Lechu Meah @ Kamal Ahmed Vs. The State, 2 LNJ (2013) 243

Case No: Criminal Appeal No. 4263 of 2007

Judge: Moyeenul Islam Chowdhury,

Court: High Court Division,,

Citation: 2 LNJ (2013) 243

Case Year: 2013

Appellant: Lechu Meah @ Kamal Ahmed

Respondent: The State

Subject: Examination of Witness,

Delivery Date: 2013-01-21

HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Moyeenul Islam Chowdhury, J.
And
Kazi Md. Ejarul Haque Akondo, J.

Judgment
21.01.2013, 22.01.2013 & 23.01.2013
  Lechu Meah alias Kamal Ahmed ….Appellant
-Versus-
The State ….Respondent.
-And-
Ustar Ali…Appellant
-Versus-
The State….Respondent.
-And-
Shamshad Ali and others
…Appellants
-Versus-
The State….Respondent.
-And-
Mujib Ali and others
…Appellants
-Versus-
The State….Respondent.
-And-
Sohrab Miah…Appellant
-Versus-
The State….Respondent.
-And-
Amir Ali-Versus-
The State….Respondent
-And-
Abul Hossain…Appellant
-Versus-
The State….Respondent.
-And-
Mujib Ali …Appellant
-Versus-
The State … Respondent.
-And-
The State …..Petitioner
-Versus-
Mujib Ali and another …..Condemned-prisoners
 

Evidence Act (I of 1872)
Section 32
Admittedly, the P. W. 1 Md. Fatik Miah Chowdhury was partly examined-in-chief and during the pendency of the case in the lower Court, he died and because of his death, his further examination-in-chief and cross-examination could not be completed. That the probative value of the statements made by the P. W. 1 Md. Fatik Miah Chowdhury in his part examination-in-chief may be small depending upon the facts and circumstances of the present case....(142)
 
Evidence Act (I of 1872)
Section 154
If the evidence of the P. W. 13 Md. Rajab Ali fits in with the attending circumstances of the case, then it may be taken into account and accepted along with other evidence on record. In other words, simply because the P. W. 13 Md. Rajab Ali is a hostile witness, his evidence can not be rejected out of hand.....(144)
 
Evidence Act (I of 1872)
Sections 8 and 145
It is well-settled that enmity cuts both ways, that is to say, because of previous enmity, the accused might have committed the offence on the one hand and again because of previous enmity, the accused might have been falsely implicated in the case on the other hand. In fact, enmity is like a double-edged sword. This being the scenario, only a critical appreciation of the evidence of the P. W. 2 Md. Masud Miah Chowdhury will reveal the stark reality. On a critical analysis of his ocular evidence, we do not find any vital omission, inconsistency or contradiction on any material aspect concerning the occurrence between his examination-in-chief and cross-examination. In such a landscape, we must say that his rock-like evidence puts the prosecution case on a definite foundation and to discredit or to dislodge him, the reasonable doubt that must be created in our mind must be based on the evidence on record itself and not on mere inferences, surmises, speculations and conjectures....(154-155)
 
Evidence Act (I of 1872)
Sections 3 and 137
We have put the direct evidence of the P.W. 2 Md. Masud Miah Chowdhury to the closest scrutiny as is required by law and found the same quite trustworthy, unblemished, unimpeachable, impeccable and invincible. In his expansive and detailed evidence, the substantive part touching upon the factum of occurrence and its manner, method and sequence have not been shaken, deviated from or rendered doubtful in his cross-examination. The defence has failed to make any headway in this respect....(158)
 
Evidence Act (I of 1872)
Section 8
Admittedly, the accused Lechu Meah was all along an absconder during the trial of the case. He had been on the run for about four years till his surrender before the Court below on 03.05.2007 after pronouncement of the impugned judgment. This long abscondence of the accused Lechu Meah without any explanation whatsoever is a relevant fact under Section 8 of the Evidence Act and favours the prosecution pointing a finger at his guilt, though abscondence by itself is not conclusive of one’s guilt....(162)
 
Code of Criminal Procedure (V of 1898)
Sections 161 and 537
In the present case before us, investigation was started on the basis of the G. D. Entry No. 297 dated 09.08.2003 and that G.D. Entry is the ejahar of the case for all practical purposes and the subsequent so-called formal ejahar lodged by the P. W. 1 Md. Fatik Miah Chowdhury with Biswanath Police Station may be construed as a statement under Section 161 of the Code of Criminal Procedure. However, the non-treating of the G.D. Entry No. 297 dated 09.08.2003 as the ejahar of the case by the lower Court is curable by Section 537 of the Code of Criminal Procedure and will not affect the merit of the case....(166)
 
Evidence Act (I of 1872)
Section 8
There is no onus on the prosecution to lead positive evidence of motive in a given case and a charge established by reliable evidence will not fail if there be no ostensible motive on the part of the accused to commit the crime. This being the legal position, the contention of Mr. S. M. Shahjahan stands jettisoned....(171)
 
Penal Code (XLV of 1860)
Section 302/34
It is abundantly clear from the conduct of the accused Ustar and Sohrab that by their active armed presence, they shared the common intention of the accused Mujib and Lechu which was formed at the spot on the spur of the moment when those accused did not find their target at the place of occurrence room, that is to say, P. W. 1 Md. Fatik Miah Chowdhury. Originally all the twelve accused were animated by common intention to kill the P. W. 1 and in furtherance of that common intention, they went to the place of occurrence. As they missed their target (Fatik Miah Chowdhury), the four accused, namely, Mujib, Sohrab, Ustar and Lechu developed their common intention to kill Lovely and Aklima, two innocent persons and in furtherance of their common intention, they (Lovely and Aklima) were done to death in a cruel manner.....(203)
 
Penal Code (XLV of 1860)
Section 302/34
Precisely speaking, the accused Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali can not be connected with the killing of Lovely and Aklima in furtherance of common intention as contemplated by Section 34 of the Penal Code. Had all the twelve accused succeeded in killing the P. W. 1 Md. Fatik Miah Chowdhury as planned, then those accused would have incurred the criminal liability under Sections 302/34 of the Penal Code. As the accused Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali did not share the common intention of the accused Mujib, Sohrab, Ustar and Lechu, they can not be fastened with the criminal liability under Sections 302/34 of the Penal Code. That being so, the accused Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali are liable to be acquitted of the charge levelled against them.    ...(204)
 
Penal Code (XLV of 1860)
Section 300, Clause Firstly
The manner of the occurrence as deposed to by the star prosecution witness (P. W. 2) Md. Masud Miah Chowdhury together with the evidence of the P. W. 4 Manjur Miah Chowdhury and P. W. 5 Kulsuma Begum and the medical evidence adduced by the P. W. 20 Dr. M. A. Shahid go to show that the criminal act was done with the intention of causing the death of Lovely and Aklima thus attracting the ingredients of Clause ‘Firstly’ of Section 300 of the Penal Code. This being the state of affairs, the criminal act commit-ted by the accused Mujib, Sohrab, Ustar and Lechu is culpable homicide amounting to murder....(212)
 
Penal Code (XLV of 1860)
Section 302/34
In a case under Sections 302/34 of the Penal Code when an accused is sentenced to death, he is not awarded any sentence of fine. In the instant case, the death sentence awardees have been sentenced to pay a fine of Tk. 1,000/- each. This sentence of fine awarded to the condemned-prisoners is improper or inapposite, though not illegal. As such, the sentence of fine imposed upon the condemned-prisoners, namely, Mujib Ali and Lechu Meah is knocked down....(217)
 
Nowabul Alam and others Vs. State, 15 BLD (AD) 54; Muslimuddin and others Vs. State, 38 DLR (AD) 311; Abu Taher Chowdhury and others Vs. State, 11 BLD (AD)2; Maharaja of Kolhapur Vs. S. Sundaram Ayyar and others, AIR 1925 Madras 497; Abdul Latif alias Budu and others Vs. State, 14 BLD 94; State Vs. Manjur, 15 BLD 193; State Vs. Anwar Hossain and others, 14 BLC 440; State represented by the Solicitor, Ministry of Law and Justice, Government of Bangladesh Vs. Montu alias Nazrul Haque and others, 44 DLR (AD) 287; State Vs. Ful Mia, 5 BLC (AD) 58; Siddique Munshi Vs. State, 44 DLR (AD) 169; Masalti Vs. State of Uttar Pradesh, AIR 1965 (SC) 202; Nazir Vs. State, 14 DLR (SC) 159; Abdul Karim Vs. State and another, 1981 BLC (AD) 200; Mohammad Ali alias Shanu Vs. State, 13 MLR (AD) 121; Siraj Mal and others Vs. State, 45DLR 688; State of Rajasthan Vs. Snt. Kalki and another, AIR 1981 SC 1390; Lal Khan Vs. Muhammad Sadiq and others, 20 DLR (SC) 306; Habibur Rahman @ Habib Vs. State, 8 BLD 210; Abul Hossain and others Vs. State, 13 BLD 311; Nurul Hoque and another Vs. State, 20 DLR 780; Ali Asgar and another Vs. State, 1986 BLD 436; State Vs. Punardhar Joydhar alias Kudu and Shefali, 31 DLR 312; Hazrat Ali and another Vs. State, 1990 BLC 38; Bakul Chandra Sarkar Vs. State, 45 DLR 260; Barendra Kumar Ghosh Vs. King Sinperor, AIR 1925 PC 1; Mahbub Shah Vs. King Simperor, AIR 1945 PC 118; Hassan Vs. State, 1969 SCMR 454; Abu Sayed and another Vs. State, 38 DLR 17; Muhammad Akbar and two others Vs. State, PLD 1991 SC 923; Sk. Badrul Islam Vs. State, 11 BLD 158; Abu Sayed and another Vs. State, 38 DLR 17; State Vs. Idris Pandit and Anu Mia, 25 DLR 232; Bandez Ali alias Md. Bandez Ali Vs. State, 40 DLR (AD) 200; Solicitor to the Government of the Peoples Republic of Bangladesh Vs. Ashraf Ali, 46 DLR (Ad) 24; State Vs. Rokeya Begum alias Rokaya Begum and another, 13 BLT 377; Madan Gopal Kakkad Vs. Naval Dubeya and another, 3 SCC (1992) 204 ref.
 
Mr. S. M. Shahjahan with
Mr. Md. Nizamul Haque, Advocates
….For the condemned-appellant in Criminal Appeal No. 4263 of 2007.

Mrs. Hamida Chowdhury with
Mr. Md. Nizamul Haque, Advocates
….For the appellant in Criminal Appeal No. 2018 of 2007.

Mrs. Hamida Chowdhury with
Mr. Md. Nizamul Haque, Advocates
….For the appellants in Criminal Appeal No. 1913 of 2007.

Mr. Mr. S. M. Shahjahan with
Mr. Md. Nizamul Haque, Advocates
….For the appellants in Criminal Appeal No. 2529 of 2007.

Mr. Belayet Hossain, Advocate
….For the appellant in Criminal Appeal No. 2244 of 2011.

Mrs. Shirin Afroze, Advocate appointed by the National Legal Aid Committee, Dhaka, Bangladesh.
.....For the appellant in Jail Appeal No. 273 of 2007.

Mr. Md. Khabir Uddin Bhuiyan, Advocate appointed by the National Legal Aid Committee, Dhaka, Bangladesh.
.....For the appellant in Jail Appeal No. 274 of 2007.

Mr. Md. Khabir Uddin Bhuiyan, Advocate appointed by the National Legal Aid Committee, Dhaka, Bangladesh.
.....For the condemned-appellant in Jail Appeal No. 275 of 2007.

Mr. Md. Khurshedul Alam, DAG with
Mr. Delowar Hossain Somadder, AAG,
Mrs. Mahmuda Parveen, AAG and
Mr. Md. Kamruzzaman Salim, Advocate
....For the State in Criminal Appeal Nos. 4263 of 2007, 2018 of 2007, 1913 of 2007, 2529 of 2007, 2244 of 2011, Jail Appeal Nos. 273 of 2007, 274 of 2007 and 275 of 2007 and Death Reference No. 25 of 2007.

Criminal Appeal No. 4263 of 2007  with Criminal Appeal No. 2018 of 2007 with Criminal Appeal No. 1913 of 2007  with Criminal Appeal No. 2529 of 2007 with Criminal Appeal No. 2244 of 2011 with Jail Appeal No. 273 of 2007  with Jail Appeal No. 274 of 2007 with Jail Appeal No. 275 of 2007  and Death Reference No. 25 of 2007
 
J  U  D  G  M  E  N  T
MOYEENUL ISLAM CHOWDHURY, J:
 
The Criminal Appeal Nos. 4263 of 2007, 2018 of 2007, 1913 of 2007, 2529 of 2007, 2244 of 2011 and the Jail Appeal Nos. 273 of 2007, 274 of 2007 and 275 of 2007, at the instance of the convicts, are directed against the judgment and order of conviction and sentence dated 21.03.2007 passed by Mr. Md. Rafiqul Alam, Additional Sessions Judge, 1st Court, Sylhet in Sessions Case No. 169 of 2004 arising out of G. R. Case No. 87 of 2003 corresponding to Biswanath Police Station Case No. 07 dated 09.08.2003. By the impugned judgment and order, the learned Additional Sessions Judge convicted the accused-appellants under Section 302 of the Penal Code, 1860 and sentenced the appellants Mujib Ali and Lechu Meah @ Kamal Ahmed to death and to pay a fine of Tk. 1,000/- each and also convicted and sentenced the other appellants thereunder to suffer imprisonment for life and to pay a fine of Tk. 1,000/- each, in default, to suffer rigorous imprisonment for a further period of 2(two) months each. He also convicted the appellants under various other Sections of the Penal Code and sentenced them thereunder to different terms of imprisonment. The learned Additional Sessions Judge also made a Reference to the High Court Division under Section 374 of the Code of Criminal Procedure for confirmation of the death sentence imposed upon the appellants Mujib Ali and Lechu Meah.
 
All the appeals and the Death Reference have been heard together and are disposed of by this consolidated judgment.
 
