Md. Mofiz Uddin @ Mofiz Vs. The State, 3 LNJ (2014) 825

Case No: Criminal Appeal No. 7191 of 2008

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Advocate: Mr. Moinuddin,Mr. Aminur Rahman Chowdhury,,

Citation: 3 LNJ (2014) 825

Case Year: 2014

Appellant: Md. Mofiz Uddin @ Mofiz

Respondent: The State

Subject: Law of Evidence,

Delivery Date: 2010-05-16

HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Syed Muhammad Dastagir Husain, J
And
A. K. M. Zahirul Hoque, J

Judgment on
16.05.2010
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Md. Mofiz Uddin @ Mofiz
...Convict appellant
Versus
The State
. . . Respondent.
 
 
Code of Criminal Procedure (V of 1898)
Section 342
Evidence Act (I of 1872)
Section 106
Ordinarily an accused has no obligation to account for the death for which he is placed on trial. It appears that as the murder of the wife Baby took place in the custody of her husband appellant in the same house. Then the appellant was under an obligation to explain how his wife had met with her death. No explanation was made by the appellant neither in the cross examination nor in the examination under section 342 of the Code of Criminal Procedure and in the absence of any explanation which is required under section 106 of the Evidence Act, it seems none other than the husband was responsible for causing the death of his wife. . . . (42)
 
Penal Code (XLV of 1860)
Sections 302 and 304 Part II
It was not a cool headed and premeditated murder, rather the fact of the case as disclosed that the incident took place out of altercation due to monitory transaction which has taken into such circumstances to commit the alleged offence of murder. When intention to kill is lacking and therefore it is not a culpable homicide amounting to murder and hence alleged offence of murder does not fall within the provision of section 302 of the Penal Code rather the alleged offence comes under the provision of section 304 part II of the penal code. In the result the appeal is dismissed by altering the conviction and sentence to the effect that the accused Appellant Md. Mofiz Uddin @ Mofiz is convicted under section 304 part II of the penal code and sentencing him to suffer rigorous imprisonment for 10(ten) years only instead of section 302 of the Penal Code. . . . (43 and 44)
 
Mr. Moinuddin
...For the convict appellant.

Mr. Aminur Rahman Chowdhury, A.A.G.
...For the State.

Criminal Appeal No. 7191 of 2008
 
JUDGMENT

A.K.M. Zahirul Hoque, J:
 
This appeal is directed against the judgment and order of conviction dated 24.9.2008 passed by the Sessions Judge, Chandpur in Sessions Case No. 114 of 2006 arising out of Matlab (North) P.S. Case No. 8 dated 15.4.2006 G.R. No. 27 of 2006 convicting the appellant under section 302 of the Penal Code sentencing him to suffer imprisonment for life along with fine of Tk. 10,000/- and in default to suffer rigorous imprisonment for 1 year more.

The prosecution case in short is that on 15.4.2006 one Md. Murtuza lodged Ezahar before the officer in charge of Motlab (north) police station with in the District of Chandpur alleging inter alia, that at about 6 years ago his younger sister Babi Akter got married with Mofiz Uddin son of Khalil Prodhan of Deng-urviti. After solemnizing marriage his brother in law Mofiz Uddin went to Saudi Arabia for service. He came back to Bangladesh after 3 years. Thereafter a male child was given birth. Thereafter he further went to Saudi Arabia for service. He came back to Bangladesh before 1 months. Mofiz Uddin used to torture his sister. On 15.4.2006 at about 1.30 A.M. said Mofiz Uddin with other accuseds pressed the neck of his sister Baby Adter and killed her by suffocation. At about 2 a.m. his another brother in law Jainal Abedin Sarker gave information to his home of his tragic incident. Thereafter the informant along with his relatives went to the house of Mofiz Uddin and found the dead body of his sister lying on the bed and thereafter with the help of his relatives he caught Mofiz Uddin and that Mofiz Uddin voluntarily admitted before many people that he killed his sister at about 1.30 a.m. and hence the case. The case was recorded as Motlab (North)Police Station Case No.8 dated 15.4.2006 under section 302/34 of the Penal Code.

