Md. Nazrul Islam Vs. The State, 3 LNJ (AD) (2014) 67

Case No: Jail Petition No. 17 of 2010

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Helaluddin Mollah,Mr. Md. Shahrowardi,,

Citation: 3 LNJ (AD) (2014) 67

Appellant: Md. Nazrul Islam

Respondent: The State

Subject: Commutation of Sentence,

Delivery Date: 2012-12-06


APPELLATE DIVISION
(CRIMINAL)
 
Md. Muzammel Hossain, C. J.
Md. Abdul Wahhab Miah, J,
Nazmun Ara Sultana, J,           
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J.


Judgment on
06.12.2012
  Md. Nazrul Islam
. . . Petitioner.
-Versus-
The State
. . . Respondent
 

Code of Criminal Procedure (V of 1898)
Section 376
In the instant case, when the matter was heard by the High Court Division the convict had been in the condemned cell for less than five years, and hence the plea was rejected. However, the convict has now been in the condemned cell for more than 9 years due to no fault of his own. Thus the length of period by now can be taken as a circumstance, when there are other extenuating circumstances, to commute the sentence of death to one of imprisonment for life. Justice will be sufficiently met if the sentence of death is commuted to one of imprisonment for life. Accordingly, the sentence of the convict Md. Nazrul Islam is modified to imprisonment for life. . . .(25 and 26).


State Vs. Kalu Bepari, 43 DLR 249; Abdul Motaleb Howlader Vs. State, 5 MLR (AD) 362; Ilias Hussain (Md) Vs. State, 54 DLR (AD) 78; Shamsuddin Vs. State, 45 DLR 587; Abed Ali Vs. State, 42 DLR (AD) 171; Nowsher Ali Vs. State, 39 DLR 57; Abdul Bashir alias Bashu Vs. State, 56 DLR (AD) 207; Giasuddin and another Vs. State, 54 DLR (AD) 146; Ananta Kumar Karan Vs. State, AIR 1962 Calcutta 428 ref.
 
For the Petitioner: Mr. Helaluddin Mollah, Advocate

For the Respondent: Mr. Md. Shahrowardi, Deputy Attorney General

Jail Petition No. 17 of 2010
 
JUDGMENT

Muhammad  Imman  Ali, J.

This petition for leave to appeal at the instance of the condemned petitioner Md. Nazrul Islam is directed against the judgment and order dated 03.12.2007 passed by the High Court Division in Death Reference No. 27 of 2003, which was heard along with Criminal Appeal No.786 of 2003 and Jail Appeal No.191 of 2003 accepting the reference, dismissing the criminal appeal and jail appeal.
 
The prosecution case, in brief, is that Milon Akhter (deceased), younger sister of the informant was given in marriage to condemned prisoner Md. Nazrul Islam (henceforth referred to as “the accused”), 6 years back. After 6 months of the solemnization of marriage, the accused went to Saudi Arabia to work and stayed there for 2 years. Thereafter, he returned home and the couple was blessed with a son, named Nazmul Islam aged about 4 years at the time of the occurrence. The accused used to beat his wife now and then on the ground that his wife used to lead an immoral life and she was a woman of questionable character. Milon Akhter (deceased) used to live in the same mess with her husband, father-in-law, mother-in-law, brother-in-law, elder brother-in-law and son. The informant used to live on the same plot adjacent to the dwelling house of her sister Milon Akhter (deceased). On 12.04.2002 at 00.15 a.m., the accused started beating his wife in the northern room of their east faced half-brick-built house. At that time, his wife raised alarm and Tajul Islam, brother-in-law (fvmyi) of the deceased, Afia Khatun, mother-in-law and other people went there, but the accused bolted the door from inside and tied up the hands and legs of his wife and dealt boti dao blows on her face, chest, wrist, left thigh, abdomen and on her arms causing severe bleeding injuries and killed her by cutting her throat. Nazma Rahman (the informant)(P.W.1), Md. Tajul Islam (P.W.2), Abdul Jalil (P.W.7), Md. Babul Mia (P.W.5) and others saw the occurrence through the glass window. They informed the matter to Uttara Police Station and accordingly police came to the place of occurrence. The accused opened the door and police arrested him from the room. He made an extra-judicial confession before the public that he killed his wife. Police also recovered the blood stained boti dao from the place of occurrence. The informant lodged the First Information Report (F.I.R.) on 12.04.2002 before the Officer-in-Charge of Uttara Police Station, D.M.P., Dhaka against the accused under section 302 of the Penal Code. Accordingly, Uttara P.S. Case No.25 dated 12.04.2002 corresponding to G.R. No. 725/2002 was started.      
 