The prosecution version of the case, in short, is as follows:

On 09.08.2003 at about 3.00/3.30 A. M. (in the early hours of 09.08.2003), the informant Md. Fatik Miah Chowdhury and the members of his family were asleep at their house at village Nobhagi under Police Station Biswanath, District- Sylhet and at that time, at the sound of some people inside the bed-room of Hosne Ara Lovely, the P. W. 2 Md. Masud Miah Chowdhury woke up from sleep and saw the electric light of the room switched on and also saw four persons, namely, Mujib, Sohrab, Ustar and Lechu being armed with deadly weapons there. The accused Mujib made a query to Lovely as to the whereabouts of her husband and in case of her failure to disclose his whereabouts, they would finish her off. But Lovely refused to disclose the whereabouts of her husband to the accused Mujib. At this, the accused Mujib dealt a dagger blow on the head of Lovely as a result of which she fell down on her bed. He lifted her from the bed once again and wanted to know the whereabouts of her husband and when she refused to disclose the same, he again dealt a dagger blow on her head in consequence of which she fell down and started writhing in pain on the bed. At that point of time, Aklima Begum, a baby aged about one year and a half, who was beside Lovely on the bed started crying out and at this, the accused Lechu took her away from the room by holding her throat and thereafter all the accused left the place of occurrence. After the departure of the accused, the P. W. 2 Md. Masud Miah Chowdhury raised a hue and cry and on hearing the same, his paternal uncles, namely, Md. Manjur Miah Chowdhury and Md. Farid Miah Chowdhury along with their spouses and others came to the place of occurrence and he (P.W. 2) narrated the occurrence to them. Anyway, Md. Manjur Miah Chowdhury told that he woke up from sleep on hearing the crying sound of a child and wanted to open the door; but it was closed from outside and then he wanted to come out through the window by taking a ‘bendah’ in his hand and then the accused Abul Hossain, Sohrab and Shamshad dealt blows on the ‘bendah’. On hearing an outcry from Md. Manjur Miah Chowdhury, Md. Farid Miah Chowdhury woke up from sleep and opened the door. However, the informant-party could recognize all the accused, that is to say, Mujib, Sohrab, Ustar, Lechu, Shamshad, Selim, Bari, Aftab Ali, Abdul Matin, Amir Ali, Amir Hossain and Abul Hossain by means of electric lights. The husband of Lovely, namely, Md. Fatik Miah Chowdhury (P. W. 1) came to the place of occurrence room from the drawing room of the house and the P.W. 2 Md. Masud Miah Chowdhury and his paternal uncles narrated the occurrence to him (P. W. 1). Subsequently the informant-party looked for the whereabouts of Aklima and at one stage, they found her dead body floating in the pond behind their house. The police, however, lifted the dead body of Aklima from the pond and held inquests on the deceased Lovely and Aklima and sent the same to the morgue of Sylhet Osmany Medical College Hospital for autopsies. Thereafter the informant Md. Fatik Miah Chowdhury (P.W. 1) lodged an ejahar with Biswanath Police Station against the accused.
 
The Investigating Officer of the case is the P. W. 21 Sub-Inspector Md. Monjurul Murshed of Biswanath Police Station, Sylhet. During investigation, he visited the place of occurrence, made a sketch-map thereof along with a separate index, examined witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure. Sub-Inspector Md. Monjurul Murshed also produced the accused Abul Hossain and Abdul Matin to the learned Magistrate concerned for recording of their confessional statements and accordingly, the learned Magistrate recorded the same as per Section 164 of the said Code. Sub-Inspector Md. Monjurul Murshed procured the autopsy-reports of the deceased Lovely and Aklima during investigation. Having found a prima facie case, Sub-Inspector Md. Monjurul Murshed submitted the charge-sheet no. 86 dated 24.11.2003 against all the accused under Sections 302/34 of the Penal Code.
 
At the commencement of the trial of the case, the learned trial Judge charged all the accused under various Sections of the Penal Code including Sections 302/34 of the Penal Code, 1860. The charge was read over and explained to the accused present in the dock; but they pleaded not guilty thereto and claimed to be tried as per law.
 
The defence version of the case, as it appears from the trend of cross-examination of the prosecution witnesses, is that two paternal uncles of the P. W. 2 Md. Masud Miah Chowdhury, namely, Shahed Miah Chowdhury and Khaled Miah Chowdhury used to send money from abroad to the bank account of Lovely maintained with Sonali Bank, Kamal Bazar Branch, Biswanath, Sylhet and there were disputes with regard to that money between Lovely and other paternal uncles of the said P. W. 2 as a result of which those paternal uncles of the P. W. 2 killed Lovely and her baby Aklima and as such one Jamal Ahmed, maternal uncle of the P. W. 2, filed Petition Case No. 41 of 2003 against his five paternal uncles in the Criminal Court and the accused have been falsely implicated in this case out of previous enmity and bad blood and the alleged confessional statements of the accused Abul Hossain and Abdul Matin are the products of police torture, oppression and maltreatment.
 
After hearing both the prosecution and the defence and on an appraisal of the evidence and materials on record and having regard to the attending circumstances of the case, the Court below came to the finding that the prosecution brought the charge home against the appellants and others and accordingly, it convicted and sentenced them by the impugned judgment and order as aforesaid.
 
Being aggrieved at and dissatisfied with the impugned judgment and order, the convict-appellants have preferred the instant appeals. As already observed, the learned trial Judge has also made a statutory reference to the High Court Division for confirmation of the death sentence imposed upon the appellants Mujib Ali and Lechu Meah @ Kamal Ahmed.
 
The only point for determination in the appeals and the Death Reference is whether the impugned judgment and order dated 21.03.2007 is sustainable in law or not? 
 
At the outset, Mr. S. M. Shahjahan, learned Advocate appearing for the appellants in Criminal Appeal Nos. 4263 of 2007 and 2529 of 2007, submits that it is an admitted fact that the informant of the case, that is to say, Md. Fatik Miah Chowdhury (P.W. 1) died during the pendency of the case in the lower Court and as such, he could not finish his deposition therebefore and since he was partly examined-in-chief, the evidentiary value of the statements made by him shall stand diminished.
 
Mr. S. M. Shahjahan further submits that the evidence on record shows that after the occurrence, the P. W. 1 Md. Fatik Miah Chowdhury gave a telephonic call to the local Chairman Md. Rajab Ali (P. W. 13) about the occurrence and the P. W. 13 in his turn gave a message to the then Second Officer of Biswanath Police Station, namely, Sub-Inspector Asaduzzaman about the occurrence and Sub-Inspector Asaduzzaman recorded G. D. Entry No. 297 dated 09.08.2003 (Exhibit-20) and after lodgment of the G. D. Entry with the Police Station, the police force under the leadership of Sub-Inspector Asaduzzaman rushed to the place of occurrence at village Nobhagi and the P. W. 21 Md. Monjurul Murshed held inquests on the deceased Lovely and Aklima and sent the same to the morgue of the hospital for autopsies; but curiously enough, the P. W. 1 Md. Fatik Miah Chowdhury did not disclose the names of the accused at the time of his telephonic conversation with the P. W. 13 Md. Rajab Ali or to the police even at the time of holding inquests on the deceased Lovely and Aklima and by that reason, the P. W. 21 Md. Monjurul Murshed was not aware of the names of the accused and as such the two inquest-reports do not contain the names of any of the accused and the belated disclosure of the names of the accused by the P.W. 1 Md. Fatik Miah Chowdhury at the time of lodgment of the formal ejahar with the Police Station concerned gave a long rope to the prosecution for embellishment of the prosecution story; but the learned trial Judge failed to consider this aspect of the case occasioning a miscarriage of justice.
 
Mr. S. M. Shahjahan also submits that in a criminal case, the disclosure of the names of the accused at the earliest opportunity is of paramount importance with a view to preventing any subsequent embellishment of the prosecution story and the lodgment of the formal ejahar with the Police Station after about 20(twenty) hours of the occurrence has rendered the prosecution case doubtful entitling his clients to an order of acquittal; but the learned trial Judge failed to take into account this dimension of the case resulting in a failure of justice.
 
Mr. S. M. Shahjahan next submits that the only star prosecution witness is the P. W. 2 Md. Masud Miah Chowdhury who was aged about 14.5 years at the time of the occurrence and 16 years at the time of his deposition before the trial Court and he, being a tender boy and an interested witness, should not have been believed at all in view of the attending circumstances of the case especially due to non-disclosure of the names of the accused during 20(twenty) hours after the occurrence and prior to the lodgment of the formal ejahar with the Police Station; but the Court below placed its reliance on the P. W. 2 and illegally convicted and sentenced his clients.
 
Mr. S. M. Shahjahan further submits that the occurrence took place during night-time and in this perspective, the means of recognition of the accused is of vital importance, but strangely enough, no electric bulb was seized from the place of occurrence by the Investigating Officer (P.W. 21) to prove the means of recognition and in the absence of seizure of any electric bulb, the prosecution case has become doubtful and in this view of the matter, the lower Court ought to have acquitted his clients of the charge levelled against them.
 
Mr. S. M. Shahjahan also submits that the manner of entry of the accused Mujib and Lechu, amongst others, into the place of occurrence room at the relevant time has not been proved at all by the prosecution and this factum renders the prosecution version suspect entitling his clients to an order of acquittal.
 
Mr. S. M. Shahjahan further submits that the confessional statement of the convict-appellant Abul Hossain is a product of police torture and oppression and taking his confessional statement as it stands, it does not manifest that he participated in the occurrence; but the lower Court did not consider this aspect of the case and wrongly convicted and sentenced Abul Hossain.
 
Mr. S. M. Shahjahan next submits that having regard to the totality of the evidence on record and attending circumstances of the case, his clients (Mujib, Lechu and Abul Hossain) ought to have been awarded the benefit of doubt by the trial Court; but the trial Court on misappreciation of the evidence on record, erroneously convicted and sentenced them by the impugned judgment and as such the same is liable to be reversed.
 
Mr. S. M. Shahjahan also submits that the common intention of the accused, if any, was to kill the P. W. 1 Md. Fatik Miah Chowdhury and not his wife Lovely and their baby Aklima and in such view of the matter, it can not be said that the accused were animated by any common intention to kill Lovely and Aklima and it is also not understandable as to why the accused Mujib and Lechu would kill Lovely and Aklima respectively and the accused have been falsely implicated in the case out of previous animosity and against this backdrop, the accused should have been acquitted of the charge brought against them.
In support of the above submissions, Mr. S. M. Shahjahan relies upon the decisions in the cases of Nowabul Alam and others Vs. The State, 15 BLD (AD) 54; Muslimuddin and others Vs. The State, 38 DLR (AD) 311; Abu Taher Chowdhury and others….Vs…The State, 11 BLD (AD) 2; Maharaja of Kolhapur Vs. S. Sundaram Ayyar and others,  AIR 1925 Madras 497; Abdul Latif alias Budu and others Vs. The State, 14 BLD (HCD) 94; The State Vs. Manjur, 15 BLD (HCD) 193 and The State Vs. Anwar Hossain and others, 14 BLC (HCD) 440.
 
Mr. Md. Khabir Uddin Bhuiyan, learned Advocate appearing on behalf of the appellants in Jail Appeal Nos. 274 of 2007 and 275 of 2007, contends that the names of the appellants, namely, Mujib and Abul Hossain were not disclosed to the P. W. 13 Md. Rajab Ali by the informant (P. W. 1) Md. Fatik Miah Chowdhury at the time of telephonic transmission of the message of the occurrence and the inquest-reports of the deceased Lovely and Aklima too are conspicuously silent about the names of the accused Mujib Ali, Abul Hossain and others and that being so, the prosecution case is doubtful; but the Court below did not consider this dimension of the case and illegally convicted and sentenced them by the impugned judgment.
 
Mrs. Hamida Chowdhury, learned Advocate appearing for the appellants in Criminal Appeal Nos. 2018 of 2007 and 1913 of 2007, adopts the submissions advanced by the learned Advocate Mr. S. M. Shahjahan.
 
Mrs. Shirin Afrozee, learned Advocate appearing for the appellant in Jail Appeal No. 273 of 2007, submits that in the facts and circumstances of the case and in view of the evidence on record, the prosecution case is doubtful and as such the appellant Amir Ali should have been acquitted of the charge levelled against him.
 
Mr. Belayet Hossain, learned Advocate for the appellant in Criminal Appeal No. 2244 of 2011, does not appear before this Court at the time of hearing of the appeal. However, the appeal will be disposed of on merit.
 
In contrast, Mr. Md. Khurshedul Alam, learned Deputy Attorney-General appearing on behalf of the State-respondent  and in support of the Death Reference, argues that the P. W. 2 Md. Masud Miah Chowdhury is the star prosecution witness and he has given a blow-by-blow account of the occurrence leading to the death of Lovely and Aklima and he has remained unshaken in his cross-examination and by that reason, his evidence is worthy of credence, though he is an interested witness and the learned trial Judge rightly relied upon the expansive deposition of the P. W. 2 along with other evidence on record in convicting and sentencing the appellants and others and as such no exception can be taken to the impugned judgment.
 
Mr. Md. Khurshedul Alam also argues that the informant Md. Fatik Miah Chowdhury was shell-shocked and traumatized at the death of his wife Lovely and their child Aklima and on that account, he could not disclose the names of the accused to the P. W. 13 Md. Rajab Ali at the time of his telephonic conversation with him, but this circumstance has not rendered the prosecution case doubtful in any way.
 
Mr. Md. Khurshedul Alam further argues that it is in the cross-examination of the P. W. 13 Md. Rajab Ali that prior to holding of the inquests of the deceased Lovely and Aklima, the P.W. 1 Md. Fatik Miah Chowdhury disclosed the names of the accused to Sub-Inspector Asaduzzaman and Sub-Inspector Asaduzzaman wrote an ejahar according to the narration given by the P. W. 1 Md. Fatik Miah Chowdhury; but because of the sudden death of Sub-Inspector Asaduzzaman during the pendency of the case in the lower Court, no explanation is forthcoming as to what Sub-Inspector Asaduzzaman did with the plain-paper ejahar in view of the admitted fact that he did not initiate any case on the basis of that plain-paper ejahar and considered from this standpoint, it can not be said that the P. W. 1 Md. Fatik Miah Chowdhury did not disclose the names of the accused prior to holding of the inquests of the deceased Lovely and Aklima and given this scenario and in view of the facts and circumstances of the case, the disclosure of the names of the accused can not be regarded as very belated.
 
Mr. Md. Khurshedul Alam also argues that it is true that no plain-paper ejahar was given to the P. W. 21 Sub-Inspector Md. Monjurul Murshed and it is in his cross-examination that he did not receive any written or verbal ejahar from the informant-party before holding of the inquest of the deceased Lovely and Aklima; but the informant is not to blame for this state of affairs and it is only Sub-Inspector Asaduzzaman who is to blame for non-initiation of any case on the basis of the plain-paper ejahar which was written as per the dictation of the informant (P. W. 1) Md. Fatik Miah Chowdhury and judged from this perspective, the lodgment of the formal ejahar with the Police Station concerned after 20(twenty) hours from the time of the occurrence will not tell upon the merit of the case.
 
Mr. Md. Khurshedul Alam next argues that because of non-seizure of any electric bulb from the place of occurrence, the prosecution case can not be rendered doubtful in view of the unimpeachable and unblemished evidence of the P. W. 2 Md. Masud Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury and P. W. 5 Kulsuma Begum coupled with the medical evidence on record.
 
Mr. Md. Khurshedul Alam further argues that the distance between the place of occurrence and Biswanath Police Station is 23 (twenty-three) kilometres and indisputably two persons, namely, Lovely and Aklima were done to death and what is more, a mature foetus (nine-month-old) was also killed in the uterus along with Lovely and after pulling himself together from this shock wave, the informant performed the funeral rites of the deceased Lovely and Aklima and in the process some time definitely elapsed and the delay for about 20(twenty) hours in the matter of lodgment of the formal ejahar with the concerned Police Station will not create any doubt as to the veracity of the prosecution case in any manner.   
 
Mr. Md. Khurshedul Alam also argues that although the P. W. 2 Md. Masud Miah Chowdhury, P. W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum and P. W. 10 Sundari Bibi Chowdhury are interested witnesses, yet the fact remains that their evidence does not suffer from any legal infirmity and they have told the unvarnished truth to the trial Court and as they are credible witnesses despite their interestedness, the lower Court rightly convicted and sentenced the appellants and others by the impugned judgment.
 
Mr. Md. Khurshedul Alam also argues that it is true that in furtherance of common intention to kill the P. W. 1 Md. Fatik Miah Chowdhury, all the accused assembled at the place of occurrence and four of them, namely, Mujib, Ustar, Sohrab and Lechu entered the place of occurrence room and having failed to trace out the whereabouts of the P. W. 1 Md. Fatik Miah Chowdhury, those four accused were animated by common intention to kill Lovely and Aklima and  that common intention developed at the spot on the spur of the moment and in furtherance of that common intention, both Lovely and Aklima were done to death in a brutal and gruesome manner and as such they were rightly served by the impugned judgment.
 
