Falan Miah and another Vs. The State, 3 LNJ (2014) 375

Case No: Criminal Appeal No. 598 of 2005

Judge: Abdur Rob,

Court: High Court Division,,

Advocate: Mr. Md. Atiqul Hoque,Mr. Salaudddin ,Mr. Mohammadullah,Mr. Sawpan Kumar Das,,

Citation: 3 LNJ (2014) 375

Case Year: 2014

Appellant: Falan Miah and another

Respondent: The State

Subject: Sentencing, Commutation of Sentence, Criminal Trail,

Delivery Date: 2010-08-16

Falan Miah and another Vs. The State
3 LNJ (2014) 375
HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Mashuque Hosain Ahmed, J.
            And
Abdur Rob, J.

Judgment on
10.08.2010 and 16.08.2010
}
}
}
}
Falan Miah and another
. . .Convict-Appellants
Versus
The State
...Respondent.
 
Children Act (XXXIX of 1974)
Sections 5(3), 6 and 8
It is undisputed that the offence alleged to have been committed by the appellants was exclusively triable by the Court of Sessions and steps as per sections 5(3) and 8 of the Act, 1974 were rightly taken by the concerned Magistrate. There has been no objection or allegation as to violation of the provisions of section 6 of the Act which are related to joint trial of child offender with adult accused. . . . (10)

Children Rules, 1976
Rules 2 and 4
Children Act (XXXIX of 1974)
Section 7
Children Rules 1976 (shortly Rules 1976) were made by gazette notification (extraordinary) published on 11th March 1976 under provision of section 77 of the Act, 1974. In rules 3 and 4 no penal provisions have been inserted as to the consequence of non-compliance of the said provisions in the light of above discussion it can be said that when no penal provisions has been provided in section 7 of the Act, 1974 for the consequence of non-compliance of the provisions therein it is  to be treated as directory and not mandatory. Therefore, if there has been any non-compliance of the said provision of law such non compliance has not vitiated the trial. . . . (15)
 
Children Act (XXXIX of 1974)
Section 51(2)
We found on scrutiny that the age of convict appellants Ansarul Haque and Falan Miah were 14 to 15 years and 15 to 16 years respectively on 06.07.2002 when exhibits 4 and 5 (statements under section 164 Cr.P.C) were recorded. Trial Court found that on the date of judgment on 17.01.2004 the age of the appellants were 16 years 8 months, 14 days and 18 years, 8 months  and 14 days respectively. Thus it is apparent that the appellants Ansarul Huq and Falan Miah though were 14 to 15 and 15 to 16 years respectively when they committed the offence but when the impugned judgment was passed they were adult and today (when the appeal is finally disposed of) both the appellants are more than 23 years and 25 years respectively so they are now completely adult to serve out the sentence. Therefore, there was no necessity of direction in the impugned judgment to keep the appellants in separate arrangement and room from the adult offenders as provided on section 51(2) of the Act, 1974. .  . .(57)

Penal Code (XLV of 1860)
Sections 302/34
Children Act (XXXIX of 1974)
Section 51(2)
From the scrutiny of the evidence, circumstances and documents on record our conclusion is that the trial court rightly found the convict appellants guilty of the charges brought against them under section 302/34 of the Penal Code for killing the victim. We thus find no merit in the appeal which must fail, but we find it difficult to maintain the sentence of imprisonment for life as in view of the provision of awarded by the court below, section 51(2) of the Act, 1974. And accordingly, we are inclined to modify the sentence by reducing the same 10 years instead of imprisonment for life and also to impose fine.
In the result, this appeal is dismissed with modification of sentence. Impugned judgment and order of conviction dated 17.1.2005 found by the Additional Sessions Judge, 2nd Court, Mymensingh in sessions case No. 67 of 2002 is maintained but the appellants are sentenced to suffer rigorous imprisonment for 10 (ten) years instead of imprisonment for life as awarded by the learned Additional Sessions Judge and also to pay a fine of taka 2,000.00 each in default to suffer rigorous imprisonment for 2(two) months more. The quantum of the period of sentence which the appellants have already served out shall be deducted as per the provisions of section 35A of the Code. The appellants are directed to surrender before the Court below to serve out remaining period of sentence. . . . (59 and 60)
 
Sukhendra Das Vs. State, 21 DLR 303 ref.

Mr. Salaudddin with
Mr.  ........................
. . .For the appellants

Mr. Mohammadullah, D.A.G with
Mr. Sawpan Kumar Das and
Mr. Atiqul Hoque , A.A.G
....... For the State defence

Criminal Appeal No. 598 of 2005
 
JUDGMENT
Abdur Rob, J:
 
This appeal directed against the judgment and order dated 17.01.2005 passed by the learned Additional  Sessions Judge, Court No. 2, Maymenshing in sessions case No. 67 of 2002 of convicting the appellants under section 302 read with section 34 of The Penal Code sentencing each of them  to suffer rigorous imprisonment for life and to pay a fine of Taka. 2000/= in default, to suffer rigorous imprisonment for 2 months more.

Present criminal appeal springs out of the sentence for imprisonment for life. The two convicts presented a petition of appeal before this court being Criminal Appeal No. 598 of 2005 against the judgment and order of conviction dated the 7th January 2005 passed in Sessions case No. 67 of 2002.

