save and except the statement of convict-Md. Shamsuzzaman alias Bipu and the present appellant, who admitted that they aided convict-Md. Shamsuzzaman in committing the offence, the prosecution failed to bring any other evidence that in order to kill victim-Rehana Akhter alias Bina, convict-Md. Shamsuzzaman threw acid on her person. To convict an accused under Section 4(1) of the Nari-O-Shishu Nirjatan Ain,2000, the prosecution must have proved that with an intention to kill, acid or other corrosive substance was thrown on the person of victim or the victim succumbed to injuries caused by acid or other corrosive substance. Thus, the offence, which has proved, does not come within the mischief of Section 4(1) of the Nari-O-Shishu Nirjatan Daman Ain,2002.
2. 43.     Section 4(2)(ka) of the Nari-O-Shishu Nirjatan Ain,2000 provides punishment, for causing “¢hL«a h¡ eø’ of eye sight or hearing power, face, breast and private parts of the body by throwing acid or other corrosive substance. To convict a person under Section 4(2)(ka) of the Nari-O-Shishu Nirjatan Ain, 2000, the prosecution has to prove that by sustaining injury/injuries by acid or other corrosive substance, the victim has lost her eye sight, hearing power, or disfigured (¢hL«a h¡ eø) face, breast and private parts of the body.
3. 44.     In the instant case in the medical report, exhibit-10, the injury No.1 and 2 have been mentioned as permanent disfiguration but material exhibit-XIII the photograph contradicts the said medical certificate and victim Rehana Aktar on her deposition did not claim such disfiguration (¢hL«a h¡ eø). The learned Judge of the Tribunal also did not give any clear finding to the effect that the face of victim Rehana Akhter alias Bina has disfigured (¢hL«a), receiving burn injuries by acid.
4. 45.     In “hÉhq¡¢lL h¡wm¡ A¢id¡e’ published by Bangla Academy the meaning of word “¢hL«a’ has given as follows:

“¢hL«a- Aü¡i¡¢hL l²f, ¢hivp (¢hL«a j§¢aÑ)’

1. 46.     The meaning of word ‘disfigure’ given in ‘Oxford Dictionary’ is as follows:

Disfigure-Spoil the beauty of; deform; deface.

1. 47.     Deform means-put out of shape; make ugly.
2. 48.     Deface means-spoil the appearance of;
3. 49.     If we consider material Exhibit XIII, the photograph of victim Rehana Akhtar and her evidence, it is very difficult for us to hold that her face has become ‘¢hL«a’ as per its true meaning that face has turned in to ‘Aü¡i¡¢hL l¦f’ or ‘¢hivp (¢hL«a j§¢aÑ)’ or the face has defaced or deformed spoiling its appearance of.
4. 50.     Thus, we are of the view that the conviction under Section 4(2)(ka) of the Nari-O-Shishu Nirjatan Ain,2000 will not also be proper, rather the offence as has been proved, would come within the mischief of Section 4(2)(kha) of the Nari-O-Shishu Nirjatan Daman Ain,2001, where punishment provides for causing any other injury /injuries(Md. Sakkhor Zaman, son of Md. Moniruzzaman Ocrl.A.1450 of 2006.doc) on the persons by acid or other corrosive substance .
5. 51.     Having discussed as above we are of the view that convict-Md. Shamsuzzaman alias Bipu has committed offence under Section 4(2)(kha)of the Nari-O-Shishu Nirjatan Daman Ain,2000 instead of 4(1) of the said Ain with the aid of the present appellants and thus we are inclined to convict the present appellants under Section 4(2)(Kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000.
6. 52.     In the result, the appeal is dismissed with the modification of the order of conviction and sentence. The appellants are hereby convicted under Section 4(2)(kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 and sentenced for rigorous imprisonment for 10(ten) years with a fine of Tk. 20,000/-, in default to suffer rigorous imprisonment for 1(one)year more.
7. 53.     The appellants are entitled to get the benefit of Section 35A of the Code of Criminal Procedure.

        Send down the lower Court record at once.

Ed.