Mr. Md. Khurshedul Alam further argues that the invincible ocular evidence of the star prosecution witness Md. Masud Miah Chowdhury (P.W. 2) stands corroborated by the medical evidence and the confessional statements of the accused Abul Hossain and Abdul Matin and this being the position, the learned trial Judge rightly believed the prosecution case and convicted and sentenced the appellants and others by the impugned judgment.
 
Mr. Md. Khurshedul Alam also argues that the occurrence took place at dead of night and as such there was no scope to see the occurrence by any independent, disinterested and non-partisan witness and in this context, the prosecution had to rely necessarily on the evidence of the interested witnesses, namely, P. W. 2 Md. Masud Miah Chowdhury and other inmates of the house.
 
Mr. Md. Khurshedul Alam further argues that the defence version of the case that Lovely and Aklima were killed at the hands of the paternal uncles of the P. W. 2 Md. Masud Miah Chowdhury stands belied by the evidence of the P. W. 21 Md. Monjurul Murshed and the certificate of the local Sonali Bank Manager (Exhibit-18) and consequently the learned trial Judge legally accepted the prosecution version of the case and recorded the impugned order of conviction and sentence.
 
In support of the above submissions, the learned Deputy Attorney-General Mr. Md. Khurshedul Alam draws our attention to the decisions in the cases of The State represented by the Solicitor, Ministry of Law & Justice, Government of Bangladesh Vs. Montu alias Nazrul Haque & others, 44 DLR (AD) 287; The State Vs. Ful Mia, 5 BLC (AD) 41 and Chowdhury Nuruzzaman & another Vs. The State, 6 BLC (AD) 58.
 
We have heard the submissions of the learned Advocates Mr. S. M. Shahjahan, Mr. Md. Khabir Uddin Bhuiyan, Mrs. Hamida Chowdhury and Mrs. Shirin Afrozee and the counter-submissions of the learned Deputy Attorney-General Mr. Md. Khurshedul Alam.
 
With a view to arriving at a correct decision in the appeals as well as in the Death Reference, we are to advert to and scrutinize the relevant evidence and attending circumstances by way of juxtaposing both the prosecution and defence versions of the case.  
 
At the trial, the prosecution has examined 22 (twenty-two) witnesses and tendered one witness in all on its side. But the defence has examined none.
 
Anyway, the P.W. 1 is the informant Md. Fatik Miah Chowdhury. He deposes that his nine-month-pregnant wife Hosne Ara Lovely and daughter Aklima, aged about one year and a half, were killed on 09.08.2003.
 
The P. W. 1 Md. Fatik Miah Chowdhury also deposes that he retired as Havildar from the Army and their dwelling house is east-facing that extends from north to south and his brothers reside in the southern rooms of the house and there is a pathway between his dwelling rooms and those of his brothers under the same roof and his (P.W. 1) kitchen is contiguous to the southern room.
 
The P. W. 1 Md. Fatik Miah Chowdhury next deposes that on 09.08.2003, his wife Lovely and daughters Aklima and Mohima were on the cot in the 3rd room (bed-room) from the south and his sons Masud Miah Chowdhury and others slept on the floor of that room and in the northern room, his mother and two sons and one daughter slept.
 
The P. W. 1 Md. Fatik Miah Chowdhury further deposes that on that night they went to bed at 10.30 o’clock and at about 3.00 o’clock, he woke up from sleep on hearing a hue and cry and he went to the room of his wife (place of occurrence room), saw his younger brother Farid Miah Chowdhury and his children and others there and found his wife almost dead in bleeding condition with injuries on her head and forehead.
 
The P. W. 2 is Md. Masud Miah Chowdhury. He testifies that the informant is his father and he died on 5th November, 2004 and Aklima is his younger sister and Hosne Ara Lovely is his mother, but they were killed.
 
The P. W. 2 Md. Masud Miah Chowdhury also testifies that on the night following 08.08.2003, his mother and 2(two) sisters slept on the cot and he along with his 3(three) younger brothers slept on the floor of the place of occurrence room (room no. 3 of the dwelling-house from the southern side).
 
The P. W. 2 Md. Masud Miah Chowdhury also testifies that at about 3.00 o’clock during night-time, he woke up from sleep on hearing a sound, saw the electric light of the room switched on and also saw 4(four) persons, namely, Mujib, Sohrab, Ustar and Lechu armed with dao, dagger etc. and then the accused Mujib wanted to know the whereabouts of his father from his mother and when his mother refused to disclose his whereabouts, the accused Mujib dealt a dagger blow on her mother’s head as a result of which she fell down on the bed and the accused Mujib lifted her from the bed and wanted to know the whereabouts of his father from her once again and because of her refusal for the second time, the accused Mujib dealt another dagger blow on her head and at this she fell down on the bed again and started writhing in pain and at this point of time, his younger sister Aklima woke up from sleep and cried out and the accused Lechu took her away outside the room by holding her throat and the other accused also followed suit.
 
The P. W. 2 Md. Masud Miah Chowdhury next testifies that he raised a hue and cry and his paternal uncles Manjur Miah Chowdhury and Farid Miah Chowdhury along with their wives came to the place of occurrence room and he narrated the occurrence to them and then Manjur Miah Chowdhury told them that he woke up from sleep on hearing the crying sound of a child and wanted to open the door; but it was found closed from outside and then he wanted to come out through the window by taking a ‘bendah’ in his hand and then the accused Abul, Sohrab and Shamshad dealt blows on the ‘bendah’.
 
The P. W. 2 Md. Masud Miah Chowdhury also testifies that afterwards his father (P. W. 1) came to the place of occurrence room from the drawing room and he (P.W. 2) and his uncles narrated the occurrence to him.
 
The P. W. 2 Md. Masud Miah Chowdhury further testifies that they looked for the whereabouts of Aklima and found her dead body floating in the pond behind their house and in the following morning, the police lifted the dead body of Aklima from the pond, held inquests on the deceased Lovely and Aklima and sent the dead bodies to Sylhet Osmany Medical College Hospital for post-mortem examinations and after holding of post-mortem examinations, the dead bodies were buried and thereafter his father and paternal uncles Manjur Miah Chowdhury and Farid Miah Chowdhury and others went to Biswanath Police Station and his father lodged an ejahar therewith against the accused.
 
The P. W. 2 Md. Masud Miah Chowdhury also testifies that at the time of the occurrence, his mother was nine-month-pregnant and his younger sister Aklima was aged about one year and a half.
 
The P. W. 2 Md. Masud Miah Chowdhury further testifies that he knows the seizure-list witness Mokaddes Ali and now he is a paralytic patient and on 10.08.2003 at about 1.45 A. M., the police seized a blood-stained bed-sheet, a blood-stained khatha, two blood-stained pillows, a ‘bendah’, some pieces of broken fence and other articles as per seizure-list and Mokaddes Ali signed the seizure-list (Exhibit-2) as a witness in his presence.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury states that in the following morning of the occurrence at about 7.30 o’clock, the police came to the place of occurrence and they narrated the occurrence to the police and at that time, 50/60 people were present.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury further states that they slept by switching off the light and he was frightened at the sight of the armed people inside the place of occurrence room and at that time, he did not raise any outcry.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury denies defence suggestions that the accused Mujib did not deal repeated dagger blows on the head of his mother or that he did not raise any hue and cry after the accused had left the place of occurrence.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury also states that after Magreb prayer, the dead bodies of his mother and sister reached their house from the morgue and on that day, there was drizzling and at about 8.30/9.00 P.M., the deceased were laid to rest.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury admits that his paternal uncle Shahed Miah Chowdhury lives in London and another paternal uncle Khaled Miah Chowdhury lives in Saudi Arabia.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury also denies a defence suggestion that his expatriate paternal uncles used to send money to his mother and there were disputes with regard to that money between his mother and his other paternal uncles and his paternal uncles Manjur Miah Chowdhury and Farid Miah Chowdhury along with three hired goons killed his mother Lovely and sister Aklima.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury also admits that his maternal uncle Jamal Ahmed filed Petition Case No. 41 of 2003 against his five paternal uncles after the occurrence and he is not aware of the result of the case.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury further denies a defence suggestion that no occurrence took place as deposed to by him.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdhury also states that he hails from Nobhagi village under Biswanath Police Station and one portion of Nobhagi village is within the territorial limits of  Biswanath Police Station and the other portion thereof is within those of South Surma Police Station.
 
In his cross-examination, the P. W. 2 Md. Masud Miah Chowdury further denies a defence suggestion that the accused Lechu did not take away the victim Aklima by holding her throat.
 
The P. W. 3 is Md. Farid Miah Chowdhury. He states in his evidence that the informant is his full-brother and the deceased Hosne Ara Lovely is the wife of the informant and the deceased Aklima is the daughter of the informant and the deceased Lovely and on the night following 08.08.2003 at about 11.00 o’clock, he along with the members of his family went to bed after having their dinner and at about 3.00/3.15 o’clock, he woke up from sleep on hearing an outcry from his younger brother Manjur Miah Chowdhury and he opened the back door and saw people armed with dao, dagger etc. and by means of electric light, he could recognize the accused Mujib, Abdul Bari, Sohrab etc. who were outside the house and at their hue and cry, the accused ran away and he along with his brother Manjur Miah Chowdhury and his wife and others saw the broken fence in the southern portion of the kitchen of the informant and also saw its door open and they entered the place of occurrence room through that door and found Lovely in bleeding condition on the cot and then his brother Md. Fatik Miah Chowdhury came to the place of occurrence room and wept.
 
The P. W. 3 Md. Farid Miah Chowdhury also states in his evidence that Masud told them that he could recognize the accused Mujib, Sohrab, Ustar and Lechu and the accused Mujib dealt two dagger blows on the head of Lovely and the accused Lechu took away Aklima by holding her throat and afterwards they looked for the whereabouts of Aklima and in the following morning, they found the dead body of Aklima in floating condition in the pond behind their house and the Chairman, villagers and police personnel came and lifted the dead body from the pond and the police held inquests on the dead bodies of Lovely and Aklima and sent the same to the morgue of Osmany Medical College Hospital for post-mortem examinations and both the deceased were buried after dusk.
 
The P. W. 3 Md. Farid Miah Chowdhury also states in his evidence that at the time of the occurrence, his sister-in-law (Lovely) was nine-month-pregnant and Aklima was aged about one year and a half.
 
In his cross-examination, the P. W. 3 Md. Farid Miah Chowdhury states:

“মৃতা হোসনে আরা লাভলীর ভাই জামাল আহমদ উক্ত ঘটনা সম্পর্কে যে মামলা করিয়াছে, সেই মামলায় আমি ২নং আসামী।”
 
In his cross-examination, the P. W. 3 Md. Farid Miah Chowdhury denies a defence suggestion that his expatriate brothers Shahed Miah and Khaled Miah used to send money to Lovely.
 
In his cross-examination, the P. W. 3 Md. Farid Miah Chowdhury further states that their house is electrified and the informant made the telephone call from the house of one Chamak Ali.
 
In his cross-examination, the P. W. 3 Md. Farid Miah Chowdhury also denies a defence suggestion that the accused have been falsely implicated in the case in order to save themselves from the liability of killing Lovely and Aklima.
 
In his cross-examination, the P. W. 3 Md. Farid Miah Chowdhury next states that the informant was a Member of Biswanath Thana Law and Order Committee.
 
The P.W. 4 is Md. Manjur Miah Chowdhury. He discloses in his evidence that the informant is his full-brother and the deceased Lovely and Aklima are respectively his sister-in-law and niece and both of them were killed.
 
The P. W. 4 Md. Manjur Miah Chowdhury also discloses in his evidence that on the night following 08.08.2003, his three elder children slept in the pucca room and he along with his wife and daughter Nabila slept in the room made of mud-fencing and on that night at about 3.00/3.30 o’clock, he and his wife woke up from sleep on hearing the crying sound of a child and he took a ‘bendah’ in his hand and pulled the door, but he found that the door had been closed from outside and then he opened the western window and saw by means of electric light that the accused Lechu had been taking away Aklima by holding her throat and when he attempted to come out through the window with the ‘bendah’ in his hand, the accused Abul, Sohrab and Shamshad dealt some blows aiming at him and he repulsed the blows with the ‘bendah’ and then by means of electric light, he could recognize the accused Mujib, Sohrab, Ustar, Lechu, Bari, Shamshad, Selim, Aftab, Amir Ali, Amir Hossain, Abul Hossain and Matin and when they (P.W. 4 and others) raised a hue and cry, the accused went away.
 
The P. W. 4 Md. Manjur Miah Chowdhury next discloses in his evidence that his brother Farid Miah Chowdhury and his wife came out at first and he (P. W. 4) and his wife Kulsuma Begum also came out thereafter and they saw the broken fencing of the kitchen of Md. Fatik Miah Chowdhury (P. W. 1) and its open door and they entered the place of occurrence room and found Lovely in bleeding condition with two dagger injuries on her head on the cot and his nephew Masud told them that the accused Mujib had dealt two dagger blows on the head of Lovely and at that time, the accused  Sohrab, Ustar and Lechu were inside the place of occurrence room and the accused Lechu had taken away Aklima and at that point of time, his brother Fatik Miah Chowdhury came to the place of occurrence room from the drawing room and he embraced his wife who was in bleeding condition.
 
The P. W. 4 Md. Manjur Miah Chowdhury further discloses in his evidence that he along with his brother Farid Miah Chowdhury and others looked for the whereabouts of Aklima, but in vain and in the following morning when the sky became clear, they found the dead body of Aklima floating in the pond behind their house and subsequently the Chairman and police came and lifted the dead body of Aklima from the pond.
 
The P. W. 4 Md. Manjur Miah Chowdhury next discloses in his evidence that he is a witness to the inquest held on the dead body of Aklima and he signed the inquest-report as a witness.
 
In his cross-examination, the P. W. 4 Md. Manjur Miah Chowdhury denies a defence suggestion that his expatriate brothers Shahed Miah and Khaled Miah used to send money to Lovely and he along with his brother Farid Miah Chowdhury killed Lovely and her daughter Aklima with a view to grabbing the money.
 
In his cross-examination, the P. W. 4 Md. Manjur Miah Chowdhury also denies a defence suggestion that the accused have been falsely implicated in the case out of political vengeance.
 
In his cross-examination, the P. W. 4 Md. Manjur Miah Chowdhury further denies a defence suggestion that the accused Shamshad and others did not deal blows aiming at him.
 
The P. W. 5 is Kulsuma Begum. She is the wife of the P. W. 4 Md. Manjur Miah Chowdhury. However, she asserts in her evidence that on the night following 08.08.2003 at about 11.00 o’clock, she along with her husband and younger daughter Nabila slept in the fence-built room behind the pucca house and her two sons and one daughter slept in the pucca house and at about 3.00/3.15 o’clock, she and her husband woke up from sleep hearing the crying sound of a child and then her husband with a ‘bendah’ in his hand tried to open the northern door, but he could not do so because it was closed from outside and then her husband opened the western fence-built window and they saw by means of outside electric light that the accused Lechu had been taking away Aklima by holding her throat and when her husband wanted to go out, the accused Sohrab, Abul and Shamshad landed some blows aiming at her husband; but he resisted the same with the ‘bendah’ and then they (P. W. 5 and others) raised an outcry and on hearing the outcry, Farid Miah Chowdhury and his wife came out and they could recognize the accused Mujib, Abul, Sohrab and Bari and then her husband came out with the ‘bendah’ in his hand and when he opened the door, she also came out and along with others, they saw the broken fence of the kitchen of the informant and its open door.
 