On 24.5.2006 the investigation officer after investigation submitted charge sheet being charge sheet No. 27 against the accused appellant under section 302 of the Penal Code.

The case was transferred to the Court of Sessions Judge, Chandpur for trial and was numbered as Sessions Case No. 114 of 2006.

On 13.9.2006 the Sessions Judge, Chandpur framed charge against the accused appellant under section 302 of the Penal Code vide order  No.3 and the accused prayed for fresh trial and claiming himself as not guilty.

The learned Sessions Judge after holding trial passed the judgment and order of conviction and sentence of the appellant under section 302 of the Penal Code through the impugned judgment and thereafter against which the appellant preferred this appeal.

Mr. Moinuddin, the learned advocate appearing on behalf of the appellant submits that there is no materials on record to Connect the accused Appellant with the alleged offence of charge under section 302 of the Penal Code. He further submits that though 11 P.Ws. were examined on behalf of the prosecution and all the witnesses contradicted with each other in the material particular as to time place and manner of occurrence therefore the prosecution failed to prove the charge against the appellant by adducing corroborative witnesses. He further submits that the appellant has no intention to kill his wife and the occurrence took place incidentally due to certain provocation regarding in the monitory transaction which was not at all considered by the trial court and lastly he submits that the appellant has a minor child of 2 years at the time of occurrence now of 4 years in such facts and circumstances the conviction under section 304 Pat II of the penal Code can be awarded in place of Section 302 of the penal Code by alteration the sentence thereunder for the ends of justice. The learned advocate for the appellant also referred the decision in the case of Shafiullah @ Kala Mia Vs. The State, Reported in 1985 BLD page 128 and also the Case of Mahiruddin & others Vs. The State Reported in 1986 BLD (AD) 318.

On the other hand the learned Assistant Attorney General appearing on behalf of the State submits that the victim met her death while she was in custody of her husband and she further submits that the prosecution well proved the charge as to the date time place and manner of occurrence and immediately after commission of offence the appellant made confession by admitting the said offence of  killing before the witnesses as well as before the Magistrate 1st class and that confession was proved by the ocular evidences of P.W.1 and P.W.8 as well the Magistrate who recorded the same and which was volantary in nature and also true therefore the conviction can be awarded on the basis of said Confession only. He further submits that the facts and circumstances of the case along with the Post Mortem report well proved that it was appellant who killed his wife alone while she was in his custody and therefore the impugned judgment passed by the trial court was proper and legal one. He lastly submits that it is well proved by the P.Ws. and D.Ws. that the death was within the custody of her husband for which the appellant did not give any explanation under what circumstances his wife met her death without such explanation the appellant is liable for commission of the offence and as such the appeal is liable to be dismissed.

Heard the learned Advocate of both the parties, perused the relevant papers and documents, confessional statement of the accused and impugned judgment.

Now let us analysis the depositions of the witnesses Led by the parties to arriave at a Correct decision.

P.W. 1 Md. Golam Mostafa, stated in his chief that the victim Babi Akter was his sister. The occurrence took place about 1 years ago. Mofiz was the husband of the victim Babi Akter. On Friday at night 1 hours on getting information that victim died at the home of accused and on the next morning he went to that house and saw the dead body of victim was lying in the house of the accused and he also saw the accused Mofiz was in that home and thereafter police arrested the accused and asked in their presence then he confessed that he killed the victim Babi Akter by strangulation and he identified the accused in the dock. Thereafter his brother as informant lodged the F.I.R.