The prosecution case, briefly, is that one Md. Mostafa, the informant lodged the First Information Report, shortly, “FIR” on 30.04.2004 with Gafargaon police station, Mymensingh, alleging, inter alia,  that Runa aged about 10 (ten) years his only daughter was called out by appellant  Ansarul, son of Khaleque Miah on 29.04.2001 at about 6.30 p.m on the pretence of giving green mangoes in presence of her mother, Mst. Hazera Khatun but the victim did not return home.  The informant along with his relatives and friends searched for the victim at different places but in vain. As they could not find the victim they went to the house of Ansar and asked him about her whereabouts.  Ansar replied that after receiving green mangoes the victim went away and he could not say, thereafter, what happened. The informant for searched his daughter till 3.00 a.m of the following night. On 30.4.2001 early in the morning at around 6.00 a.m when his relative Mina Begum, wife of Bachchu went to collect leaves near the place of occurrence  found the dead body of the victim at the dried pond behind Aftabuddin’s house of Jonmoyjoy village and intimated the ghastly matter to the informant. Then the informant along with the local people went to the spot and identified the dead body of his daughter, the victim. They found the mouth and nose of the victim filled with earth as well injuries on the person of the victim; then the informant along with the Ward Commissioner of the Pourashava and other persons went to the house of Ansar and caught him, who told them he handed over the victim to the custody of Falan. After that the people caught Falan from his area who confessed that he took Runa in to the Jungle near the pond and tried to rape her but failed. He afraid that Runa would disclose the matter to others. He then began tussling and beating the victim. He killed Runa by suffocating her. According to the aforesaid confession it is clear that accused Falan and Ansarul with the illegal object of raping the victim called her away on the pretence of giving her mangoes and after failing to rape her they killed the victim and left her body near the pond of Aftab Uddin. That in the FIR Falan Miah was falsely shown as aged about 22 years and Ansarul Hoque as aged about 14 years.

Police took up the investigation of the case, visited the place of occurrence, prepared the inquest report of the victim Runa, Prepared the sketch map and the separate index thereon, sent the dead body to the morgue for post mortem examination, examined the witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure, (the code) then submitted charge sheet against the accused appellants under Section 302/34 of the Penal Code.

Eventually the convict appellants were put on trial before the learned Additional Sessions Judge, Court No. 2, Mymensingh in sessions case No. 67 of 2002. The appellants were charged under section 302/34 of the Penal Code to which they pleaded not guilty and claimed to be tried.

During trial prosecution examined 18 witnesses, on the other hand, the defence examined none. The defence cross examined the prosecution witnesses. The case of the defence as it appears from the trend of cross examination of the prosecution witnesses was that of innocence. The further defence case was that the accused minor they were to the tried by a juvenile  court under the provisions of the Children Act, 1974 (the Act, 1974)  . Upon consideration of the evidence the trial court by the impugned Judgment and order found both the appellants Falan Mia and Ansarul Haque guilty under Section 302/34 of the Penal Code and sentenced them to suffer rigorous imprisonment for life and also to pay a fine of Taka 2,000.00 each, in default, to suffer rigorous imprisonment for 2(two) months more, hence this appeal.

Mr. Salauddin, Learned Advocate for the appellants by referring exhibits 4 & 5 i.e the statements made by the appellants under section 164 of the Code recorded on 04.06.2001 (ext. 4) and 03.05.2001 (ext.5) respectively and also the judgment of the court below tried to impress upon us that on the date of the judgment the age of Falan Mia was 16 years, 8 months 14 days and that of Ansarul Haque was 18 years 8 months 14 days. The learned Advocate further submits that during trial the convict-appellants were minors and as such, the case was triable under the provision of the Children Act, 1974, shortly, the Act, 1974 by a Juvenile Court.  Learned Advocate does not dispute that Additional Sessions Judge, 2nd Court, Mymensing which held the trial of the case was Juvenile Court as per provisions of section 4 of the Act, 1974  but no where within the proceeding of the case the trial court expressed itself as Juvenile Court nor the provisions of section 7 of the Act, 1974 were strictly observed and complied with as to the holding of the trial in a specified manner stated therein and, according to him, due to non compliance of the provisions of section 7 of the Act the trial has been vitiated. Learned Advocate further submits that provisions of section 51 and 71 of the Act, 1974 were not at all complied with and observed by the trial court as the words “conviction” and “sentenced” used in the impugned judgment contrary to the provisions of section 71 of the Act, 1974 and the minor accused were sentenced to suffer imprisonment for life which is prohibited under Section 51 of the Act, 1974. He has referred to the provision of section 52 of the Act, 1974  and has contended that trial court did not properly consider the provision of the said section according to which maximum period for detention of the child has been fixed to be not more than 10 years but in any case such period can not exceed the age of eighteen years of the child offender. The gist of the argument of appellants’ learned Advocate is that due to violation and non compliance of the Specific provisions of the Act, 1974, the trial of the case has been vitiated and such, the impugned judgment and order of conviction and sentence is liable to be set aside and the appeal be allowed. In support of his contentions the learned Advocate has retained in upon the case of The State -vs- Deputy Commissioner, Satkhira reported in 45 DLR 643.