The P. W. 5 Kulsuma Begum further asserts in her evidence that at a subsequent stage, they entered the place of occurrence room and found the light on and Lovely in bleeding condition on the cot and she touched Lovely and found that she had already died and then her brother-in-law Md. Fatik Miah Chowdhury (informant) came to the place of occurrence room from the drawing room and embraced his wife crying.
 
The P. W. 5 Kulsuma Begum also asserts in her evidence that Masud told them that the accused Mujib, Sohrab, Ustar and Lechu had entered the place of occurrence room and he could recognize them by means of electric light and the accused Mujib had dealt dagger blows on the head of Lovely and the accused Lechu had taken away Aklima.
 
The P. W. 5 Kulsuma Begum further asserts in her evidence that they looked for the whereabouts of Aklima, but to no purpose and when the sky became clear in the following morning, they found the dead body of Aklima floating in the pond behind their house and the Chairman and police came and lifted the dead body of Aklima from the pond.
 
In her cross-examination, the P. W. 5 Kulsuma Begum categorically states:

“আমাদের দালানটি ঢালাই করা। দালানের পিছনের ঘরটি টিনের ঘর। দালানের প্রতিটি জানালায় লোহার গ্রীল লাগানো আছে। পিছনের ঘরটি দালানের পশ্চিমে। দালান ও পিছনের ঘরের মাঝে ২/৩ হাত ফাঁক আছে। পিছনের ঘরের জানালায় লোহার কোন গ্রীল নাই।”
 
In her cross-examination, the P. W. 5 Kulsuma Begum further states that a 100 watt electric bulb was on outside and the police saw the bulb, but they did not seize it.

In her cross-examination, the P. W. 5 Kulsuma Begum denies a defence suggestion that she has deposed falsely.
 
The P. W. 6 is Ayesha Khanom. She gives out in her evidence that the deceased Aklima and Hosne Ara Lovely are respectively her niece and sister-in-law.
 
The P. W. 6 Ayesha Khanom also gives out in her evidence that on the night following 08.08.2003 at about 10.30 o’clock, she along with her husband Farid Miah Chowdhury and children went to bed and at about 3.00/3.15 o’clock, on hearing an outcry from her brother-in-law Manjur Miah Chowdhury, she and her husband woke up from sleep and her husband opened the back door of their room and saw four accused, namely, Mujib, Sohrab, Abul and Bari by means of electric light and thereafter she and her husband came out and found Manjur Miah Chowdhury and his wife and they saw the broken fence of the back room (kitchen) and its open door and thereafter they went to the place of occurrence room through that open door and found that Masud Miah Chowdhury was crying and her sister-in-law Hosne Ara Lovely was on the cot in bleeding condition and the electric light of the room was on and then she touched the body of Lovely and found that she had already died and as soon as they raised an outcry, her brother-in-law Fatik Miah Chowdhury came to the place of occurrence room from the drawing room and he embraced his wife.
 
The P. W. 6 Ayesha Khanom further gives out in her evidence that Masud Miah told them that he could recognize the accused Mujib, Sohrab, Ustar and Lechu and the accused Mujib had dealt two dagger blows on the head of Lovely and the accused Lechu had taken away Aklima by holding her throat and then Manjur Miah Chowdhury told them that he had also seen the accused Lechu taking away Aklima by holding her throat by means of electric light and Manjur Miah Chowdhury further told them that he could recognize the twelve accused and the accused Sohrab, Abul and Shamshad had landed blows aiming at him and he resisted the same with a ‘bendah’.
 
The P. W. 6 Ayesha Khanom next gives out in her evidence that they looked for the whereabouts of Aklima; but in vain and subsequently when the sky became clear, the dead body of Aklima was found in floating condition in the pond behind the house and after the arrival of the police and Chairman, the dead body of Aklima was lifted from the pond and the police held an inquest on the dead body of Lovely as per her identification.
 
In her cross-examination, the P. W. 6 Ayesha Khanom denies defence suggestions:

“সত্য নহে যে, খালেদ ও শাহেদ বিদেশ হইতে সব টাকা পয়সা ফটিক চৌধুরীর কাছে পাঠাইত। সত্য নহে যে, হোসনে আরা লাভলী ঐ টাকা নিজে খরচ করিত ও তাহার শ্বাশুড়ী ও ভাইকে দিত। সত্য নহে যে, এই হিংসায় আমি, আমার স্বামী, দেবর ও দেবরের সএী এই ঘটনা ঘটাইয়া গ্রামের নিরীহ লোককে মামলায় জড়াইয়াছি। সত্য নহে যে, এই ঘটনা হইতে বাচাঁর জন্য মিথ্যা ঘটনা সাজাইয়া একদিন পরে মামলা দেই।”
 
The P. W. 7 is Halima Begum. She is the daughter of Md. Fatik Miah Chowdhury (P. W. 1). She claims in her evidence that the deceased Hosne Ara Lovely and Aklima are respectively her mother and sister and on the night following 08.08.2003 at about 3.00/3.30 o’clock, she and her younger sister Rubi Begum were asleep in the room of their paternal grandmother Sundari Bibi and on hearing an outcry from the place of occurrence room, she woke up from sleep and she along with her younger sister and paternal grandmother rushed to that room and found her mother on the cot in bleeding condition and saw Md. Masud Miah Chowdhury, Md. Manjur Miah Chowdhury, Md. Farid Miah Chowdhury, Ayesha Khanom and Kulsuma Begum there.

The P. W. 7 Halima Begum further claims in her evidence that she came to learn from her brother Masud Miah Chowdhury that the accused Mujib, Sohrab, Ustar and Lechu had entered the place of occurrence room and he told them that he recognized them by means of electric light and the accused Lechu had taken away Aklima by holding her throat and the accused Mujib had dealt dagger blows on the head of Lovely and her paternal uncle Manjur Miah Chowdhury told them that he had recognized the accused through their window by means of electric light burning outside and the accused had also dealt blows on his ‘bendah’ and his paternal uncle Farid Miah Chowdhury told them that he had recognized the accused and subsequently the police and local Chairman came and lifted the dead body of Aklima from their pond.

In her cross-examination, the P. W. 7 Halima Begum denies defence suggestions that she has deposed falsely in the case at the instance of her paternal uncles or that her paternal uncles caused the occurrence.

The P. W. 8 is Md. Monsur Miah Chowdhury. He deposes that he reads in class VI and the deceased Aklima Begum and Hosne Ara Lovely are respectively his younger sister and mother and on the night following 08.08.2003, they slept on the floor of the place of occurrence room and his mother slept on the cot along with his two younger sisters and on that night at about 3.00/3.30 o’clock, he woke up from sleep on hearing an outcry of his brother, paternal uncles and aunts and found Lovely dead in bleeding condition on the cot and then his father Md. Fatik Miah Chowdhury came to the place of occurrence room from the drawing room.

The P. W. 8 Md. Monsur Miah Chowdhury further deposes that his brother Masud Miah Chowdhury told them that he could recognize the accused Mujib, Sohrab, Ustar and Lechu by means of electric light inside the place of occurrence room and the accused Mujib had landed dagger blows on the head of Lovely and the accused Lechu had taken away Aklima by holding her throat and his paternal uncles told them that they could recognize the accused by means of electric light outside the house too and at one stage, they found the dead body of Aklima in floating condition in the pond behind the house.

In his cross-examination, the P. W. 8 Md. Monsur Miah Chowdhury denies a defence suggestion that his brother Masud Miah Chowdhury did not tell him about his recognition of the accused inside the place of occurrence room.
The P. W. 9 is Rubi Begum. She is one of the daughters of Md. Fatik Miah Chowdhury (P.W. 1). She testifies that the deceased Aklima and Lovely are respectively her sister and mother and on the night following 08.08.2003, she along with her sister Halima slept in the room of their paternal grandmother and on that night at about 3.00/3.15 o’clock, she rushed to the place of occurrence room on hearing the crying sound of her mother and found her dead in bleeding condition.

The P. W. 9 Rubi Begum further testifies that his brother Masud Miah Chowdhury told them that he could recognize four accused, namely, Mujib, Sohrab, Ustar and Lechu at the place of occurrence room by means of electric light and that the accused Mujib had landed dagger blows on the person of Lovely and the accused Lechu had taken away her sister Aklima by holding her throat and they found the dead body of Aklima in floating condition in their pond.

The P. W. 9 Rubi Begum also testifies that her paternal uncles Manjur Miah Chowdhury and Farid Miah Chowdhury told them that they could recognize the other accused by means of outside electric light.

In her cross-examination, the P. W. 9 Rubi Begum denies a defence suggestion that she has deposed falsely at the instance of her paternal uncles by concealing the actual occurrence.

The P. W. 10 is Sundari Bibi Chowdhury. She states in her evidence that the deceased Aklima and Lovely are respectively her granddaughter and daughter-in-law (Fatik’s wife) and about two years back on the night following Friday at about 3.00/3.30 o’clock, on hearing an outcry from the place of occurrence room, she rushed there and saw that the wives of her sons, grandsons and granddaughters were crying and found Lovely in injured condition on the cot.

The P. W. 10 Sundari Bibi Chowdhury also states in her evidence that her grandson Masud Miah Chowdhury told them that he had seen the accused Mujib, Ustar, Lechu and Sohrab inside the place of occurrence room and the accused Lechu had taken away Aklima and the accused Mujib had landed dagger blows on the head of Lovely and at that time, Lovely was nine-month-pregnant and the dead body of Aklima was lifted from the pond of their house.

In her cross-examination, the P. W. 10 Sundari Bibi Chowdhury states that out of her five sons, her son Md. Fatik Miah Chowdhury (P.W. 1) has already died.

In her cross-examination, the P. W. 10 Sundari Bibi Chowdhury denies a defence suggestion that she has deposed falsely on being tutored.

The P. W. 11 is Constable No. 610 Md. Abdul Mannan and the P. W. 12 is Constable Md. Ali Hossain. It is their evidence that on 09.08.2003, they were on duty at Biswanath Police Station and on that day at about 6.30/7.00/7.30 A. M., they along with Sub-Inspector Md. Monjurul Murshed went to the place of occurrence house at village Nobhagi and lifted the dead body of Aklima from a pond and Sub-Inspector Md. Monjurul Murshed held inquests on the deceased Lovely and Aklima and they carried the dead bodies to Osmany Medical College Hospital for post-mortem examinations and handed over the same to the doctor concerned.

It is also the evidence of the P. W. 12 Constable Md. Ali Hossain that after autopsies, the Investigating Officer seized the wearing-apparels of Lovely and Aklima as per seizure-list (Exhibit-6) and he signed it as a witness.

The P. W. 13 is Md. Rajab Ali. He deposes that he is the incumbent Chairman of Khajanshi Union Parishad No. 2 and he has been permanently residing at the Thana Headquarters of Biswanath and in the early hours of 09.08.2003 (6.00 A. M.), the informant Md. Fatik Miah Chowdhury told him over telephone crying that his pregnant wife and infant daughter had been killed at his house and requested him to convey this message to the Police Station and because of non-availability of the Officer-in-Charge of the Police Station at that point of time, he (P. W. 13) contacted the Second Officer of the Police Station, namely, Sub-Inspector Asduzzaman and apprised him of the occurrence and thereafter he (P.W. 13) went to the place of occurrence house following the police van and found the pregnant wife of Fatik Miah Chowdhury dead on the cot in bleeding condition and the dead body of the infant daughter, aged about 18/19 months, floating in a pond and the police lifted the dead body from the pond in presence of hundreds of people and the informant Md. Fatik Miah Chowdhury hugged him (P. W. 13) and told him sobbingly that he would disclose the names of the accused to him (P. W. 13) and then he consoled Fatik Miah Chowdhury and told him to disclose the names of the accused to the police and accordingly the informant disclosed the names of the accused to the police in his presence, but now he can not remember their names.

At this stage, the P. W. 13 Md. Rajab Ali is declared hostile by the prosecution and the prosecution cross-examines him with the leave of the Court.

In his cross-examination by the prosecution, the P.W. 13 Md. Rajab Ali states that the informant Md. Fatik Miah Chowdhury (since deceased) was a member of Biswanath Thana Law and Order Committee and a freedom-fighter and he (P.W. 13) requested the informant to amicably settle the disputes between Thakur Ali and his sons Amir Ali and Zamir Ali and accordingly the informant professedly took the necessary initiative in that regard.

In his cross-examination by the prosecution, the P.W. 13 Md. Rajab Ali also states:

“ইহা সত্য যে, আমি ঘটনাসহল বাড়ীতে যাওয়ার পরে ফটিক চৌধুরী ও তাহার ভাইদের জিজ্ঞাসাবাদে জানিতে পারিয়াছি যে, আসামী মুজিব, সোহরাব, লেচু ফটিক চৌধুরীর বসতঘরের পিছনে রান্না ঘরের বেড়া ভাংগিয়া ঘরে ঢুকিয়া ফটিক চৌধুরীকে না পাইয়া তাহার স্ত্রী ও শিশু কন্যাকে খুন করে। আমি ইহা শোনার পর ফটিক চৌধুরীর রান্না ঘরের বেড়া ভাংগা দেখিতে পাই।”

In his cross-examination by the prosecution, the P.W. 13 Md. Rajab Ali denies a suggestion that being influenced by some accused and in case of his necessity for soliciting votes for the post of Chairman, he has withheld the names of the remaining accused.

In his cross-examination by the defence, the P.W. 13 Md. Rajab Ali states:

“বাদী ফটিক চৌধুরী যখন আমাকে ফোনে ঘঢ~না জানায়, তখন তিনি আমাকে কোন আসামীর নাম বলে নাই ও আমার ফোনে ৩/৪ মিনিট আলাপ হয়। ঐ আলাপের সময় ঘটনার বর্ণনা তিনি আমাকে দেন নাই।”

In his cross-examination by the defence, the P.W.13 Md. Rajab Ali also states that when he reached the place of occurrence at about 7.00 A. M., he found about 200/300 people of the locality there and Md. Fatik Miah Chowdhury disclosed the names of the accused to Sub-Inspector Asaduzzaman in a room and Asaduzzaman jotted down the names of the accused in the form of an ejahar as per the dictation of Fatik Miah Chowdhury and thereafter inquests were held on the deceased Lovely and Aklima.

The P. W. 14 is Md. Monwar Ali Chowdhury. As per his testimony, he is a witness to the inquest held on the dead body of Aklima on 09.08.2003 at about 9.00/9.15 A. M. and he signed the inquest-report (Exhibit-2) as a witness.
The P. W. 15 is Md. Mojibur Rahman. He states in his evidence that on 14.08.2003, he was on duty as Magistrate, 1st Class, in Sylhet Collectorate, Sylhet and on that date, three accused, namely, Abdul Matin, Abul Hossain and Aftab Ali were produced before him and out of them, the accused Abdul Matin and Abul Hossain gave confessional statements to him voluntarily and he recorded the same.

In his cross-examination, the P. W. 15 Md. Mojibur Rahman states that Sub-Inspector Md. Monjurul Murshed produced all the three accused to him and he put questions to the confessing accused Abdul Matin and Abul Hossain to the effect that whether they were making confessions under duress or threat or intimidation or coercion and at the time of recording of the confessions, no police personnel were present and the confessions were read out to the confessing accused and on admitting the contents thereof to be true, they signed the same.