In cross examination he stated that the accused was in Saudi Arabia since long day and the occurrence took place after 15 days from the date of arrival of the accused from Saudi and there was quarrel regarding family affairs with accused and victim and a salish took place between them by the villagers and he also stated that the accused confessed before the witnesses by sitting in the police station while Commissioner Amanat, Mozaffar Mollah, brother of Mortuza, brother in law of the informent, Joynal Abedin were present and he denied the suggestion of the defence.

P.W. 2 Md. Mortuza, in his examination in chief stated that he is the informant. Victim Baby Akhter was her younger sister that marriage took place in the year of 2000 between the accused and victim. They have a child and his name is Rubel. Occurrence took place on 14.4.2006 Friday night at 1.00 p.m. and on the date of occurrence accused Mofiz killed his wife in his house and he got information through his sister in law Joynal Abedin at 2/2.30 A.M. that house of the accused is  a mile distance from his home . Immediately after reached there he found the dead body of his sister Baby was lying in the house of the accused at north viti and he found the blood stained in the nose and eyes and also found sand on the face of the victim and he caught hold the accused Mofiz from his house and on query accused Mofiz admitted that he killed the victim Baby Akhter due to altercation regarding monitory transaction. Thereafter he went to the police station and lodged the F.I.R. he identified the F.I.R. which was marked as Ext. 1. He also put his signature in the seizure list for the sharee and blouse of the victim those were exhibited as Ext. 2 and material Exts. I, II, III respectively.

In his cross examination he stated that he is a cultivator. Victim Baby Akhter was his Younger sister. Accused Mofiz left to foreign country after solemnizing marriage with the victim. He further stated that the accused came back before 1 months from the date of occurrence and he denied the suggestion that the victim Baby did not take care of his father in law and mother in law. While accused was in Saudi Arabia and he also denied the suggestion that the money which was send by accused has been misused by the victim Baby Akhter and his Vira Joynal Abedin and he did not see the killing of victim Baby. He denied the suggestion that the victim Baby was engaged with a illicit connection with other. He also denied the suggestion that due to monetary transaction an altercation took place between the accused and victim and in course of altercation victim became seriously exited and caused death due to stroke. He also denied the suggestion that the accused Mofiz is not liable for causing death of the victim Baby Akhter.

P.W. 3 Md. Alauddin, in his examination in chief stated that the informant is his cousin and he used to reside in the same home as of the informant and the occurrence took place on 10.4.2006 in the night at 1.30 A.M. Accused Mofiz was the husband of victim Baby. On the date of occurrence he went to the house of the informant and got information that victim Baby was killed in her husband house and thereafter he along with the informant and others went to the home of the accused Mofiz and wherein he found that the dead body of victim Baby Akter was lying on the floor in the house of the accused. He also brought accused Mofiz from the place of occurrence house. Thereafter the informant lodged the ejahar. He also stated that accused Mofiz confessed before them that he killed Baby Akter by strangulation.

In his cross examination he stated that he did not see the occurrence and he did not went to the police station for lodging the F.I.R. He also stated that at night at 1.00-2.00 p.m. he got the information about the killing of victim Baby and went to the house of the accused and he also stated that he caught the accused from the house of the accused and he denied the suggestion that he deposed falsely due to relation with the victim.

P.W. 4 Amer Ullah Prodhan, in his examination in chief stated that he was the Commissioner of Ward No.7,Chengarchar Pourashava and the date of occurrence took place on  15.4.2006. On that date the informant Mortuza along with 2/3 persons went to him at his house and informed that the sister of the informent namely Baby Akter was killed by her husband. He stated that the accused was the husband of victim Baby and this witness identified the accused on the dock. He stated that he went to the house of accused with the informant and found the dead body of the victim in the house of north viti of the accused and thereafter he went to the police station with the informant and the police came to the place of occurrence with him and the police arrested the accused from the house of the accused and took him to the police station and in where the accused admitted that he killed his wife.