Mr. Mohammad Ullah learned Deputy Attorney General appearing for the state on the other hand  by referring Sections 3-8, 51-52 and 71 of the Act, 1974 submits that if the child is charged with the commission of an  offence exclusively triable by the court of Sessions then the case records is to be sent there for such trial. He further submits that if the child is charged of the offence under Section 302 of the Penal Code and if the charge is proved then there will be no scope for the court to award sentence less than what has been fixed in the section. By referring to 1st proviso to Section 51 of the Act 1974, the learned Deputy Attorney General further submits that if the child is found to have committed an offence of serious in nature and the court is of the opinion that punishment which it is authorized to inflict is insufficient then the court may sentence the child to imprisonment or order him to be detained in such place and on such contentions as it thinks fit. and no quantum (period) of “imprisonment” has been provided for in the said proviso. The learned Deputy Attorney General further submits that the prosecution witness having proved the prosecution case against the appellants beyond all reasonable doubt and the nature of the offence being serious in nature the learned Additional Sessions Judge rightly passed the impugned judgment and order of conviction and sentence and as such no interfere is called for with the same and the appeal be dismissed.

In view of the above contentions of the learned Advocate for the appellants and the learned Deputy Attorney General for the State we consider it profitable  to consider the provisions of sections 3-9, 51-52 and 71 of the Act, 1974 which are as follows;

“3. Notwithstanding anything contained in the Code, the Government may, by notification in the official Gazette, establish one or more Juvenile Courts for any local area.
4. The powers conferred on a Juvenile Court by this Act shall also be exercisable by –
(a) The High Court Division,
(b) a Court of Session ,
(c) a Court of an Additional Sessions  Judge and of an Assistant Sessions Judge.
(d) a Sub-Divisional Magistrate, and
(e) a Magistrate of the First Class,
Whether trying any case originally or on appeal or in revision.

        5(1) When a Juvenile Court has been established for any local area, such Court shall try all cases in which a child is charged with the commission of an offence and shall deal with and dispose of all other proceedings under this Act, but shall not have power to try any case in which an adult is charged with any offence mentioned in part VI of this Act.
       (2) When a Juvenile Court has not been established for any local area, no court other than a Court empowered under section 4 shall have power to try any case in which a child is charged with the commission of an offence or to deal with or dispose of any other proceeding under this Act.
       (3)  When it appears to a Juvenile Court or a Court empowered under section 4, such Court being subordinate to the Court of Session, that the offence with which a child is discharged is triable exclusively by the Court of Session, it shall immediately transfer the case to the Court of Session for trial in accordance with the procedure laid down in this Act.

       6(1) Notwithstanding anything contained in section 239 of the Code or any other law for the time being in force, no child shall be charged with, or tried for, any offence together with an adult.
       (2)  If a child is accused of an offence for which under section 239 of the Code or any other law for the time being in force such child but for the provisions of sub-section (1) could have been tried together with an adult, the Court taking cognizance of the offence shall direct separate trials of the child and the adult.

       7(1) A Juvenile Court shall hold its sittings at such places, on such days and in such manner as may be prescribed.
       (2) In the trial of a case in which a child is charged with an offence a Court shall, as far as may be practicable, sit in a building or room different from that in which the ordinary sittings of the Court are held, or on different days or at different times from those at which the ordinary sittings of the Court are held.

       8 (1) When a child is accused along with an adult of having committed an offence and it appears to the Court taking cognizance of the offence that the case is a fit one for committal to the Court of Session, such Court shall, after separating the case in respect of the child from that in respect of the adult, direct that the adult alone be committed to the Court of Session for trial.
       (2) The case in respect of the child shall then be transferred to a Juvenile Court if there is one or to a Court empowered under section 4, if there is no Juvenile Court for the local area, and the Court taking cognizance of the offence is not so empowered:
Provided that the case in respect of the child shall be transferred to the Court of Session under section 5(3) if it is exclusively triable by the Court of Session in accordance with the second schedule of the Code.

       9.  Save as provided in this Act, no person shall be present at any sitting of a Juvenile Court except;
(a) the members and officers of the Court;
(b) the parties to the case or proceeding before the court and other persons directly concerned in the case or proceeding including the police officers;
(c) parents or guardians of the child; and
(d) such other persons as the court specially authorise to be present.

       51(1) Notwithstanding anything to the contrary contained in any law, no child shall be sentenced to death, transport-ation or imprisonment:
       Provided that when a child is found to have committed an offence of so serious a nature  that the Court is of opinion that no punishment, which under the provisions of this Act it is authorized to inflict, is sufficient or when the Court is satisfied that the child is of so unruly or of so depraved character that he cannot be committed to a certified institute and that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the child to imprisonment or order him to be detained in such place and on such conditions as it thinks fit:
       Provided further that no period of detention so ordered shall exceed the maximum period of punishment to which the child could have been sentenced for the offence committed:
       Provided further that at any time during the period of such detention the Court may, if it thinks fit, direct that in lieu of such detention the youthful offender be kept in a certified institute until he has attained the age of eighteen years.
       (2) A youthful offender sentenced to imprisonment shall not be allowed to associate with adult prisoners.