In his cross-examination, the P. W. 15 Md. Mojibur Rahman denies defence suggestions that the accused Abul Hossain made a complaint to him that the police had broken his right jaws as a result of torture and or that the accused Abul Hossain had showed the signs of torture to him.

The P. W. 16 is Shoab Ahmad Khan. The sum and substance of his deposition is that on 08.11.2003, he was on duty as Magistrate, 1st Class, in Sylhet Collectorate, Sylhet and on that day, Sub-Inspector Md. Monjurul Murshed produced one witness, namely, Thakur Ali before him for recording of his statement under Section 164 of the Code of Criminal Procedure and he accordingly recorded the same.

The P. W. 17 is Thakur Ali. According to his evidence, he gave a statement to the Magistrate concerned on 08.11.2003 about the occurrence.

The P. W. 18 Md. Aklas Hossain is a tendered witness.

The P. W. 19 is Md. Shafique Miah. The sum and substance of his deposition that he is a witness to the inquest held on the dead bodies of Lovely and Aklima and he signed the inquest-reports as a witness.

The P. W. 20 is Dr. M. A. Shahid. He states in his evidence that on 09.08.2003, he was on duty as Lecturer in the Department of Forensic Medicine in Sylhet M.A.G. Medical College and on that day, Constable Ali Hossain and Constable No. 610 Md. Abdul Mannan identified the dead body of Hosne Ara Lovely to him and he (P.W. 20) held an autopsy thereon and found the following injuries:
“One incised wound on the right side of the head measuring 2˝ X .5˝ X bone depth.
One incised wound on the right side of the forehead with clotted blood measuring 2.5˝ X .5˝ X bone depth.
Clotted blood in between scalp and skull bone. Right parietal bone and right frontal bone were fractured. Lungs were congested. On dissection of the uterus, one male matured dead foetus was found.”
 
The P. W. 20 Dr. M. A. Shahid also states in his evidence that in his opinion, the death of Lovely was due to haemorrhagic shock as a result of the above-mentioned injuries caused by sharp-cutting weapons which were ante-mortem and homicidal in nature.
 
The P. W. 20 Dr. M. A. Shahid further states in his evidence that on that day, as per identification of those two police constables, he also held an autopsy on the deceased Aklima Begum and found the following injuries thereon:
“Multiple bruises on the neck-both right and left side of the neck with scratch abrasions on the face and neck with variable sizes and shapes.
On dissection of the neck, bruises show dark clotted blood with congested tissues on the surrounding area. The lungs were congested.”
 
The P. W. 20 Dr. M. A. Shahid also states in his evidence that in his opinion, the death of Aklima Begum was due to asphyxia as  a result of throttling which was ante-mortem and homicidal in nature.
 
In his cross-examination, the P. W. 20 Dr. M. A. Shahid states that because of the wounds sustained by the victim Lovely, she might have died instantaneously.
 
The P. W. 21 is Md. Monjurul Murshed. He deposes that on 09.08.2003, he was on duty as Sub-Inspector at Biswanath Police Station, Sylhet and on that day, in the absence of the Officer-in-Charge of the Police Station, Sub-Inspector Asaduzzaman received a telephonic message that the wife and one daughter of Md. Fatik Miah Chowdhury had been killed at his house at village Nobhagi and on receipt of that message, Sub-Inspector Asaduzzaman recorded G. D. Entry No. 297 dated 09.08.2003 and thereafter under the leadership of Sub-Inspector Asaduzzaman, he (P.W. 21) along with the accompanying force rushed to the place of occurrence and found Lovely dead in bleeding condition on the cot and the dead body of infant Aklima was found floating in the pond behind the house.

The P. W. 21 Md. Monjurul Murshed also deposes that he apprised his higher authority of the occurrence and lifted the dead body of Aklima from the pond and held inquests on the deceased Lovely and Aklima in presence of witnesses as per inquest-reports and he signed the same as their maker and sent both the dead bodies to Osmany Medical College Hospital for post-mortem examinations.

The P. W. 21 Md. Monjurul Murshed next deposes that he asked Md. Fatik Miah Chowdhury (P. W. 1), Md. Manjur Miah Chowdhury (P. W. 4) and Md. Masud Miah Chowdhury (P. W. 2) about the occurrence and Md. Masud Miah Chowdhury and Md. Manjur Miah Chowdhury disclosed the names of the accused Mujib, Sohrab, Bari, Ustar Ali, Shamshad Ali, Selim, Lechu, Abul Hossain, Aftab Ali, Abdul Matin, Amir Hossain and Amir Ali who caused the occurrence and he (P.W. 21) recorded the same in his diary.

The P. W. 21 Md. Monjurul Murshed further deposes that on being questioned, Md. Masud Miah Chowdhury and Md. Manjur Miah Chowdhury told him that they could recognize the accused by means of electric light and Md. Fatik Miah Chowdhury initiated Biswanath Police Station Case No. 07 dated 09.08.2003 on the basis of a written ejahar and Sub-Inspector Asaduzzaman has already died.

The P. W. 21 Md. Monjurul Murshed next deposes that the case was endorsed to him for investigation and accordingly he took up the investigation of the same and during investigation, he visited the place of occurrence, made a sketch-map (Exhibit-15) thereof along with a separate index (Exhibit-16) and seized alamats from the place of occurrence as per seizure-list dated 13.08.2003 (Exhibit-2).

The P. W. 21 Md. Monjurul Murshed also deposes that on 09.11.2003, he seized a piece of brownish cloth and a piece of white cloth which were handed over to him after autopsies as per seizure-list (Exhibit-6) and he signed the same as the seizing officer.

The P. W. 21 Md. Monjurul Murshed next deposes that during investigation, he examined witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure and arrested the accused Abul Hossain, Aftab Ali and Abdul Matin, took them on remand and interrogated them and subsequently produced them before the Court for recording of their confessional statements and the accused Abul Hossain and Abdul Matin gave confessional statements, but the accused Aftab Ali declined to make any confessional statement.

The P. W. 21 Md. Monjurul Murshed further deposes:

“মামলাটি তদন্তাধীন অবসহায় উক্ত জামাল আহম্মদ আদালতে একটি দরখাস্ত মামলা দায়ের করিলে আমি যেহেতু অত্র মামলার ঘটনা নিয়া পূর্বেই নিয়মিত মামলা রুজু হইয়াছে সেহেতু দরখাস্ত মোকদ্দমাটি অত্র মামলার পাশাপাশি তদন্তের অনুমতির জন্য আদালতে আবেদন করি এবং আদালত আবেদন মঞ্জুর করিলে আমি দরখাস্ত মোকদ্দমাটি পুংখানুপুংখ ভাবে তদন্ত করি।”

The P. W. 21 Md. Monjurul Murshed next deposes that the complainant of that Petition Case, namely, Jamal Ahmed along with witnesses came to South Surma Police Station in response to his message and questioned them separately and the complainant Jamal Ahmed mentioned that his late sister Hosne Ara Lovely had an account with Sonali Bank of Kamal Bazar Branch and her two brothers-in-law (husband’s brothers) used to send money to that account from abroad and for the purpose of grabbing the money from that account, his sister had been killed and as such, he (P.W. 21) investigated this matter and it transpired that no bank account stood in the name of Hosne Ara Lovely; rather a bank account stood in the name of the mother of Md. Fatik Miah Chowdhury, namely, Sundari Bibi Chowdhury and her two expatriate sons used to send money to that account and the Manager of the Sonali Bank, Kamal Bazar Branch gave a certificate (Exhibit-18) to that effect.

The P. W. 21 Md. Monjurul Murshed also deposes that having found a prima facie case, he submitted the charge-sheet no. 86 dated 24.11.2003 against the accused under Sections 302/34 of the Penal Code.

In his cross-examination, the P.W. 21 Md. Monjurul Murshed states that the occurrence took place on 09.08.2003 at about 3.00 A. M. and the case was registered on 09.08.2003 at 23.30 hours and the G.D. Entry No. 297 dated 09.08.2003 was recorded at 6.10 A. M. and pursuant to that G.D. Entry, they rushed to the place of occurrence and the G. D. Entry contained the first information regarding the occurrence.

In his cross-examination, the P. W. 21 Md. Monjurul Murshed also states:

“এস, আই, আসাদুজ্জামান কয়টার সময় ঘটনাসহল ত্যাগ করে তাহা আমি ডায়েরীতে নোট করি নাই। আমরা ঘটনাসহলে গিয়া মাসুদ চৌধুরী বা ফটিক চৌধুরীর নিকট হইতে কোন মৌখিক বা লিখিত এজাহার নেই নাই।”

In his cross-examination, the P. W. 21 Md. Monjurul Murshed denies a defence suggestion that he extorted the confessional statements from the accused concerned by torturing them while on police remand.

In his cross-examination, the P. W. 21 Md. Monjurul Murshed admits that he did not seize the electric bulb from the place of occurrence.

The P. W. 22 is Jalal Ahmed. He is a formal witness and as Officer-in-Charge of Malkhana, he received 10(ten) alamats of Biswanath Police Station Case No. 07(8)2003 corresponding to G. R. Case No. 87 of 2003.

The P. W. 23 is Mobasher Ali Mirza. He deposes that he has been posted as Sub-Inspector at Biswanath Police Station and as per order of the Court, he appeared before the Court with the G. D. Entry No. 297 dated 09.08.2003 and it appears from the G. D. Entry that on 09.08.2003, the Chairman of Khajanshi Union Parishad No. 2 Md. Rajab Ali sent a message over telephone that the wife and an infant of Md. Fatik Miah Chowdhury had been killed at his house at village Nobhagi and on receipt of that telephonic message, Sub-Inspector Asaduzzaman recorded the G. D. Entry at 6.10 A. M. and pursuant to the G.D. Entry, they started for the place of occurrence and Sub-Inspector Asaduzzaman is now dead.

In his cross-examination, the P. W. 23 Mobasher Ali Mirza admits that there is no mention of the names of the accused in the G. D. Entry.

Admittedly, the P. W. 1 Md. Fatik Miah Chowdhury was partly examined-in-chief and during the pendency of the case in the lower Court, he died and because of his death, his further examination-in-chief and cross-examination could not be completed. Now a pertinent question arises: what will be the evidentiary value of the statements made by Md. Fatik Miah Chowdhury in his part examination-in-chief? In this context, Mr. S. M. Shahjahan has relied upon the decision in the case of Maharaja of Kolhapur Vs. S. Sundaram Ayyar and others, AIR 1925 Madras 497. In that decision, it has been held that where a witness dies after examination-in-chief and before cross-examination, the evidence is admissible; but the weight to be attached to such evidence should depend upon the circumstances of each case and though in some cases, the Court may act upon it if there is other evidence on record, its probative value may be very small and may even be disregarded. We are in complete agreement with the above principle enunciated by Madras High Court in the reported decision. Keeping this principle in view, we hold that the probative value of the statements made by the P. W. 1 Md. Fatik Miah Chowdhury in his part examination-in-chief may be small depending upon the facts and circumstances of the present case.

It transpires that the P. W. 13 Md. Rajab Ali has been declared hostile by the prosecution in the midst of his examination-in-chief. So the P. W. 13 Md. Rajab Ali is a hostile witness. In this connection, the decision in the case of Siddique Munshi Vs. The State reported in 44 DLR (AD) 169 may be adverted to. In that decision, it was held, inter alia, in paragraph 9:

“9. A witness is not necessarily hostile if he reveals the truth. Established practice, now forming a rule of law, regarding the evidence of a hostile witness is that the whole of his evidence so far as it affects both the parties, favourably or unfavourably, must be considered and the Court which gets the opportunity to observe his demeanour is at liberty to make assessment of the evidence. If corroboration from other sources is available to the evidence of a hostile witness, there is no reason why his evidence should be rejected outright. If the evidence of the hostile witness fits in with the attending circumstances, then it may be accepted and considered along with other evidence.”

What we are driving at in this regard boils down to this: if the evidence of the P. W. 13 Md. Rajab Ali fits in with the attending circumstances of the case, then it may be taken into account and accepted along with other evidence on record. In other words, simply because the P. W. 13 Md. Rajab Ali is a hostile witness, his evidence can not be rejected out of hand.

Out of 23 (twenty-three) prosecution witnesses, the P. W. 2 Md. Masud Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 13 Md. Rajab Ali, P. W. 20 Dr. M. A. Shahid and P. W. 21 Md. Monjurul Murshed appear to be vital witnesses in the facts and circumstances of the case. Out of them, the star prosecution witness is the P. W. 2 Md. Masud Miah Chowdhury. Professedly, he is an eye-witness to the occurrence, though he is an interested witness. As a matter of fact, the P. W. 2 Md. Masud Miah Chowdhury, P. W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum and P. W. 10 Sundari Bibi Chowdhury are all inter-related and interested witnesses in this case. Now a million-dollar question arises: can the Court reject the evidence of those partisan and interested witnesses outright on the ground of their interestedness and partisanship. The answer is obviously in the negative. In this connection, the decision in the case of Nowabul Alam and others Vs. The State reported in 15 BLD (AD) 54 adverted to by Mr. S. M. Shahjahan may be called in aid. In that decision, it was held in paragraph 17:

“17. The principle that is to be followed is that the evidence of persons falling in the category of interested, inter-related and partisan witnesses, must be closely and critically scrutinized. They should not be accepted on their face value. Their evidence can not be rejected outright simply because they are interested witnesses for that will result in a failure of justice, but their evidence is liable to be scrutinized with more care and caution than is necessary in the case of disinterested and unrelated witnesses. An interested witness is one who has a motive for falsely implicating an accused person and that is the reason why his evidence is initially suspect. His evidence has to cross the hurdle of critical appreciation. As his evidence can not be thrown out mechanically because of his interestedness, so his evidence can not be accepted mechanically without a critical examination. As Hamoodur Rahman, J (as his Lordship then was) observed in the case of Ali Ahmed Vs. State (14 DLR (SC) 81):

“Prudence, of course, requires that the evidence of an interested witness should be scrutinized with care and conviction should not be based upon such evidence alone unless the Court can place implicit reliance thereon.”

In the decision in the case of Masalti Vs. State of Uttar Pradesh, AIR 1965 (SC) 202, the Indian Supreme Court observed:

“There is no doubt that when a Criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence, whether or not the evidence strikes the Court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, Criminal Courts have to deal with the evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would inevitably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan can not be accepted as correct.”

The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than an ordinary rule of appreciation of evidence. The Supreme Court of Pakistan spelt out the rule in the case of Nazir Vs. The State, 14 DLR (SC) 159 as follows:

“……………………………………………we had not intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it can not be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty, the Court will in the case of an ordinary interested witness look for some circumstances that give sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. That is what is meant by saying that the statement of an interested witness ordinarily needs corroboration.”

If on consideration of the evidence and the circumstances, it is seen that the witnesses are related to one another and to the deceased also, in such a situation what the Court should do came up for consideration in the case of Abdul Karim Vs. State and another reported in 1981 BLD (AD) 200 wherein it was observed:

“Relationship by itself can not be a ground for rejecting testimony of a witness unless it is shown that the witness was biased and resorted to falsehood.”

The decisions in the cases of Mohammad Ali alias Shanu Vs. The State, 13 MLR (AD) 121 and Siraj Mal and others Vs. The State, 45 DLR (HCD) 688 are also in the same vein.
In the case of the State Vs. Ful Mia reported in 5 BLC (AD) 41 referred to by the Deputy Attorney-General Mr. Md. Khurshedul Alam, it has been held in paragraph 16 that interested evidence by itself can not be a ground to discard the evidence if one is found to be a truthful witness and telling the truth.