In cross examination he stated that he did not know about any salish. He did not see how the victim met her death and he also stated that accused Mofiz was arrested by the police from his residence. He denied the suggestion that there was a dispute between husband and wife regarding family affairs and altercation took place and due to accident the victim met her death by stoke. He denied the suggestion that he deposed falsely at the influence of the informant.

P.W. 5 Joynal Abedin in his examination in chief stated that the informant is his brother in law and the victim Baby was his sister in law. He also stated that accused Mofiz was the husband of victim Baby Akhter and his residence situated of the same village of the accused and the occurrence took place on 14.4.2006 at night 1.00-2.00 A.M. while he was slept in his house. On the date of occurrence the mother of the accused gave information to him that the victim was ill and after getting information he went to the house of the accused and he found the dead body of victim Baby in the house of the accused which situated in the north viti of the their home and thereafter he gave information to the informant and he also stated that the accused Mofiz admitted that he killed his wife by strangul-ation and he identified the accused Mofiz on dock.

In his cross examination he stated that accused Mofiz did not send any money from the foreign country in the name of the victim and he used to service of the Samoboy Office at Narayangonj. He also stated that he has a account at Sonali Bank at Narayangonj. He further stated that Tk. 55,000/- was sent to his account by the accused in two installments. He stated that the father of the accused does not know how to read and how to write. He denied the suggestion that the victim Baby has illicit connection. He also denied  the suggestion that the money which was sent by the accused was misappropriated by the family of the informant and he also stated that the money was sent by the accused for his father. He handed over money to the father of the accused and he also denied the suggestion that due to accident victim Baby met her death through stoke.

P.W. 6 Md. Baten Sarker, in his examination in chief stated that the informant Mortuza and accused Mofiz are known to him. He also stated that his residence and accused Mofiz residence are in the same village. He did not remember the date of occurrence. He further stated that after hearing hue and cry he went to the house of the accused and saw that the dead body of Baby was lying on the ground in the house of the accused. He also found the accused Mofiz of his house as sate on the chowki and he also stated that on query accused Mofiz admitted that he killed the victim Baby by strangulation.

In his cross examination he stated that he did not see how the victim Baby met her death. He denied the suggestion that he deposed against the accused due to influence by the informant and he denied the suggestion of the defence.

P.W. 7 A. Sattar stated in his exami-nation in chief that the informant and accused Mofiz are know to him. He also stated that the date of occurrence on 14.4.2006 at night 1.30 A.M. to 2.00 A.M. and he also stated that he and accused are the inhabitants of the same village and on the date of occurrence while he was sleeping after hearing hue and cry he came to the house of the accused and saw the dead body of the wife of the accused Baby lying on the ground of the house of the accused and at the time the accused Mofiz was present there. On query by the persons accused admitted that he killed his wife by  strangulation.

In his cross examination he stated that the informant is his cousine and he denied the suggestion that as per the instigation of the informant he deposed about the confession of the accused. He denied the suggestion that he did not go to the house of the accused on the date of occurrence and also denied that he deposed falsely due to cousin of the informant.

P.W. 8 Shahjahan, in his examination in chief stated that the informant is his relatives and victim Baby is his sister in law and accused Mafiz was the husband of the victim. He identified the accused on the dock. His house and accused house are situated in the same village and also stated that the occurrence took place on 14.4.2006 at night about 2.00 after hearing hue and cry he went to the house of the accused Mafiz and inwhere he found the dead body of the victim Baby Akter was lying on the ground and he also found the accused was on the chowki and on query the accused admitted that he was killed the victim Baby by strangulation.

In his cross examination he stated that the distance of the house of the accused from his house after 7 kani land. He also stated that Baby has a son. He denied the suggestion that due to relatives of the informant he deposed falsely against the accused.