       52. Where a child is convicted of an offence punishable with death, transportation or imprisonment, the Court may, if it considers expedient so to deal with the child, order him to be committed to a certified institute for detention for a period which shall be not less than two and not more than ten years, but not in any case extending beyond the time when the child will attain the age of eighteen years.
 
From section 4(c) of the Act, 1974 it appears that Court of Additional Sessions Judge has been empowered under section 4 to exercise the powers of Juvenile Court under the Act.  The case was tried by the Additional Sessions Judge, 2nd Court, Mymensingh to which it was sent by the Court of Sessions, Mymensingh after due registration of the case as Sessions case on receipt of the case record from the Magistrate provisions of section pursuant to the 5(3) and 8 of the Act, 1974. From the record it appears that charge-sheet was submitted after investigation by the police under section 302/34 of the Penal Code against the appellants, namely, Ansarul Haque and Falan Mia both of whom were stated to be minors at the time of occurrence. Such fact of minority of the appellants was clearly been mentioned in exhibits 4, 5, i.e the  statements made by them under section 164 of the Code. The statements were recorded by PW 10 Mr. Main Uddin Ahmed, Magistrate, 1st class, Mymensingh. So, it is undisputed that the offence alleged to have been committed by the appellants was exclusively triable by the Court of Sessions and steps as per sections 5(3) and 8 of the Act, 1974 were rightly taken by the concerned Magistrate. There has been no objection or allegation as to violation of the provisions of section 6 of the Act which are related to joint trial of child offender with adult accused.

What has been agitated by the learned Advocate for the convict-appellants before us is that neither the Sessions Judge, Mymensingh registered the case as a Juvenile court case nor the Additional Sessions Judge, 2nd Court, Mymensingh while holding trial of the case assumed his jurisdiction as a Juvenile court and proceeded with the trial of the case accordingly strictly following or observing the provisions of section 7 of the Act, 1974 and this non-observance of the provision of section 7 of the Act, 1974 has vitiated the trial.

When section 4 of the Act, 1974 clearly empowers the Sessions Judge and the Additional Sessions Judge to exercise the powers of Juvenile Court in the case involving child offenders for offence exclusively triable by Court of Sessions registration of the case after receipt of case record as Sessions case and not as a Juvenile Court case itself shall not expose to any gross irregularity Similarly, while  holding trial of such a case received on transfer from the Sessions Judge if the Additional Sessions Judge  does not note or mention in the record  that he was proceeding in the case as a Juvenile Court case also shall not render a trial illegal and the ultimate decision thereon unless it is shown specifically that there has been miscarriage of justice or failure of justice causing serious prejudice to the convict appellants became of such failure. In the instant case the convict appellants failed to show any such specific prejudice caused to them for above irregularity.

In section 7(1) of the Act, 1974 it has been provided that the Court shall hold its sitting at such place or places on such days and in such manner as may be prescribed. In section 7(2) of the Act, 1974 it has been provided that the Court shall as far as may be practicable sit in a building or room different from that in which the ordinary sittings of the Court are held or on different days ordinary settings of the court are held.

On scrutiny no penal provisions as to the consequence of any non-compliance of the said provisions has been provided for in the Act, 1974.

Children Rules 1976 (shortly Rules 1976) were made by gazette notification (extraordinary) published on 11th March 1976 under provision of section 77 of the Act, 1974. In rules 3 and 4 no penal provisions have been inserted as to the consequence of non-compliance of the said provisions in the light of above discussion it can be said that when no penal provisions has been provided in section 7 of the Act, 1974 for the consequence of non-compliance of the provisions therein it is  to be treated as directory and not mandatory. Therefore, if there has been any non-compliance of the said provision of law such non compliance has not vitiated the trial.

Moreover, except the verbal submission the learned for the appellants could not show anything specific in support of the point that the provisions of section 7 of the Act, 1974 were not complied with properly by the Additional Sessions Judge, while holding trial of the case. In the absence of any thing specific it may be presumed that said court acted properly in holding the trial in compliance with the provisions of section 7 of the Act. Therefore, we find no merit in the point as argued by the learned Advocate for the appellants as to the prejudice for non compliance with the provisions of section 7 of the Act, 1974.

It is true that under provisions of section 51 of the Act, 1974 no child shall be sentenced to death or imprisonment for life but in the 1st proviso to said section 51 it has been provided that, “when a child is found to have committed an offence of so serious in nature that the court is of opinion that no punishment which under provisions of this act is authorised to inflict, is sufficient “then the court may sentence the child to imprisonment or order him to be detained in such place and on such conditions as it thinks fit.” So it appears that the prohib-ition or restriction about awarding sentence  on a child offender as put  in section 51 has been  slightly relaxed in the 1st proviso to the effect that if the nature of offence committed by the child “is so serious in nature”(emphasis is given by us) the court may sentence the child to imprisonment. But the minimum quantum of the sentence of said “imprisonment” has not been fixed or ascertained any where within the Act, 1974.