In the case of the State of Rajasthan Vs. Smt. Kalki and another reported in AIR 1981 (SC) 1390, the Indian Supreme Court held in paragraph 6:

“6. In the depositions of witnesses, there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.”

Keeping the above principle in view, we are to scan the testimony of the star prosecution witness Md. Masud Miah Chowdhury (P. W. 2) and other interested witnesses.
It transpires from the testimony of the P. W. 2 Md. Masud Miah Chowdhury that he has narrated the occurrence in a vivid, graphic and pictorial manner. In other words, he has given a blow-by-blow account of the occurrence leading to the death of Lovely and Aklima. According to his deposition, the accused Mujib, Ustar, Sohrab and Lechu appeared on the scene of occurrence at dead of night and the accused Mujib wanted to know from Lovely as to the whereabouts of her husband, namely, Md. Fatik Miah Chowdhury (since deceased) and in case of her repeated refusal, the accused Mujib dealt two dagger blows on the head of Lovely resulting in her instantaneous death on the cot at the place of occurrence room.

It has been contended on the side of the defence that the accused have been falsely implicated in the case out of previous enmity and bad blood. But the cause of enmity and bad blood has not been spelt out by the defence. It is not clear from the evidence and materials on record as to why the informant-party and the accused-party are at odds with each other. In other words, we are in the dark about the bone of contention between the parties. However, it is well-settled that enmity cuts both ways, that is to say, because of previous enmity, the accused might have committed the offence on the one hand and again because of previous enmity, the accused might have been falsely implicated in the case on the other hand. In fact, enmity is like a double-edged sword. This being the scenario, only a critical appreciation of the evidence of the P. W. 2 Md. Masud Miah Chowdhury will reveal the stark reality.

It seems that the P. W. 2 Md. Masud Miah Chowdhury has remained unshaken in his cross-examination. On a critical analysis of his ocular evidence, we do not find any vital omission, inconsistency or contradiction on any material aspect concerning the occurrence between his examination-in-chief and cross-examination. In such a landscape, we must say that his rock-like evidence puts the prosecution case on a definite foundation and to discredit or to dislodge him, the reasonable doubt that must be created in our mind must be based on the evidence on record itself and not on mere inferences, surmises, speculations and conjectures.

It transpires that the ocular evidence of the P. W. 2 Md. Masud Miah Chowdhury has a natural flow and the same does not at all appear to be laboured in character. He has dourly stood his ground. His evidence, so to say, is impregnable on all points. In his expansive evidence, we do not come across any marks of blemish or falsehood. In such a posture of things, we opine that the ocular evidence of the P. W. 2 Md. Masud Miah Chowdhury excludes the possibility of any inference of fabrication, concoction, tutoring and rehearsal.

Be that as it may, it is in the evidence of the P. W. 2 Md. Masud Miah Chowdhury that he showed the electric bulb to the Investigating Officer by the light of which he had recognized the accused Mujib, Sohrab, Ustar and Lechu inside the occurrence room and the Investigating Officer seized it; but in fact, no bulb was seized by the Investigating Officer during the investigation of the case. Barring this single statement in the evidence of the P. W. 2 Md. Masud Miah Chowdhury, the evidence of the P. W. 2 inspires confidence in us. Although the above statement does not accord with the other evidence on record, that statement may be ignored as a normal discrepancy of an eye-witness as found by the Indian Supreme Court in the case of the State of Rajasthan Vs. Smt. Kalki and another reported in AIR 1981 (SC) 1390.

We have put the direct evidence of the P.W. 2 Md. Masud Miah Chowdhury to the closest scrutiny as is required by law and found the same quite trustworthy, unblemished, unimpeachable, impeccable and invincible. In his expansive and detailed evidence, the substantive part touching upon the factum of occurrence and its manner, method and sequence have not been shaken, deviated from or rendered doubtful in his cross-examination. The defence has failed to make any headway in this respect.

As the occurrence took place at dead of night, there was virtually no scope to eye-witness the occurrence by any independent, disinterested and non-partisan witness. It was rather impracticable on the part of such a witness to see the occurrence inside the bed-room (place of occurrence room) of the P. W. 1 Md. Fatik Miah Chowdhury. The evidence on record shows that the police and villagers arrived at the place of occurrence house at about 7.00/7.30 A. M. whereas the occurrence took place at about 3.00/3.30 A.M. on 09.08.2003. During this interregnum, no people other than the inmates of the house were available at the place of occurrence house. On the arrival of the P. W. 13 Md. Rajab Ali and others at the place of occurrence house, the informant wanted to disclose the names of the accused to the P. W. 13 Md. Rajab Ali; but he wanted the informant to disclose the same to the police and accordingly, the informant Md. Fatik Miah Chowdhury disclosed the names of the accused to Sub-Inspector Asaduzzaman (since deceased). In this regard, the relevant part of the cross-examination of the P. W. 13 Md. Rajab Ali may be adverted to−

“ঐ দারোগার নাম আসাদুজ্জামান। ফটিক চৌধুরী উপস্থিত লোকদের সরাইয়া একটি রুমের মধ্যে দারোগার কাছে আসামীদের নাম বলে। তখন দারোগা সাহেব আসামীদের নাম লিখিয়াছেন ঐ লেখাটি এজাহার আকারে দারোগা সাহেব বাদীর কথিত মতে লেখেন। এজাহারের পর দারোগা লাশের সুরতহাল করে।”

Undeniably, the P. W. 1 Md. Fatik Miah Chowdhury, P. W. 2 Md. Masud Miah Chowdhury, P.W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum and P. W. 10 Sundari Bibi Chowdhury are all inmates of the place of occurrence house. It appears from the evidence of the P. W. 2 Md. Masud Miah Chowdhury that immediately after the occurrence at the place of occurrence room, the other inmates, that is to say, the P.W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum, P. W. 10 Sundari Bibi Chowdhury and P. W. 1 Md. Fatik Miah Chowdhury rushed to the place of occurrence room and the P. W. 2 Md. Masud Miah Chowdhury narrated the occurrence to them and the P.Ws 3 to 10 in turn also corroborated the P. W. 2 Md. Masud Miah Chowdhury in this respect, though they are interested witnesses. The taking away of the infant Aklima by the accused Lechu Meah from the place of occurrence room by holding her throat at the relevant time has been corroborated by the evidence of the P. W. 4 Md. Manjur Miah Chowdhury and P. W. 5 Kulsuma Begum. In other words, these two witnesses, namely, the P. W. 4 Md. Manjur Miah Chowdhury and P. W. 5 Kulsuma Begum eye-witnessed that part of the occurrence which related to the taking away of Aklima by the accused Lechu Meah by holding her throat at the material time. We do not find any marks of falsehood in the evidence of the P. W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum and P. W. 10 Sundari Bibi Chowdhury. They have stood the test of cross-examination remarkably well. We hardly find any inconsistency or discrepancy or contradiction between their examination-in-chief and cross-examination. Against this backdrop, we are led to hold that the evidence of the P. W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum and P. W. 10 Sundari Bibi Chowdhury is worthy of credence.

The ocular evidence of the P. W. 2 Md. Masud Miah Chowdhury, it transpires, stands corroborated by the evidence of the P. W. 20 Dr. M. A. Shahid and attending circumstances of the case.

Besides, admittedly the accused Lechu Meah was all along an absconder during the trial of the case. He had been on the run for about four years till his surrender before the Court below on 03.05.2007 after pronouncement of the impugned judgment. This long abscondence of the accused Lechu Meah without any explanation whatsoever is a relevant fact under Section 8 of the Evidence Act and favours the prosecution pointing a finger at his guilt, though abscondence by itself is not conclusive of one’s guilt.

It appears that Mr. S. M. Shahjahan has rightly contended that the G. D. Entry No. 297 dated 09.08.2003 lodged with Biswanath Police Station on receipt of a telephonic message about the occurrence from the P. W. 13 Md. Rajab Ali should be construed as an ejahar being the first information in point of time with regard to the commission of the offence and the so-called ejahar lodged by the P. W. 1 Md. Fatik Miah Chowdhury was illegally admitted in evidence on the side of the prosecution. In this context, Mr. S. M. Shahjahan has relied upon the decisions in the cases of The State Vs. Anwar Hossain and others, 14 BLC (HCD) 440 and Muslimuddin and others Vs. The State, 38 DLR (AD) 311.

In the decision reported in 38 DLR (AD) 311, our Appellate Division has held that in the early morning “somebody” was sent to the Police Station to give an information about this gruesome murder. In point of time that information carried to the police “by somebody” is the First Information Report within the meaning of Section 154 of the Code of Criminal Procedure and all subsequent information falls within the purview of Section 161 of the said Code.

In the decision reported in 14 BLC (HCD) 440, it was held, amongst others, in paragraph 70:

“70. The P.W. 18, the Investigating Officer, testified that he went to the place of occurrence at 7.00 A. M. on the basis of a G.D. Entry made at 6.30 A. M. in the Police Station. The inquest of the dead body of the deceased was made at 7.45 A. M. on the basis of G.D. Entry No. 930 dated 14.01.2002. Inquest was made in presence of the P.W. 1 who was one of the witnesses of inquest-report. The P. W. 1 after making inquest of the dead body of the deceased went to the Police Station and lodged FIR at 10.05 A.M. Thus it appears that investigation of the case was started before lodging the FIR. In fact, investigation was started on the basis of the G. D. Entry. Police after getting the information that the deceased was killed entered that information in the G. D. and then came to the place of occurrence and started investigation. Thus, according to law, that G. D. Entry No. 930 dated 14.01.2002 is the FIR in the present case.”

Reverting to the case in hand, it is admitted that the G. D. Entry No. 297 dated 09.08.2003 was lodged with Biswanath Police Station at the instance of the P. W. 13 Md. Rajab Ali at 6.10 A. M. and at about 7.00/7.30 A. M., the police personnel under the leadership of Sub-Inspector Asaduzzaman went to the place of occurrence house and the P. W. 21 Sub-Inspector Md. Monjurul Murshed held inquests on the deceased Lovely and Aklima pursuant to that G. D. Entry. In view of the decisions reported in 38 DLR (AD) 311 and 14 BLC (HCD) 440, we are led to hold that in the present case before us, investigation was started on the basis of the G. D. Entry No. 297 dated 09.08.2003 and that G.D. Entry is the ejahar of the case for all practical purposes and the subsequent so-called formal ejahar lodged by the P. W. 1 Md. Fatik Miah Chowdhury with Biswanath Police Station may be construed as a statement under Section 161 of the Code of Criminal Procedure. However, the non-treating of the G.D. Entry No. 297 dated 09.08.2003 as the ejahar of the case by the lower Court is curable by Section 537 of the Code of Criminal Procedure and will not affect the merit of the case.

Now let us address the question of belated disclosure of the names of the accused to the police as raised by Mr. S. M. Shahjahan. The occurrence took place on 09.08.2003 at about 3.00/3.30 A. M. and the informant lost his wife and their infant daughter Aklima. So it is quite natural that having lost his nine-month-pregnant wife Lovely and their infant daughter Aklima, the P. W. 1 Md. Fatik Miah Chowdhury was traumatized, perplexed and shell-shocked and was in a fix as to what to do. Anyway, at a subsequent stage, he made a telephone call to the Chairman Md. Rajab Ali (P.W. 13) who in turn sent the message of the occurrence to the Second Officer of Biswanath Police Station, namely, Sub-Inspector Asaduzzaman. On the basis of that message about the occurrence, the G. D. Entry No. 297 dated 09.08.2003 was recorded at 6.10 A. M. In the facts and circumstances of the case, it seems to us that the P. W. 1 Md. Fatik Miah Chowdhury being under the spell of bewilderment and shock wave failed to communicate the names of the accused to the P. W. 13 Md. Rajab Ali at the time of the telephonic conversation. But as soon as the police-party led by Sub-Inspector Asaduzzaman arrived at the place of occurrence at about 7.00/7.30 A. M. pursuant to the G. D. Entry No. 297 dated 09.08.2003 the P. W. 1 Md. Fatik Miah Chowdhury wanted to disclose the names of the accused to the P. W. 13 Md. Rajab Ali; but the P. W. 13 instructed the P. W. 1 to disclose the names of the accused to the police and accordingly, the P. W. 1 disclosed the names of the accused to Sub-Inspector Asaduzzaman in a room of the place of occurrence house and Asaduzzaman wrote down the names of the accused on a sheet of paper in the form of an ejahar as is evident from the cross-examination of the P. W. 13 Md. Rajab Ali.

It is also in the cross-examination of the P. W. 13 Md. Rajab Ali that inquests were held on the deceased Lovely and Aklima after the disclosure of the names of the accused to Sub-Inspector Asaduzzaman by the P. W. 1 Md. Fatik Miah Chowdhury. But in his cross-examination, the P. W. 21 Sub-Inspector Md. Monjurul Murshed has stated that they did not take any written or oral ejahar either from Md. Fatik Miah Chowdhury (P. W. 1) or from Md. Masud Miah Chowdhury (P. W. 2) on their arrival at the place of occurrence. In this perspective, it may be pointed out that Sub-Inspector Asaduzzaman left the place of occurrence prior to the departure of the police-party as is manifest from the cross-examination of the P. W. 21 Md. Monjurul Murshed. From the tone and tenor of the cross-examination of the P. W. 21 Md. Monjurul Murshed, it appears to us that for some reason or other, Sub-Inspector Asaduzzaman left the place of occurrence leaving behind Sub-Inspector Md. Monjurul Murshed (P. W. 21) and other police personnel there. As already observed, the P. W. 1 Md. Fatik Miah Chowdhury disclosed the names of the accused to Sub-Inspector Asaduzzaman in a room of the place of occurrence house in confidence. Against this backdrop, the P. W. 21 Md. Monjurul Murshed might not be aware of the disclosure of the names of the accused to Sub-Inspector Asaduzzaman by the P. W. 1 Md. Fatik Miah Chowdhury and probably on that count, the names of the accused did not appear in the inquest-reports of Lovely and Aklima. In this regard, the role of Sub-Inspector Asaduzzaman appears to be cryptic and mysterious.

It does not stand to reason and logic as to why Sub-Inspector Azaduzzaman failed to register a case on the basis of the plain-paper ejahar lodged with him by the P. W. 1 Md. Fatik Miah Chowdhury at the spot. Since Sub-Inspector Asaduzzaman died during the pendency of the case in the lower Court, no explanation could be obtained from him in this respect. Indisputably the P. W. 1 Md. Fatik Miah Chowdhury did not disclose the names of the accused to the P. W. 13 Md. Rajab Ali at the time of the telephonic conversation. As a natural consequence thereto, the names of the accused did not find place in the G. D. Entry No. 297 dated 09.08.2003. There was, no doubt, some delay in the matter of disclosure of the names of the accused, but the delay, in the facts and circumstances of the case, will not render the prosecution case doubtful in any view of the matter. In this connection, the reference to the decisions in the cases of Abu Taher Chowdhury and others….Vs…The State, 11 BLD (AD) 2 and Nowabul Alam and others Vs. The State, 15 BLD (AD) 54 will be of no avail to Mr. S. M. Shahjahan.