The Investigating Officer took up the case for investigation. He visited the place of occurrence, prepared the sketch map with separate index, prepared inquest report, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure. After completion of investigation he submitted Charge-sheet No.145 dated 16.06.2002 under section 302 of the Penal Code against the accused.
 
The case was ultimately transferred to the Court of Bicharok, Druto Bichar Tribunal No.4, Dhaka where it was numbered as Druto Bichar Tribunal Case No.2 of 2003.
         Charge was framed under section 302 of the Penal Code against the accused and read over and explained to him, to which he pleaded not guilty and claimed to be tried. During trial the prosecution examined as many as 9 (nine) P.Ws. who were cross-examined by the defence, but the defence did not examine any witness.
 
The defence case, as it transpires from the trend of cross-examination was that the accused was innocent. The informant, who was the step-sister of the deceased, had illicit connection with the accused, who used to send money to her from Saudi Arabia, and with the help of hired people she had the victim killed with an ulterior motive to grab the money.
 
After close of recording of evidence, the accused was examined under section 342 of the Code of Criminal Procedure. He repeated his innocence.
 
The Bicharok of the Druto Bichar Tribunal, Dhaka after hearing the parties and upon consideration of the evidence and materials on record convicted the accused under section 302 of the Penal Code and sentenced him to death by his judgment and order dated 19.03.2003.

Reference under section 374 of the Code of Criminal Procedure was made to the High Court Division for confirmation of the sentence of death, which was numbered as Death Reference No.27 of 2003.

Before the High Court Division the Criminal Appeal No.786 of 2003 with Jail Appeal No.191 of 2003 were preferred by the condemned petitioner, which were heard along with the death reference. By the impugned judgment and order, the High Court Division accepted the reference and dismissed the criminal appeal with jail appeal and confirmed the judgment and order of conviction and sentence passed by the Bicharok of the Druto Bichar Tribunal No.4, Dhaka. Hence, the condemned prisoner has filed the instant Jail Petition No.17 of 2010 before this Division.

Mr. Helaluddin Mollah, the learned Advocate appearing on behalf of the petitioner submits that admittedly the victim was the petitioner’s wife who met her death inside his house. But no one saw the accused inflicting the injuries upon the victim which resulted in her death. He further submits that according to the evidence of the witnesses the petitioner after returning from abroad had argument with his sister-in-law, the informant, regarding money which he had remitted from abroad and he was occasionally abnormal. He also pointed out that the condemned petitioner has been in the condemned cell since 19.03.2003 for about 9 years suffering the pangs of death while his appeal and death reference was pending before the High Court Division. He finally submits that the petitioner has a child who was aged four years at the time. He prays that in view of the extenuating circumstances, this Division will have mercy and commute the sentence of death. 

Mr. Md. Shahrowardi, the learned Deputy Attorney General appearing on behalf of the State submits that the occurrence took place inside the bedroom of the petitioner where he brutally killed the victim who was his wife. He further submits that in the facts and circums-tances of the case, the petitioner was rightly sentenced to death by the trial Court and the reference was accepted by the High Court Division and he does not deserve any leniency from this Division.

We have considered the submissions of the learned Advocates for the parties concerned and perused the impugned judgment and order of the High Court Division and other connected papers on record.   
    
It is in evidence that the victim was killed by the accused inside her bedroom and, according to the evidence of the mother and brother of the accused, the door of the room was locked from inside. The door was also found locked from the outside to prevent his escape before arrival of the police. The police arrested the condemned petitioner from the place near the victim’s dead body. The police also seized the blood stained dao which the condemned petitioner had used to kill his wife. According to the post mortem report and the evidence of P.W.9 the Doctor, there were as many as eight ‘chop wounds’ found on various parts of the body of the victim. In the opinion of the Doctor, the death was due to haem-orrhage and shock following injuries to the neck and different parts of the body with the heavy sharp cutting weapon. The occurrence was corroborated by the evidence of the mother and brother of the condemned petitioner as well as other independent witnesses. In view of such evidence the conviction under section 302 of the Penal Code as found by the trial Court and affirmed by the High Court Division, cannot be faulted.

With regard to the sentence of death awarded by the trial Court and confirmed by the High Court Division, the learned Advocate appearing on behalf of the petitioner begs mercy of this Court and prays for commutation of the sentence of death.