We have already noticed earlier that as per provisions of sections 5(3) and 8 of the Act, 1974 if the offence committed by the child is exclusively triable by a Court of Sessions the case record has to be sent to him for trial and disposal. We have also noticed that charge-sheet was submitted against the appellants under sections 302/34 of the Penal Code and the case record was duly sent to the Court of Sessions wherefrom the same was sent to the Additional Sessions Judge, 2nd Court, Mymensingh who accordingly held and disposed of the case by the impugned judgment and order. Punishment as provided under section 302 of the Penal Code is death or imprisonment for life. If someone is found guilty on trial by the court below under Section 302/34 Penal Code by the Court on trial sentence or punishment cannot be less than either death or imprisonment for life. Both the appellants were found guilty under sections 302/34 Penal Code and both of them were awarded sentence to suffer imprisonment for life along with a fine of Taka 2,000.00 in default, to suffer rigorous impriso-nment for two months more.

In section 51 of the Act, 1974 there is total prohibition as to the awarding of sentence of death on any child offender. But under 1st proviso to said section the Court has been authorized to award sentence of “imprisonment “on the child if the offence committed by him is of serious in nature. According to the learned Deputy Attorney General when the maximum quantum (period) of said “imprisonment” as it appears in 1st proviso of section 51 has not been fixed or available in the said Act itself and when the punishment for offence under section 302 of the Penal Code cannot be less than either death or imprisonment for life and when with regard to child sentence of death is prohibited under section 51 of the Act, then sentence for the offence under section 302 Penal Code  must be “imprisonment for life” in case the child offender if found guilty on trial.

It is true that maximum period of “imprisonment” stated in 1st proviso to section 51 of the Act, 1974 has not been available any where within the Act, 1974 itself. When sentence for offence under section 302 of the Penal Code has no scope to be less than imprisonment for life, such sentence can be conveniently awarded if the child offender is found guilty under section 302 Penal Code after trial. Maximum period of 10 years appearing in section 52 of the Act, 1974 is only related to the order of detention of the child in certified institute, such period for 10 years cannot be said to be the maximum period of “imprisonment” as a sentence as provided in the 1st proviso to section 51 of the Act 1974 with regard to punishment to be awarded to a child if he is found guilty of offence of so serious nature, as has been found in the instant case.

Let us now consider the merit of the case itself.

P.W. 1 Md. Mostafa, the informant as P. W.1 supported allegations made in the FIR. He proved his signature therein as exhibits 1 and 1/1. P.W.1 in his examination-in-chief categorically stated that on 29.04.2001 at about 6.30 p.m. that is on the date of occurrence he was at his business place at Gafargaon Bazar and at about 8/8.30 p.m. he came back to his residence when his wife informed him that at about 6-30 p.m. Ansarul Haque called away his 10 years old daughter the victim Runa on the pretence of giving her green mangoes in her presence but Runa had not returned.  The informant along with the relatives and friends searched for at in different places till 3.00/3.30 a.m. but failed to find her. P.W.1 further deposed that on the next day in the morning his relative who went to collect tree leaves found the dead body of the victim near the dried pond of one Aftabuddin of village Jonmoyjoy. The mouth and nose of the victim were filled with earth and there were injuries on her person. P.W.1 along with local people went to the house of Ansarul Haque and caught hold of him and on interrogation Ansarul Haque confessed that he called away the victim Runa on the pretence of giving her green mangoes and handed her over to accused Falan Mia. Then the people of the area caught hold of accused Falan and on interrogation Falan confessed that he had taken Runa to the jungle near the pond with the intention of raping her but when he failed, he (Falan) killed her by strangulation. Accused Ansarul Haque and Falan Mia in a pre planned way of raping her took away the victim on the pretence of giving green mangoes but when they failed then killed her. The Officer-in-charge came to the spot and recovered the dead body. After post mortem report the police handed over the dead body and they buried her. 

In cross examination this witness stated that accused Falan was a rickshaw puller, but nothing contradictory was brought out in cross examine to make his statement in examination in chief unworthy of belief.

P.W. 2, Hajera Khatun, wife of the informant in her examination-in- chief stated that victim was aged about 10 years and she was a student of class IV. On 29.4.2001 at about 6.00 p.m. accused Ansarul Haque called away Runa, who did not came back. At about 8.00 p.m. at night her husband came home and she informed him about the matter. At night they searched for the victim Runa but failed to find her. She also deposed that later on they went to accused Ansarul’s house and on interrogation, he stated that he gave green mangoes to Runa and she went away. Thereafter in the morning they found the dead body of the victim. After that the people caught accused Ansarul who on being interrogated confessed that accused Falan had killed Runa. After that Falan was caught by the local people and both the accused Ansarul and Falan were taken to the police station. She identified both the accused in the dock.

In her cross-examination this P.W. stated that there was no mango tree on the bank of the pond. She also stated that in the evening accused Ansarul called away the victim Runa. She did not know if the  accused supported Arif Commissioner in his election or not. She further denied that her daughter died while she went to collect the mangoes.