As to the contention of Mr. S. M. Shahjahan that the manner of entry of the accused Mujib and Lechu, amongst others, into the place of occurrence room at the material time has not been proved at all by the prosecution, we find from the evidence on record that the accused Mujib, Lechu, Sohrab and Ustar entered the place of occurrence room at the relevant time by breaking open the fence of the kitchen of the P.W. 1 Fatik Miah Chowdhury (informant). But how did they enter the place of occurrence room through the kitchen when admittedly the said room was closed from inside? This question needs to be answered. It is within the especial knowledge of the defence as regards how they entered the place of occurrence room from the kitchen. So the prosecution can not prove this factum. Anyway, as we see it, the accused Mujib, Lechu, Sohrab and Ustar entered the place of occurrence room at dead of night (on 09.08.2003 at 3.00/3.30 A. M.) by somehow opening its door through the kitchen. Given this scenario, we are not impressed by the contention of Mr. S. M. Shahjahan.

As regards the contention of Mr. S. M. Shahajan that it is not understandable as to why the accused Mujib and Lechu would kill Lovely and Aklima at the place of occurrence room instead of their target, namely, Fatik Miah Chowdhury (P. W. 1), we feel tempted to advert to the decision in the case of Lal Khan...Vs…Muhammad Sadiq and others reported in 20 DLR (SC) 306. In that decision, it has been clearly, categorically and unequivocally observed that what moves an individual to commit the crime being within his exclusive knowledge, there is no onus on the prosecution to lead positive evidence of motive in a given case and a charge established by reliable evidence will not fail if there be no ostensible motive on the part of the accused to commit the crime. This being the legal position, the contention of Mr. S. M. Shahjahan stands jettisoned.

The accused Abdul Matin and Abul Hossain are confessing accused. As Abdul Matin is not an appellant before us, we will not discuss his confessional statement in detail. But as the accused Abul Hossain is an appellant before us, the voluntariness and truth or otherwise of his confessional statement will be gone into.

There are certain criteria to assess the judicial confession of an accused. In the case of Habibur Rahman @ Habib….Vs…The State reported in 8 BLD (HCD) 210, it was observed in paragraph 15:

“15………………………………………….…………………………………………………………………………………………. ….
Before a Court acts upon a confessional statement, it has to affirmatively satisfy that the statement is voluntary and true. In this regard, the judicial authorities always insist on the meticulous observance of all necessary formalities and precautions provided in Section 164 (3) of the Code of Criminal Procedure with minute particularity so as to ensure that the confession is absolutely free from the slightest tinge or taint of extraneous influence. ‘It is a settled principle of law’ as pointed out by a Division Bench of this Court in the case of Zaheda Bewa and another Vs. The State reported in 1985 BLD 9 ‘that the requirement of adherence to the provisions of Section 164 (3) of the Code of Criminal Procedure is not a mere matter of form, but of substance. Section 164 (3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed Vs. The King Emperor, AIR 1936 P.C 253’. Before recording a confession, a Magistrate is bound to make a real and substantial enquiry as to the voluntariness of the confession. In so doing, he must put questions to the accused with a view to finding out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by some body or whether it has been caused by any inducement, threat or promise. The questions put by the Magistrate and the answers given by the accused furnish sufficient data for coming to the conclusion whether the statement was voluntary or not.”

In the decision in the case of Abul Hossain and others Vs. The State reported in 13 BLD (HCD) 311, it has been held, inter alia, in paragraph 7 that Sub-Section (3) of Section 164 speaks of the manner as to how the confession of an accused is to be recorded by a Magistrate and this is a mandatory provision and failure to comply therewith shall make the confession invalid and unreliable. It has been further held therein that this provision of law together with the provisions of Section 364 of the Code of Criminal Procedure require to be strictly observed and followed to make the confession voluntary and true in the real sense to be fit for reliance for convicting an accused on his confession.

In the case of Nurul Haque and another Vs. The State reported in 20 DLR (HCD) 780, it was observed:

“Before recording the confession, it must be explained to the accused that he is not bound to make a confession and if he makes a confession, it may be used as evidence against him. It is a mandatory provision of law. No Magistrate should record any confession unless, upon putting questions to the accused, he has reason to believe that the confession was made voluntarily. Any defect arising out of violation of any mandatory provision of law is not curable under Section 533 of the Code of Criminal Procedure.”

A reference may be made to the decision reported in 1986 (BLD) 436 (Ali Asgar and another Vs. The State). In the said decision at page 438, it was held:

“Now let us consider the value of a retracted confession as against the maker. On consideration of evidence on record, if it is found that a confession is voluntary and true, conviction of the maker himself can solely be based upon the same, no matter whether it is retracted or not. In the case of the State Vs. Minbun alias Gul Hassan reported in 16 DLR (Supreme Court) page 598, their Lordships of the Supreme Court held as follows:
 

‘As against the maker himself, his confession, judicial or extra-judicial, whether retracted, or not retracted, can in law validly form the sole basis of his conviction. So we are also of the opinion that a confession, if proved true and voluntary, can be the sole basis for conviction of the maker of the confession.”

In the case of the State Vs. Punardhar Joydhar alias Kudu and Shefali reported in 31 DLR (HCD) 312, it has been held that the accused first made a confessional statement under Section 164 of the Code of Criminal Procedure that he committed that murder, although subsequently he retracted his confessional statement before the Court and the confession being found voluntary and without any threat, coercion or inducement, conviction of the accused based on his confession, though subsequently retracted by him, is valid in law.

The principle that has been enunciated in the case of Hazrat Ali and another….Vs…The State reported in 1990 BLD (HCD) 38 is that once a confession has been found to be true and voluntary, conviction can be based solely on the confession, even if it is retracted.

The ‘ratio decidendi’ of the case of Bakul Chandra Sarkar Vs. The State reported in 45 DLR (HCD) 260 is that if a confession recorded under Section 164 of the Code of Criminal Procedure is true and voluntary, the same alone is sufficient for convicting the confessing accused and retraction of confession is immaterial, once it is found to be true and voluntary.

Keeping the aforesaid decisions in view, let us deal with the confessional statement of the accused Abul Hossain. His confession (Exhibit-8) runs as follows:

“আমার নাম আবুল হোসেন। পিতা- মৃত আঃ আজীজ। আমরা ৫ ভাই দুই বোন। আমি ভাই-বোনদের মধ্যে চতুর্থ। গত ৮/৮/০৩ তারিখ সোহরাব ও বারী মিয়া রাত অনুমান ৩টার দিকে ফটিক মিয়া চৌধুরীর বাড়ীতে ডেকে নিয়ে যায়। আমরা সর্ব মোট ১২জন ছিলাম যেমন সোহরাব, বারী মিয়া, ওস্টার আলী, লেচু মিয়া, সেলিম, শমশের মিয়া, আফতাব আলী, মতিন, মুজিব, আমির আলী, আমির ও আমি আবুল হোসেন। আমরা ফটিক মিয়া চৌধুরীর বাড়ী ঢুকি। সোহরাব, ওস¹ার, মুজিব ও লেচু ফটিক মিয়ার ঘরে ঢুকে। মুজিব ফটিক মিয়ার স্ত্রীকে দাও দিয়ে কোপ দেয়। এক কোপেই ফটিকেরস্ত্রী মারা যায়। লেচু মিয়া ফটিক মিয়ার মেয়েকে ঘরের ভিতরে গলা টিপে মেরে ফেলে পাশের পুকুরে নিয়ে ফেলে দেয়। তারপর আমরা চলে আসি।”

There is no gainsaying the fact that the confessional statement of Abul Hossain has been recorded in the prescribed form. A reference to the confessional statement clearly and unmistakably shows that the learned Magistrate Md. Mojibur Rahman (P. W. 15) has recorded the same after substantially complying with all legal formalities. He has given all statutory warnings to the accused before recording his confession. Mr. Md. Mojibur Rahman, before recording the confession, has explained to the accused Abul Hossain that he is not bound to make any confession and if he does so, that may be used as evidence against him and thereafter he has become satisfied upon questioning him that he is making the confession voluntarily.

It is the contention of Mr. S. M. Shahjahan that the confessional statement of Abul Hossain is a product of police torture and oppression. But it does not appear from the evidence of the P. W. 15 Md. Mojibur Rahman that he has found any marks of injuries on the person of the accused Abul Hossain at the time of recording of the confession. A suggestion has been put to the P. W. 21 Md. Monjurul Murshed in his cross-examination that the confessional statement of Abul Hossain was extorted by breaking his right jaws, but that suggestion has been squarely denied by the P. W. 21. Besides, it does not transpire from the evidence of the P. W. 15 Md. Mojibur Rahman that the accused Abul Hossain has complained of any torture or oppression or maltreatment to him at the time of recording of his confession. The record shows that a petition was filed by the accused Abul Hossain on 08.11.2003 retracting his earlier confessional statement. As already held, retraction of confession by an accused is immaterial, once it is found to be true and voluntary.

Regard being had to the evidence of the P. W. 15 Md. Mojibur Rahman (confession-recording Magistrate) and the Investigating Officer Md. Monjurul Murshed (P. W. 21) and on consideration of the confessional statement of Abul Hossain (Exhibit-8), it seems to us that the confessional statement is true and voluntary. This is why, the subsequent retraction of the confession on 08.11.2003 by the accused Abul Hossain is of no consequence.

The evidence of the P. W. 2 Md. Masud Miah Chowdhury, P. W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum and P. W. 10 Sundari Bibi Chowdhury receives support from the confessional statements of the accused Abul Hossain and Abdul Matin.

The seizure of the alamats of the case like blood-stained wearing-apparels of the deceased, broken bamboo fence, blood-stained pillows, bed-sheet, ‘bendah’ etc. by the P.W. 21 Md. Monjurul Murshed supports the prosecution version of the case.

To our mind, the non-seizure of any electric bulb from the place of occurrence, in the facts and circumstances of the case and in the face of the evidence on record, will not tell upon the prosecution case on merit. In this context, the decisions in the cases of Abdul Latif alias Budu and others Vs. The State, 14 BLD (HCD) 94 and The State Vs. Manjur, 15 BLD (HCD) 193 relied on by Mr. S. M. Shahjahan do not help him in any way.

On the contrary, the decision in the case of Chowdhury Nuruzzaman and another Vs. The State, 6 BLC (AD) 58 referred to by the learned Deputy Attorney-General Mr. Md. Khurshedul Alam does not exactly fit in with the facts and circumstances of the case in hand. So the reference to that decision of the Appellate Division is wide of the mark.

It may be recalled that the defence version of the case is that Shahed Miah Chowdhury and Khaled Miah Chowdhury, paternal uncles of the P. W. 2 Md. Masud Miah Chowdhury, used to send money to Lovely from abroad and there were disputes with regard to that money between Lovely and other paternal uncles of the P. W. 2 as a result of which those paternal uncles of the P. W. 2 killed Lovely and Aklima at the material time for which one Jamal Ahmed, maternal uncle of the P. W. 2, filed Petition Case No. 41 of 2003 against his five paternal uncles in the Criminal Court and the present accused have been falsely implicated in the case out of previous animosity. It is admitted that Jamal Ahmed is a maternal uncle of the P. W. 2 Md. Masud Miah Chowdhury and that he filed Petition Case No. 41 of 2003 against five paternal uncles of the P. W. 2 vis-à-vis the occurrence in the Criminal Court. The P. W. 21 Md. Monjurul Murshed also investigated the said Petition Case as per the direction of the Criminal Court and during investigation, it transpired that there was no bank account in the name of Lovely with Sonali Bank, Kamal Bazar Branch, Biswanath, Sylhet. Rather a bank account stood in the name of the mother-in-law of the deceased Lovely, that is to say, Sundari Bibi Chowdhury (P. W. 10) with Sonali Bank, Kamal Bazar Branch and her two expatriate sons, namely, Shahed Miah Chowdhury and Khaled Miah Chowdhury used to send money to that bank account of Sundari Bibi Chowdhury from time to time and this being the panorama, the certificate of the Bank Manager dated 23.10.2003 (Exhibit-18) is a very material document. Needless to say, Exhibit-18 dated 23.10.2003 belies the defence version of the case.

According to the finding of the learned trial Judge, this is a case under Sections 302/149 of the Penal Code and not a case under Sections 302/34 of the said Code; but shockingly enough, in the operative part of the judgment, he recorded the conviction and sentence of all the accused under Section 302 of the Penal Code only which is ex-facie untenable in law. However, the question whether the instant case comes within the mischief of Sections 302/109 or Sections 302/34 of the Penal Code must be decided.

In the case of Barendra Kumar Ghosh. Vs. .King Emperor reported in AIR 1925 PC 1, the Judicial Committee dealt with the scope of Section 34 of the Penal Code and held thus:

“Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for ‘that act’ and ‘the act’ in the latter part of the Section must include the whole action covered by ‘a criminal act’ in the first part, because they refer to it.”

The classic case on the subject is the case of Mahbub Shah Vs. King-Emperor, AIR 1945 PC 118. In that case, referring to Section 34 of the Penal Code prior to its amendment in 1870, it was observed:

“When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.”

It was noticed that by way of amendment, the words “in furtherance of common intention of all” were inserted after the word “persons” and before the word “each” so as to make the object of the Section clear. Dealing with the scope of the Section, as it exists today, it was held therein:

“Section 34 lays down a principle of joint liability in the doing of a criminal act. The Section does not say ‘the common intention of all’ nor does it say ‘an intention common to all’. Under the Section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all, if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the Section implies a pre-arranged plan, and to convict the accused of an offence applying the Section, it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual: in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case.”

In the case of Hassan Vs. The State reported in 1969 SCMR 454, the Supreme Court of Pakistan laid down:

“In order to support a conviction under Section 34 of the Penal Code, mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention.”

In the case of Abu Sayed and another Vs. .The State reported in 38 DLR (HCD) 17, it was held:

“For the applicability of Section 34, it is essential that the act of murder is done by several persons and all the persons who were sought to be made liable by virtue of Section 34 must have done some act and those of the accused who have not taken any part either by word or by action in doing the act of murder can not be made liable under that Section.

Common intention must, also, be proved before a conviction under Section 34 can be made.” 
In the case of Muhammad Akbar and two others Vs. The State reported in PLD 1991 SC 923, the observation of their Lordships of the Supreme Court of Pakistan was couched in the following terms:

“Mere presence of an accused at the place of incident with a co-accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstance manifesting a common intention. Generally common intention, inter alia, precedes by some or all of the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan.”

In the case of Sk. Baharul Islam Vs. The State reported in 11 BLD (HCD) 158, it was stated:

“For the application of Section 34, it must be established first that a criminal act has been done by several persons and secondly that all the participants intended that the criminal act should be done and lastly that the criminal act has been done in furtherance of common intention shared by all the offenders. There must be evidence to show that the accused were present at the scene of occurrence and have actually participated and there must be a pre-concert or pre-arranged plan.
 

Inference of common intention within the meaning of Section 34 of the Penal Code should not be readily drawn or pushed too far unless the same is deducible from the evidence and circumstances of the case.”

In the decision in the case of the State represented by the Solicitor, Ministry of Law & Justice, Government of Bangladesh Vs. Montu alias Nazrul Haque & others reported in 44 DLR (AD) 287 relied on by the learned Deputy Attorney-General Mr. Md. Khurshedul Alam, it was held, inter alia, in paragraph 9:

“9. Section 34 lays down the principle of joint liability for doing a criminal act. The essence of the liability is to be found in the existence of common intention animating the accused persons to the doing of a criminal act in furtherance of the common intention of them all. “Common intention” of several persons is to be inferred from their conduct, manner of doing the act and the attending circumstances. If one has intention to do any act and others share this intention, their intention becomes “common intention” of them all. And if the act is done in furtherance of the common intention, then all who participated in the act are equally liable for the result of the act………………………………………………………………………………………………………………………………………..”