P.W. 9 Md. Abul Kalam, in his examination in chief stated that he was Sub-Inspector of Police at Matlob Police Station. He also stated that on 15.4.2006 the officer in charge S.I. Golam Farooq after filling  the F.I.R. form started the case and deployed him as investigating officer of the case and during the course of investigation he visited the place of occurrence and prepared the inquest report of dead body of Baby and prepared the seizure list and send the dead body to the Morgue for her post mortem and the sketch map and he recorded the statement of the witnesses and arrested the accused Mafiz and also made arrangement to record the confession of the accused by the magistrate and after investi-gation he found prima facie case against the accused appellant and submitted charge sheet and the inquest report was exhibited as Ext. 3. Seizure list also exhibited as Ext. 2, Sketch map with index was exhibited as Ext. 4 and 5 and the sharee and blouse were material Exhibited which are identified by the witnesses.

In his cross examination he stated that he went to the place of occurrence on 15.4.2006 at 11.05 hours and accused Mofiz was arrested from his house and on 16.4.2006 Magistrate recorded the confessional statement of the accused. He also stated that the accused was in Thana custody on 15.4.2006. He denied the suggestion that on 15.4.2006 the accused was tortured by the police of thana and he also denied the suggestion due to fear of death the accused made confession and he also denied the suggestion that the confession was given as per his instruction and also denied that was not voluntarily made. He denied the suggestion that the accused disclosed that the victim suicide herself. He also denied the suggestion that accused Mofiz confessed about the killing of his wife by himself by strangulation. He also stated that the accused Mofiz was in the foreign country. He also denied the suggestions that he did not hold proper investigation, deposed falsely, submitted false charge sheet.

P.W.10 Selina Parvez, U.N.O. Comilla Sadar, Comilla in her examination in chief stated that on 16.4.2006 while he was Magistrate, 1st Class at Chandpur one S.I. Abul Kalam Azad brought accused Mofiz at 11.00 A.M. before him for recording his confessional statement and thereafter she complianced all the formalities as per law and Rules she recorded the confessional statement of the accused and she also stated that the said confessional statement was voluntarily made and said confessional statement was exhibited as Ext. 6.

In cross examination she stated that she was in the court chamber while the accused brought before him at 11.00 A.M. and she denied the suggestion that she did not talk with the accused while she was brought before him and she also stated that she talk with the accused and the accused was remained within the custody of a peon and he also stated that she recorded  confession at 3.00 p.m. She also stated that she did not find any injury on the body of the accused and no allegation of torturing was made to him by the accused. She denied the suggestion that the injury was under his shirt and cloth and she also denied that the accused disclosed fact before him and she denied the suggestion due to fear of cross fire the accused made confessional statement. She also stated that accused was arrested on 15.4.2006 and she was brought before her from the police custody and she denied the suggestion that the confessional statement of the accused was not voluntarily and due to fear of cross fire she  made confession.

P.W. 11 Shafiqul Islam, in his examin-ation in chief stated that he is a medical Officer, Chandpur Sadar Hospital. On 15.6.2006 while he was on duty of the said hospital he held post mortem of victim Baby Akter and constable namely Md. Kowser identified the said victim. After examination he found the following injury:-
Face swallen and cyanosed extends upto chest wall with presence of mud and dust on the face and nestrails.
One brinsing of 2” x 1” at the right side of the face between right eye and right ear.

His opinion was that death was due to asphyxia resulting from combined effect of strangulation as well as suffocation which was antimortem and homecidal in nature. The post mortem report was exhibited as Ext. No. 7.

In his cross examination he denied the suggestion that a persons if fell down on the ground normally in that case simple injury can be found in the post mortem. He denied the suggestion that her opinion was not correct. He denied the suggestion that the surat hal report and his post mortem Report are inconsistent with the description of the dead body and he denied the suggestion that he deposed falsely. 
These are the statements made by the prosecution witnesses.