P. W. 3, Raton Mia, in his examination-in-chief stated that he is a gold smith and while he came back to his house, he learnt that victim was not tracable. The parents and brother of the victim searched for her but they did not find her. On the following morning his cousin’s wife Mina Akter went to collect tree leaves and discovered the dead body of the victim near Aftabuddin’s pond.  Upon hue and cry they rushed to the spot. He further deposed that his nephew Sujan told him that yesterday in the evening accused Ansarul sold a gold nose pin at Makhan’s shop. After that he along with other people of the area caught accused Ansarul who upon interrogation confessed the same. Accused Ansarul Haque also confessed that he and Falan Miah killed Runa. This witness identified the accused in the dock.

In his cross-examination this P.W. stated that accused Falan is a rickshaw puller, he further stated that on the date of occurrance he came back from Mymensingh town at about 6.00 p.m. It was a stormy day. The informant Mostafa, Makhon, Sujan all are goldsmiths. In the morning about 6.00/6.30 a.m. Ansarul was caught from his house by the people. He denied the deefnce suggestion that Ansarul was tortured after being caught and he did not confess to them about killing the victim.

P.W. 4, Sujat Ali @ Suruj Mia father of the informant in his examination-in-chief stated that on 29.04.2001 the victim Runa was killed. He was at Gafargaon Bazar, returned home at about 10.00 p.m. his daughter in law told him that accused Ansarul called away Runa and they did not find out her. Day after in the morning wife of his nephew while went to collect the leaves of trees found the dead body of victim Runa and she started hue and cry.  He along with others rushed there and saw the dead body. The local people caught hold of accused Ansarul who at first said that after giving mangoes he set her free. After that accused Falan was caught by the people Falan and Ansarul confessed that they had killed the victim Runa. He identified the accused in the dock.

In his cross examination he stated that the name of their M.P is Altaf Hossain Golondaz. He denied that both the accused were tortured severely. After bringing both the accused to the police station the officer-in-charge came to the spot and ejahar was written in his house. He made statement to the officer-in-charge. He also denied that he gave false statement to the officer-in-charge.

P.W. 5, Makhan Chandra Podder in his examination-in-chief stated that he has a gold shop in Gafargaon Bazar. On 29.04.2001 at about 7.00/7.30 p.m. Ansarul along with  Sujan offered a noseful for sale. He bought the said nose pin worth Taka 32.00. Later on in the morning Raton came to him and requested him not to sell the said nose pin. After that Raton along with Makhan went to police station and gave the said nose pin to the officer-in-charge. The officer-in-charge seized the same and took his signature in the seizure list, he identified the noseful; the said noseful exhibited as Ext. 2. Signature Ext. 2/1,

In his cross examination he stated that seizure list prepared on 30.04.2001. He denied that he made seizure list by the noseful with the help of Mostafa and Sujan and then put his signature.

P.W. 6, Sushil Chandra Podder in his examination-in-chief stated that he has a gold-silver shop in the Gafargaon Bazar. Makhan is a goldsmith. On calling by the officer in charge he went to police station. The officer in charge has taken noseful from Makhan, prepared seizure list where he put his signature.

In his cross examination he stated that he along with Shahab uddin went to police station. On calling by the officer in charge he and Shahab Uddin went to police station and they put their signatures.

P. W.7, Shahabuddin stated in his examination-in-chief that he is a trader and he has a shop in the Gafargaon Bazar. He is a seizure list witness and he put his signature.

In his cross examination he stated that he found Shushil Babu at police station.

P. W.8, Sujan Mia in his examination in chief stated that informant Mostafa is his uncle. He identified the accuseds in the dock. On 29.04.2001 at about 7.00/7.30 p.m. while he went out from his shop, he found Ansarul at Nalua Bazar under Gafargaon, who offered a nose pin for sale and on query he told that he got it from his sister in law. He said that his shop has been closed. After that the said nose pin was sold to Makhan for Taka 32.00 only. He went to his house and after taking meal went to sleep. Later on in the morning hearing hue and cry he went to the spot and saw the dead body of victim Runa. He also heard that Ansarul called away victim Runa on pretence of giving green mangoes and she did not came back. On the basis of confession of accused Ansarul the nose pin was collected from Makhon. The same was Runa’s nose pin. Ansarul confessed in presence of all that he along with Falan killed Runa.

In his cross-examination he stated that accused confessed that it was Runa’s nose pin which worth Taka 60.00. He also denied that there was enmity between Commissioner and the guardian of the accused. He also stated in cross-examination about 200 people had taken Ansarul at about 8.00/8.30 a.m. and Falan was taken at about 12.00 at noon at bazar. On suggestion he clearly told that the accused were not tortured. He denied that Runa went to collect mango and she died. He denied that he had given false evidence.

P.W .9, Md. Khalilur Rahman in his examination –in-chief stated that he knows the occurrence and identified the accuseds in the dock. On 30.4.2001 victim Runa’s dead body was found near Aftabuddin’s dried pond and he saw the dead body. The officer in charge seized one piece of brick, a pair of Sandals belonging to Runa which was seized as alamat and exhibited as material exhibits II, III where this witness put his signature (ext. 3/1).

In his cross examination he stated that seizure list was prepared on the spot. He deposed that the piece of brick and Sandals were found beside of dead body of victim Runa.