In the case of Abu Sayed and another Vs. .The State reported in 38 DLR (HCD) 17, it has been held that under Section 34 in case of a criminal act in furtherance of common intention by several persons, each shall be individually liable for the act which he has committed; but under Section 149 every member of the unlawful assembly is guilty of the offence committed in prosecution of the common object. Under Section 34 each of the accused must do some act in furtherance of common intention. For the applicability of Section 34, it is essential that the act of murder is done by several persons and all the persons who were sought to be made liable by virtue of Section 34 must have done some act and those of the accused who have not taken any part either by word or by action in doing the act of murder can not be made liable under that Section. Common intention must, also, be proved before a conviction under Section 34 can be made.

In the case of the State Vs. Idris Pandit and Anu Mia reported in 25 DLR (HCD) 232, it has been held that the ingredients of Section 34 must be fulfilled to justify its application in the absence of which no conviction under Section 34 is valid. The common intention may grow in the course of the event. A common intention or common object is a thing which can not always be proved by direct evidence and it should be inferred from the surrounding facts and circumstances of the case.

The essential constituent of the joint criminal liability prescribed by Section 34 of the Penal Code is common intention. Such common intention, it is well-settled, can be formed even at the spot and it is not necessary that long interval should intervene between the formation and the actual commission of the crime. The common intention is to be inferred from the surrounding facts, circumstances, conduct of the parties and various acts of the accused. In order that intention may be common, the test which is applied is whether intention of one was known to the other and shared by that other. Though common intention implies a pre-arranged plan or concert between persons, it is not necessary that the pre-arranged plan must come into existence before the acts are done. It can come into existence whilst the acts are being committed and can be inferred from such acts (Oswal Danji Tejsi and others….Vs… The State, AIR 1961 Gujarat 16). In a case where the assault is not sudden, common intention should be generally presumed unless there is something to show that there was no opportunity for the accused to have a concert.

The crystallized judicial views that have emerged from the above-mentioned authorities are as follows:

The distinct feature of Section 34 of the Penal Code is the element of ‘participation in action’;

A common intention pre-supposes prior concert. It requires a pre-arranged plan because before a man can be jointly convicted for the criminal act of another, the act must have been in furtherance of common intention of all of them. Accordingly, there must have been a prior meeting of minds. Unless a common intention is established as a matter of necessary inference from the proved circumstances, the accused person will be liable for his individual act and not for the act done by any other person. For an inference of common intention to be drawn for the purpose of Section 34, the evidence and circumstances of the case should establish without any room for doubt that a meeting of minds and fusion of ideas had taken place amongst different accused and in furtherance of that common intention, overt acts of the accused persons flowed out as if in obedience to the command of a single mind;
Criminal sharing of overt or covert act by active presence or by distant direction making out certain measure of jointness in the commission of the act is the essence of Section 34 of the Penal Code;

A person merely because he was present at or near the scene without doing anything could not and can not be convicted with the aid of Section 34 for the offence committed by other accused persons; and

Common intention of the accused persons to do a criminal act may be formed at the spot even on the spur of the moment.

Section 34 of the Penal Code speaks of common intention while Section 149 of the said Code refers to common object. Besides, Section 149 comes into operation only when there is an unlawful assembly of five or more persons as required by Section 141 and in that view of the matter, it has a wider scope than Section 34. The essence of Section 34 is common intention. Both Sections deal with combination of persons who become punishable as sharers in a crime. The basis of constructive guilt under Section 149 is mere membership of the unlawful assembly while the basis under Section 34 is participation in some action with common intention of committing the crime.

The upshot of the above discussion is that in a case under Sections 302/34 of the Penal Code, all the accused must have participated in the commission of the offence in some form or other while in a case under Sections 302/149, the criminal act might have been committed by a member of an unlawful assembly in prosecution of the common object of that unlawful assembly. Whether a criminal act is an individual act of an accused or is committed in furtherance of common intention of all the accused or in prosecution of the common object of the unlawful assembly is a matter to be decided in the facts and circumstances of the case and from the conduct of the accused. In this matter, no strait-jacket formula can be laid down.

It is abundantly clear from the conduct of the accused Ustar and Sohrab that by their active armed presence, they shared the common intention of the accused Mujib and Lechu which was formed at the spot on the spur of the moment when those accused did not find their target at the place of occurrence room, that is to say, P. W. 1 Md. Fatik Miah Chowdhury. Originally all the twelve accused were animated by common intention to kill the P. W. 1 and in furtherance of that common intention, they went to the place of occurrence. As they missed their target (Fatik Miah Chowdhury), the four accused, namely, Mujib, Sohrab, Ustar and Lechu developed their common intention to kill Lovely and Aklima, two innocent persons and in furtherance of their common intention, they (Lovely and Aklima) were done to death in a cruel manner.

It appears that the accused Shamshad, Selim, Abul Hossain (a confessing accused), Amir Hossain and Amir Ali did not share the common intention of the accused Mujib, Sohrab, Ustar and Lechu in the matter of killing of Lovely and Aklima in that those five accused were outside the place of occurrence room and they did not know what was going on inside that room. In such view of the matter, the question of sharing of the common intention of the accused Mujib, Sohrab, Ustar and Lechu to kill Lovely and Aklima by those five accused is out of the question. Precisely speaking, the accused Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali can not be connected with the killing of Lovely and Aklima in furtherance of common intention as contemplated by Section 34 of the Penal Code. Had all the twelve accused succeeded in killing the P. W. 1 Md. Fatik Miah Chowdhury as planned, then those accused would have incurred the criminal liability under Sections 302/34 of the Penal Code. As the accused Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali did not share the common intention of the accused Mujib, Sohrab, Ustar and Lechu, they can not be fastened with the criminal liability under Sections 302/34 of the Penal Code. That being so, the accused Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali are liable to be acquitted of the charge levelled against them.

According to us, the facts and circumstances of the case and the evidence on record do not attract the mischief of Sections 302/149 of the Penal Code as found by the learned trial Judge in the impugned judgment; rather it is a case under Sections 302/34 of the Penal Code as detailed above. We are taken by surprise at the conviction of all the accused under Section 302 of the Penal Code only in the operative part of the impugned judgment, though it is the definite finding of the learned trial Judge that it is a case under Sections 302/149 of the Penal Code. However, as this finding is an erroneous finding, it is struck down.

In view of what have been discussed above, there is no room for doubt that the accused Mujib, Sohrab, Ustar and Lechu are responsible for the death of Lovely and Aklima. This is why, the submission of Mr. S. M. Shahjahan for awarding the benefit of doubt to the accused Mujib and Lechu stands negatived.

Incidentally, we feel tempted to say that the concept of benefit of doubt as has been understood in our Criminal Jurisprudence signifies reasonable doubt. Can a Court of law reject the substantive and ocular evidence on record and other attending facts and circumstances as in the present case which have been found to be trustworthy on mere grounds which are fanciful or based on conjectures and surmises? In this context, it will be worthwhile to quote a passage from A.I.R 1972 Supreme Court-975 wherein the Supreme Court of India while elaborating the principle of benefit of doubt held in paragraph-6 to the following effect:

“The benefit of doubt to which the accused is entitled is reasonable doubt-the doubt which rational-thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy, though unwittingly it may be or is afraid of the logical consequence, if that benefit is not given. The maxim that the prosecution must prove beyond doubt the guilt of the accused or otherwise he is entitled to the benefit of doubt does not mean that the prosecution evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. On the contrary, once the guilt of the accused is established, the mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond all reasonable doubt.”

In the instant case, in the face of the unimpeachable, untainted and unblemished ocular evidence of the P.W. 2 Md. Masud Miah Chowdhury coupled with the trustworthy evidence of the P. W. 3 Md. Farid Miah Chowdhury, P. W. 4 Md. Manjur Miah Chowdhury, P. W. 5 Kulsuma Begum, P. W. 6 Ayesha Khanom, P. W. 7 Halima Begum, P. W. 8 Md. Monsur Miah Chowdhury, P. W. 9 Rubi Begum and P. W. 10 Sundari Bibi Chowdhury and the medical evidence on record and having regard to the attending circumstances of the case, the question of awarding the benefit of doubt to the accused Mujib and Lechu does not arise at all. As already held, the death of Lovely and Aklima was caused in furtherance of common intention of all the four accused, namely, Mujib, Sohrab, Ustar and Lechu.                                                                          

Now a pertinent question arises as to whether the accused Mujib, Sohrab, Ustar and Lechu are guilty of the offence of culpable homicide amounting to murder or of the offence of culpable homicide not amounting to murder?
In the case of Bandez Ali alias Md. Bandez Ali Vs. The State reported in 40 DLR (AD) 200, it was held at page 201:

“Culpable homicide has been defined in Section 299, and murder in Section 300 of the Penal Code. All ‘murders’ are necessarily ‘culpable homicides,’ but not vice-versa. Culpable homicide is the causing of death by doing any act with the intention of causing death or with the  intention of causing such bodily injury as is likely to cause death or with the knowledge that the offender is likely, by such act, to cause death. Culpable homicide becomes murder in any of the four circumstances as stated in Section 300…………………........................ .................................................................................................................................. unless it falls into any of the five Exceptions referred to in Section 300.”

In the case of the State represented by the Solicitor to the Government of the People’s Republic of Bangladesh Vs. Ashraf Ali and others reported in 46 DLR (AD) 241, it was observed by our Appellate Division in paragraph 5:

“5. Culpable Homicide in Section 299 is: ‘whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits Culpable Homicide’. Murder has been described in Section 300 of the Penal Code, and without correct understanding of what is ‘Culpable Homicide’, one can not understand what is ‘Murder’. To put it in a simple way, an aggravated form of Culpable Homicide is Murder. In other words, Culpable Homicide falling within any of the four classes of cases specifically described in Section 300 is Murder. All Murders are necessarily Culpable Homicides, but all Culpable Homicides are not Murders, and these cases are termed as ‘Culpable Homicides not amounting to Murders’. Mere killing of a person or mere causing a person’s death is not Murder, Culpable Homicide or even any other criminal offence; but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in Section 299 as ‘Culpable Homicide’ and four classes of cases have been described in Section 300 as ‘Murder’. Cases described in class (1) is common in both the two Sections, 299 and 300. That is, when death is caused by an Act ‘done with the intention of causing death’, then it is Murder or Culpable Homicide amounting to Murder. In the other categories of cases as described in both these Sections, the difference between ‘Culpable Homicide’ and ‘Culpable Homicide amounting to Murder’ is the mere degree of probability of the death being caused; when death is probable, it is Culpable Homicide; and when death is most probable, then it is Murder.”

Coming back to the present case, the manner of the occurrence as deposed to by the star prosecution witness (P. W. 2) Md. Masud Miah Chowdhury together with the evidence of the P. W. 4 Manjur Miah Chowdhury and P. W. 5 Kulsuma Begum and the medical evidence adduced by the P. W. 20 Dr. M. A. Shahid go to show that the criminal act was done with the intention of causing the death of Lovely and Aklima thus attracting the ingredients of Clause ‘Firstly’ of Section 300 of the Penal Code. This being the state of affairs, the criminal act committed by the accused Mujib, Sohrab, Ustar and Lechu is culpable homicide amounting to murder.

It is a truism that in the criminal justice delivery system, sentencing is the cutting-edge of the judicial process.

In the case of the State Vs. Rokeya Begum alias Rokaya Begum and another (condemned-prisoners) reported in 13 BLT (HCD) 377, it was held in paragraph 51:

“51. Sentencing discretion on the part of a Judge is the most difficult task to perform. It is, also, not possible to lay down any cut and dry formula for imposition of sentence, but the object of sentence should be to see that crime does not go unpunished and the victim of crime as, also, the society has the satisfaction that justice has been done. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and cruel act perpetrated by the offenders. To give lesser punishment to the condemned prisoners who stand convicted in a shocking and revolting crime would render the Justicing System of the country suspect. Under sympathy to impose inadequate sentence would do more harm to Justice System to undermine public confidence in the efficacy of law.”

In the decision in the case of Madan Gopal Kakkad Vs. Naval Dubey and another reported in 3 SCC (1992) 204, it was observed in paragraph 58:

“58. We feel that Judges who bear the Sword of Justice should not hesitate to use that Sword with the utmost severity, to the full and to the end, if the gravity of the offences so demand.”

It is on record that the accused Mujib dealt two dagger blows on the head of Hosne Ara Lovely resulting in her instantaneous death on her cot at the place of occurrence bed-room. Moreover, a mature foetus (nine-month-old) was found killed in the uterus of Lovely. Again the accused Lechu, without rhyme or reason, throttled the infant daughter Aklima to death and threw away her dead body in the pond behind the place of occurrence house. The criminal act appears to be cold-blooded, brutal, gruesome and shocking to our conscience. The circumstances are aggravating and not mitigating or extenuating in so far as the accused Mujib and Lechu are concerned. So we should not hesitate to use the Sword of Justice as regards them with the utmost severity, to the full and to the end. As the remaining two accused, namely, Sohrab and Ustar did not play any major role in the commission of the criminal act, they have been rightly sentenced to imprisonment for life by the Court below.

In a case under Sections 302/34 of the Penal Code when an accused is sentenced to death, he is not awarded any sentence of fine. In the instant case, the death sentence awardees have been sentenced to pay a fine of Tk. 1,000/- each. This sentence of fine awarded to the condemned-prisoners is improper or inapposite, though not illegal. As such, the sentence of fine imposed upon the condemned-prisoners, namely, Mujib Ali and Lechu Meah is knocked down.

The other convictions and sentences recorded against the accused Mujib, Lechu, Sohrab and Ustar under various Sections of the Penal Code are, no doubt, superfluities. So those convictions and sentences are set aside.

In view of what have been discussed above, we do not find any merit in Criminal Appeal Nos. 4263 of 2007, 2018 of 2007, 2244 of 2011, Jail Appeal No. 275 of 2007 and Criminal Appeal No. 2529 of 2007 so far as it relates to the condemned-prisoner Mujib Ali. Those appeals are, therefore, necessarily dismissed. Consequently, we accept the Death Reference and confirm the death sentence imposed upon the condemned-prisoners, namely, Mujib Ali and Lechu Meah @ Kamal Ahmed. The other appeals, that is to say, Criminal Appeal Nos. 1913 of 2007 and 2529 of 2007 so far as it relates to the accused Abul Hossain and Amir Hossain and Jail Appeal Nos. 273 of 2007 and 274 of 2007 are allowed. The impugned judgment stands modified with the findings and observations made in the body of this judgment.

However, the impugned judgment is reversed so far as it relates to the accused Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali and the same is maintained so far as it relates to Mujib, Sohrab, Ustar and Lechu.

The accused-appellants Shamshad, Selim, Abul Hossain, Amir Hossain and Amir Ali are acquitted of the charge levelled against them and let them be discharged from their respective bail bonds at once.

The convict-appellant Ustar Ali, son of late Nirmuj Ali of village Nobhagi, Police Station Dakkhin Surma, District- Sylhet is directed to surrender to his bail within 15 (fifteen) days from date in order to serve out the sentence of life-term imprisonment in full, failing which, the Court below will take necessary steps to secure his arrest to that end.

Let the lower Court records along with a copy of this judgment be sent down immediately.

Ed.