Now let us analyse the deposition made by the defence witnesses.
D.W. 1 Sultan Bepari, in his examination in chief stated that he knows the accused Mofiz as his neighbour. He also knows the victim Baby Akhter and he also stated that after marriage the accused Mofiz went to Saudi Arabia for service and he also stated that from there money was sent to the name of his wife Baby Akhter and in the name of his vira Joynal Abedin and that money was misappropriated by them. The character of the Baby was not good. He also stated that for that reason accused Mofiz was annoyed with her. He also stated that Baby dead before 2 years back he could not say how to met her death. He did not hear that Mofiz killed his wife Baby Akhter by strangulation. Accused Mofiz is a good boy. There is a minor son of Mofiz and Baby Akhter. He also stated that the date of occurrence at night he found that the accused Mofiz was beaten by his brother in law, vira and others.

In his cross examination he stated that his house is 3 kani distance from the house of Mofiz and there is no home between these house and at about 12/12.30 at night the brother in law of Mofiz shouted that his sister was killed and he also stated that there was a case for his misappropriate of money against Baby and vira of Mofiz he also stated that he saw the dead body of Baby in the house of Mofiz on the date of occurrence. He denied the suggestion that he deposed falsely at the instance of the accused.

D.W. 2 Abdur Rashid Khan, in his examination in chief stated that accused Mofiz is his neighbour. He knows him and he also knows Baby the wife of the accused. About 100 yards distance from the house of the Mofiz to the north of his house. About 2 years before at night about 1 and  A.M. after hearing hue and cry he went to the house of the accused Mofiz and he found the accused was confined and the brother in law of accused Mofiz and his vira were beaten to the accused. He also stated that accused Mofiz used to serve at Saudi Arabia from where he sent  money to his wife Baby Akhter and vira Joynal Abedin and he also heard that money was not given to his father. He did not say how Baby dead. He also stated that the character of Baby was not good. He also stated that the minor boy of Mofiz who is now residing with his grand father.

In his cross examination he stated that he did not know how the victim Baby died and he also did not say who killed her and he also stated that he deposed by hearing the said fact. He also stated that he saw the dead body of the wife of accused in the house of the accused situated at the north vity. He denied the suggestion that due to save the accused he deposed falsely. 

It appears that the charge was framed against the accused Appellant by the Trial Court to the effect that
আপনি আসামী ১৫.০৪.২০০৬ ইং তারিখ রাত ১.৩০ ঘটিকায় সময় মতলব থানাধীন ভেংগুরভিটি গ্রামাস্থ আপনি আসামীর বসত বাড়ীর বসত ঘরে আপনার স্ত্রী ভিকটিম বেবী আকতারকে মুখ মন্ডল মাটিতে চাপিয়া ধরিয়া গলা টিপিয়া হত্যা করেন।

To prove the said charge prosecution examined as many as 11 (eleven) witnesses out of which P.W.2 is the informant and brother of the victim Baby Akter who deposed that immediately after occurrence he came to the place of occurrence and found the dead body of his sister laying in the house of the accused and also found blood on the nose and eyes and mud on the face of her dead body. The accused made extrajudicial Confession for committing the offence of killing the victim. He found the accused in his house and these materials facts also corroborated by the other P.Ws 1, 3 to 8 in their evidences who are private witnesses who went to the place of occurrence immediately after occurrence although the said prosecution witnesses were neighbore and relatives of the informant as well as deceased baby Akter. Their evidence shows as practical and usual instead of mechanical and considering their evidences along with the evidence of P.W.9 investigating officer who proved the sketch map showing place of occurrence without any denial from the defence as mentioned above at the house of the accused. P.W.1 to 8 categorically stated that they found the dead body of Baby Akter on the floor of the house of the accused person and these material facts also admitted by D.W.1 and D.W.2 and therefore it is well proved that the occurrence took place in the house of the accused as well as in the custody of her husband, Accused Appellant on the said date and time of occurrence.