P. W. 10, Mainuddin Ahmed in his examination in chief stated that on 03.05.2001 he recorded the statements of accused Ansarul Haque and Falan Mia under section 164 of the Code dure which were exhibited as Exhibits 4 and 5 respectively.

P. W. 11, Feroza Begum in her examination-in-chief stated that on the date of occurrence on 29.04.2001 at about 6.30 p.m. accused Ansarul Haque called victim Runa on pretence of giving green mango and she did not come back. Later on in the morning dead body of victim Runa was found. He identified the accused in the dock.

In her cross examination she denied that Runa went to collect the mangoes and fell in the pond and died.
P.W. 12, Arifuil Islam in his examination in chief stated that he is a trader and Ward Commissioner of Gafargaon Pourashava. Date of occurrence on 29.04.2001, they were at the bazar. At night the informant informed him that his daughter could not be found. Later on in the following morning they found the dead body of victim Runa, lying in a dried pond. The police made inquest report of the dead body. Inquest report exhibited as Ext. 6 where he put his signature.

In his cross examination he stated that it might be that the ejahar lodged on 30.04.2001 at about 11.00 a.m. inquest report prepared at about 11.00/11.30 at noon. He passed B.A. He wrote the ejahar in Bengali. He also deposed that the mouth and nose of the victim Runa were filled up by soil. He deposed that he did not know whether the guardian of the accused supported the candidate Bachu for the post of commissioner. He won in the election. He denied that to take revenge he wrote the ejahar implicating the accused in the case.

P. W. 13, Md. Jamir Uddin in his examination in chief stated that on 29.04.2001 at night the informant informed him that Runa did not find. Day after in the morning they found the dead body of the victim Runa in a dried pond of Aftabauddin.  Many people came to see the dead body. He heard that Ansarul had taken Runa. The officer in charge prepared inquest report of the dead body where he put his signature his signature exhibit 6/2.

In his cross examination he stated that date of occurrance was a rainy day. He also deposed that the person present in the place of occurrance told that the accused Ansarul had taken the victim Runa.

P.W. 14, Dr. S. N. Ayesha Siddiqua in her examination in chief stated that on 30.04.2001 she prepared a post mortem report of the dead body of a 10 year old Runa, daughter of Mostafa, which was referred from Gafargaon police station. Jalal uddin Constable No. 1155 identified the dead body. On 30.04.2001 at about 4.30 p.m. at morgue she examined the dead body. He asserted that the death was due to Asphyxia resulting from suffocation which was ante mortem and homicidal in nature.  Post mortem report is exhibit 7 and her signature exhibit 7/1.

P. W. 15, Md. Omar Faruq  in his examination-in-chief stated that on 27.0.2001 he was attached to Gafargaon police station as S.I. The investigating officer S. I. Mahbubur Rahman was transferred to another police station and the case record was endorsed to him for investigation. While he received the case docket on 28.7.2001 found that previous investigating officer completed the investig-ation and submitted copy of memorandum of the evidence to the higher authority. On 15.08.2001 he transferred to another police station and docket of the case was handed over to the concerned officer in charge.

P.W. 16, Md. Abdul Barik, U.N.O  in his examination in chief stated that on 04.06.2001 while he had been performing as First Class Magistrate at Moymensingh recorded the statement of witness Makhan Podder under Section 164 of the Code of Criminal Procedure where he put his signature, the said statement has been exhibited as exhibit 8.

P. W. 17, Mahbub Alam, S. I in his examination in chief stated that on 30.4.2001 as Sub Inspector of police of Gafargaon Police Station at around 10.00 A.M recorded a written ejahar lodged by the informant Mostafa as Gafargaon Police Station Case No. 28(4)2001 and filled up the FIR form which is exhibited as exhibit 7. He took up the case for investig-ation, prepared inquest report of the dead body of Runa, sent the dead body to the Mymensingh Hospital for post mortem examination, prepared sketch map with separate index, seized the alamat, recorded the statement of the witness, sent the accused Falan Mia and Ansarul Haque to the Magistrate for recording their statements under section 164 of the Code. On investig-ation prima facie case was made out against the accused under section 302/34 of the Penal Code. He proved the inquest report and identified the signature thereon as Ext. 6 and 6/3. He proved the sketch map and index Ext. 10 and 11. He identified the signatures thereon as Ext. 10/1, and 11/1. He identified his signatures of seizure list as Ext. 3/2, 2/4 respectively. In his cross examination stated that he received the FIR along with the accuseds at around 10.00 a.m. Md. Ariful  Islam, Jomir uddin, Kanchon Mia, Jalal uddin, Shamsur Nahar, Chand Mia and the informant brought the accused to the police station. He denied that the accused have been brought from the house of M. P. Altaf Hossain Golandaz. He stated that he received the FIR and thereafter at around 11.15 a.m. went to place of occurrence. He denied that at the time of receiving the accused, they were minors. He denied that there were conflict between the guardians of the accused with local ward community and for which created the instant case.  He denied that the victim Runa went to bring Mango (Avg KzovB‡Z) and fell into storm and died. He denied that he did not investigate the case properly.
 
P.W. 18, Mansur Habib in his examination-in-chief stated that on 17.11.2001 he was attached to the Gafargaon police station as Sub-Inspector. Firstly Sub-Inspector Mahbubur Rahman then Sub-Inspector Omar Faruk inves-tigated the instant case and after completion of investigation submitted memorandum of evidence. On 18.08.2001 he received the case and after getting approval on 17.11.2001 he submitted Charge Sheet No. 199 dated 19.11.2001 against the convict-appellants under section 302/34 of the Penal Code and he was cross examined by the defence, but nothing contradictory was found from his evidence.
These are the evidence produced by the prosecution.

The purpose of the examination of the accused under section 342 of the Code of Criminal Procedure (the code) of an accured is to facilitate him to explain any fact which came in evidence against him. Even without any pointing out of any incriminating materials or facts during examination under section 342 of the Code.

On perusal of exhibits 4 and 5 the two confessional statements of the two appellants it appears that no allegation was made to P.W. 10 about police beating, torture or threat when he recorded their statements under section 164 of the Code. From exhibits 4 and 5 it appears that P.W. 10 gave to the effect that endorsment statements made by the accused were true and voluntary. It also appears that exhibits 4 and 5 were recorded on 03.05.2001. The accused were examined under section 342 of the Code on 04.07.2004. There is nothing in the record to show that at any time after 03.05.2001 the accused ever filed any application to retract from their confessional statements made by them under section 164 of the Code on the very pretext and ground of police torture or threat. In the absence of any such move by the appellants, it is proved that the plea of police torture and threat disclosed in the statements during their examination under section 342 of the Code after thought. On minute scrutiny and perusal of exhibits 4 and 5 we find the same to be inculpatory, voluntary and true in nature. If the confessional statements of the appellants be found from scrutiny to be inculpatory, voluntary and true in nature, then this alone can be the basis of conviction.

In such regard reference may be made to the case of Sukhendra Das  -vs- State reported in 21 DLR 303 wherein it was held that confessional statement if found to be voluntary and true can alone be basis of conviction in a case. As against the maker himself his confession judicial or extra judicial retracted or not can in law validly form the basis of his conviction if the court is satisfied and believed that it is true and voluntary. In the present case besides the confessional statements of the appellants there are also other corroborative evidence, both oral and as well as circum-stantial as discussed above in details.

Trial court on proper analysis of the evidence on record and all attending circumstances came to correct finding and decision as to the guilt of the appellants.

We also noticed earlier that there is provision for imprisonment for child offender the 1st proviso to section 51 of the Act, 1974. According to the arguments advanced by the learned Deputy Attorney General, impris-onment for life can be maintained if the child offenders are charged under section 302 or 302/34 of the Penal Code but since we observed earlier that maximum period of 10 years detention as appears in section 52 of the Children Act, 1974 exclusively related to detention of child offender in certified institute only and as such above maximum period of 10 years cannot be imposed as the sentence for life of any child liable for offence under section 302 of the Penal Code is prescribed. It further  appears from the record that it was sent to the trial court pursuant the provisions of section 5(3) and section 8 of the Act, 1974. We found on scrutiny that the age of convict appellants Ansarul Haque and Falan Miah were 14 to 15 years and 15 to 16 years respectively on 06.07.2002 when exhibits 4 and 5 (statements under section 164 Cr.P.C) were recorded. Trial Court found that on the date of judgment on 17.01.2004 the age of he appellants were 16 years 8 months, 14 days and 18 years, 8 months  and 14 days respectively. Thus it is apparent that the appellants Ansarul Huq and Falan Miah though were 14 to 15 and 15 to 16 years respectively when they committed the offence but when the impugned judgment was passed they were adult and today (when the appeal is finally disposed of) both the appellants are more than 23 years and 25 years respectively so they are now completely adult to serve out the sentence. Therefore, there was no necessity of direction in the impugned judgment to keep the appellants in separate arrangement and room from the adult offenders as provided on section 51(2) of the Act, 1974.

Section 51(2) runs as follows;

“Sentence for imprisonment shall not be allowed to associate with adult prisoner”.

From the above scrutiny of the evidence, circumstances and documents on record our conclusion is that the trial court rightly found the convict appellants guilty of the charges brought against them under section 302/34 of the Penal Code for killing the victim. We thus find no merit in the appeal which must fail, but we find it difficult to maintain the sentence of imprisonment for life as in view of the provision of awarded by the court below, section 51(2) of the Act, 1974. And accordingly, we are inclined to modify the sentence by reducing the same 10 years instead of imprisonment for life and also to impose fine.

In the result, this appeal is dismissed with modification of sentence. Impugned judgment and order of conviction dated 17.1.2005 found by the Additional Sessions Judge, 2nd Court, Mymensingh in sessions case No. 67 of 2002 is maintained but the appellants are sentenced to suffer rigorous imprisonment for 10 (ten) years instead of imprisonment for life as awarded by the learned Additional Sessions Judge and also to pay a fine of taka 2,000.00 each in default to suffer rigorous imprisonment for 2(two) months more. The quantum of the period of sentence which the appellants have already served out shall be deducted as per the provisions of section 35A of the Code. The appellants are directed to surrender before the Court below to serve out remaining period of sentence.

Lower court records be sent down at once.

Communicate this order at once

Ed.