It further appears that the P.W.9 the investigating officer held surathal on the next morning of the occurrence and found  to the effect that “ইহাতে সন্দেহ হয় যে, ভিকটিম বেবী আক্তারের স্বামী মফিজউদ্দিন তাহার আরও সহযোগী সহ রাত্রির যে কোন সময় বেবী আক্তারকে বালুর মধ্যে মুখ মন্ডল চাপিয়া ধরিয়া হত্যা করিয়া থাকিতে পারে’’

and on the said date post Mortem held by the Doctor P.W.11 found the injuries on the face and cyanosed up to chest wall with presence of mud and dust on the face and nostrils and found injury at the right side of the face and opined that death was due to asphyxia resulting from combined effect of strangulation as well as suffocation which was antimortem and homicidal in nature and the evidence of P.W.11 Dr. who held post mortem was not shifted by cross examination in any manner.  Considering the surathal Report of the victim post Mortem report along with the depositions of prosecution witnesses we find  consistency to prove the charge of killing the victim Baby Akter by her husband the accused appellant while she was in the custody of the Appellant as in the time and place at the residence of Appellant by strangulation and suffocation by her husband the Appellant. It also appears that the accused was arrested immediately after occurrence from his house by the police of concern police station P.W.9 and he made a confession on the next day before the Magistrate 1st class who recorded the confessional statements as per Law and Rules by P.W.10 and that  confessional statement of the appellant was proved .

After analysis the evidence set out above it appears that the prosecution has satisfactorily proved that the victim Baby Akhter died as a result of strangulation on the date, time and the place as alleged by the prosecution. Such evidence has been furnished by almost all the witnesses including P.W. 11 the doctor who conducted the post mortem examination on the person of the deceased. Death in his opinion, was due to asphyxia resulting from combined effect of strangulation as well as suffocation which was antimortem and homicidal in nature. In his opinion it is consisted with the description of the injury and inquest report ext. 3. We, therefore, find that the victim Baby Akhter died due to strangulation.  As to the responsibility for causing the murder there is no direct evidence of the occurrence. The prosecution sought to prove the charge on certain circumstantial facts as well as the confessional statement of the appellant Ext. 6 Admittedly the appellant and the victim Baby Akhter were husband and wife. The evidence of PWs. 1,2,5,7 and 8 disclosed that the victim met her death while she was living with her husband in the same house of the accused. It was also appears that the dead body of the victim was found in the house of the appellant as disclosed by the P.Ws. 1-8 and this material facts also admitted by the witnesses of the accused D.W.1 and D.W.2  and said witnesses also deposed that the accused was present there. The death of the wife being caused by strangulation as already found by us, it was quite natural for the husband to send an information to the Police station. The accused did not take any step to that aspect. On the other hand, it appears that immediate after the occurrence  while P.Ws. 2,5,6,7 and 8 went to the house of the place of occurrence at that time the accused disclosed that he committed the murder of his wife Baby and similarly the accused  made confession in presence of  P.Ws. 1, 3 and 4 by sitting at the police station that he committed murder of the victim by strangula-tion and the evidences of D.W. 1 disclosed that he saw the dead body of the victim Baby on the night and D.W.2 also admitted during existence the relationship as husband and wife the dead body of victim Baby found in the house of the accused Mofiz. So we find the murder of the victim Baby Akhter took place while the accused appellant remained as husband wife with the victim and was in the same house and that house owned by the accused Mofiz. Ordinarily an accused has no obligation to account for the death for which he is placed on trial. It appears that as the murder of the wife Baby took place in the custody of her husband appellant in the same house. Then the appellant was under an obligation to explain how his wife had met with her death. No explanation was made by the appellant neither in the cross examination nor in the examination under section 342 of the Code of Criminal Procedure and in the absence of any explanation which is required under section 100 of the Evidence Act. Thus it seems none other than the husband was responsible for causing the death of Baby Akhter. In addition to the said circumstantial facts there is the confessional statement of the accused appellant marked as Ext. 7. The said statement has been quoted as under:-
“আমার নাম মফিজ উদ্দিন মফিজ। আমিসৌদি আরবে ছিলাম। দেড়/ দুই মাস আগেদেশে ফিরি । গত ১৪/৪/২০০৬ তাং রাত ১/৩০ ঘটিকায় আমার স্ত্রীর সাথে টাকা পয়াস নিয়ে কথা কাটাকাটি হয় । এক পর্যায়ে আমি তাকে থাপ্পর মারি। সে আমার নিম্মাংগে চাপ দিয়ে ধরে। আমি তাকে গলায় চেপে মাটিতে চাপ দিয়ে ধরি। আমি ভাবি নাই সে মারা যাবে|”

It was recorded by P.W.10 the Magistrate 1st Class at that relevant time. The confessional statement appears to have been made in the prescribed form. The Magistrate stated that he recorded the said statement after observing all the legal formalities in recording as required under law and gave 3 hours time to the maker of the statement for his reflection. It also transpires from Ext. 6 that the maker of the statement was placed in charge of a peon in his chamber and there was no police. He explained to the confessing person that he was not bound to make the confession and if he does so that may be used against him. This P.W. also said that the confessional statement of the appellant appeared to him to be voluntary and true and he read it over to the accused who put his signature admitting that it had been correctly recorded and he also stated that in course of recording he did not see any injury on the body of the accused and the accused also did not state any allegation of torture to him and the incurable confession was made at the first instance while appears before the Magistrate without taking him any remand for the said confession Ext. 7 is very much consistent with her surathal report and post Mortem report. That the confessional statement in the earliest point of time, corroborated in respect of  place, time and manner of occurrence so confession was also proved as voluntary and true, though subsequently the appellant filed an application for retraction of his confession. In his application he stated that due to fear and torture he made confession. On the other hand P.W. 10 Magistrate who recorded the said statement who was not suggested to that effect by the defence and in such situation the defence can not be curable. We considered the confessional statement itself as it appears that the confessional statement made voluntarily. We also considered the contention of the confession it shows that there was a altercation regarding monetary transaction between husband and wife and the monetary transaction is supported and corroborated by PW 2 the informant and other pws 3 to 8. and as well as D.W 1 and 2 and altercation took place between husband and wife in the night at the date of occurrence in the residence of the accused and gave fist thump blow subsequently the victim caught hold the lower part of the accused and then he strangulated her throat and he also stated that he did not think over that his wife would met her death. This confession shows that even no deadly weapon has been used no prior intention to kill his wife Baby Akter is available in the facts of the case and there was no pre-medition to kill the victim. The killing took place through altercation due to monetary transaction between husband and wife and also from sudden fight between husband and wife and in such facts and circumstance as discussion above we find that the accused Appellant had no prior intention to kill his wife Baby Akter and there was no pre-medition to kill the victim even no deadly weapon has been used for causing grievous injury upon the victim. It is also noticed that immediately after occurrence the mother of the appellant informed the sister in Law of the victim P.W.5 jaynal Abadin and the Appellant was all along with the dead body till his arrest and he made confession instead to make any attempt to concealment the dead body as well as concealment to himself by making absconding or otherwise move over to some other place. Admittedly they have a child of 5 years. In view of the facts and attending circumstances of the case, we find that it was not a cool headed and premeditated murder, rather the fact of the case as disclosed that the incident took place out of altercation due to monitory transaction which has taken into such circumstances to commit the alleged offence of murder. When intention to kill is Lacking and therefore it is not a culpable homicide amounting to murder and hence alleged offence of murder does not fall within the provision of section 302 of the Penal Code rather the alleged offence comes under the provision of section 304 part II of the penal code.

In the result the appeal is dismissed by altering the conviction and sentence to the effect that the accused Appellant Md. Mofiz Uddin @ Mofiz is convicted under section 304 part II of the penal code and sentencing him to suffer rigorous imprisonment for 10(ten) years only instead of section 302 of the Penal Code.

Send down the lower court records at once.

Ed.