In reaching its decision, the High Court Division relied upon a number of decisions of this Division as well as the decision of the High Court Division in the case of State Vs. Kalu Bepari. In each of the cases referred the victim was the wife of the accused. The pertinent question in those cases was whether it was established by evidence that the accused person was in his house where his wife was murdered, failing which he could not be saddled with any onus to prove his innocence. If it could be established by evidence that the accused was in his house at the material time then the Court would consider his failure to adduce explanation or the falsity of his explanation along with other incriminating circumstances. The High Court Division relied upon the cases of State Vs. Kalu Bepari reported in 43 DLR 249; Abdul Motleb Howlader Vs. The State, 5 MLR(AD)362; Ilias Hussain (Md) Vs. The State, 54 DLR (AD)78 and Shamsuddin Vs. The State, 45 DLR 587 which in turn relied upon State Vs. Kalu Bepari (cited above) and held that the accused (petitioner before us) was responsible for causing the death of his wife.

The High Court Division then considered the circumstances in which the condemned petitioner killed his wife taking into account the fact that “the accused inflicted multiple sharp chop injuries on various parts of the body of the deceased. Before chopping, the accused tied up the hands and legs of his wife with clothes. Thereafter, he dealt boti blows and slaughtered his wife. All these circumstances proved that the accused had all the intention to kill his wife”. This led the High Court Division to the conclusion that the act of the accused falls within the mischief of murder as provided under section 300 of the Penal Code.

At the appeal hearing before the High Court Division the learned Advocate for the accused-appellant pleaded that the accused had been languishing in the condemned cell for 4 years and 9 months which was not accepted by that Division as a ground for commuting the sentence of death. In this regard the High Court Division relied upon the decision in the case of Abed Ali Vs. The State reported in 42 DLR (AD) 171 where their Lordships referred to the case of Nowsher Ali Vs. State, 39 DLR 57, wherein it was held that “the delay in execution of death sentence for want of confirmation cannot by itself constitute mitigating circums-tance but abnormal and excessive delay of 6 years may be considered for commutation of death to life imprisonment”. However, in the facts presented in Abed Ali’s case their Lordships felt obliged to sustain the order of conviction and sentence. 

It is noteworthy that the High Court Division also referred to the decision in the case of Abdul Bashir alias Bashu Vs. The State reported in 56 DLR (AD)207 and the case of Giasuddin and another Vs. The State reported in 54 DLR (AD)(2002)146 where the delay was not accepted as a ground for commutation of sentence. 

In the latter case this Division observed that “these two condemned prisoners committed a cold-blooded murder in broad daylight and the materials on record clearly proved that they hatched a plan to commit murder and with that intention they were following the movements of the deceased … … their act of commission of murder was premeditated, cold-blooded and so brutal that they deserve no mercy and justice demands adequate and proper punishment which has been awarded”.

In the instant case the High Court Division observed that before the victim was done to death, the husband tied up her hands and legs with clothes and killed her by inflicting indiscriminate blows by boti dao. He closed the door of the room from inside so that others could not come to her rescue. Hence, the High Court Division found that the accused deserved no sympathy from the Court.

The facts of the instant case disclose a number of mitigating aspects which have come to light:(i) the first and foremost is the fact that there is a child of the accused who was four years old at the time of occurrence in 2002; (ii) The age of the accused who was twenty seven years old at the time of occurrence; (iii) the fact that the mental state of the accused had been affected due to squandering of his hard earned money by family members, principally his sister-in-law who was the victim’s step sister; and (iv) the length of time the accused has spent in the condemned cell since the date of judgment of the trial Court on 19 March 2003, amounting to 9years.

With regard to the first mitigating circumstance mentioned above, reference may be made to the judgement delivered by B.B. Roy Chowdhury, J. when his Lordship was presiding a High Court Division Bench, where the existence of wife and children swayed their Lordships to commute the sentence of death to one of imprisonment for life. In similar fashion in the case of Ananta Kumar Karan Vs. the State reported in AIR 1962 Calcutta 428, their Lordships noted that large number of incised injuries were inflicted on the deceased by a sword and the accused absconded for a number of years; their Lordships observed that although the assault was brutal in nature, the fact remains that the prosecution did not prove the motive for the assault and killing. The sentence of death was commuted to imprisonment for life on account of the age of the appellant and the fact that he had a wife and a number of children living which in their Lordships’ view constituted an extenuation of the offence which at first struck them as brutal beyond word.

I have already referred to the age of the accused being a ground for commutation of sentence while mentioning the case of State Vs. Tasiruddin reported in 13 DLR 203 which was referred by this Division in the case of Jail Petition No.15 of 2010. From the cases referred in the Tasiruddin case it can be seen that age of the offender upto 27 years has been considered as a ground for commutation of the sentence of death.

The aspect of the mental state of the accused as disclosed by the evidence of P.Ws. 2 and 3 coupled with the fact that no motive for the murder was disclosed by the prosecution, can be taken as an extenuating fact for reducing the sentence, as was done in the Ananta Kumar Karan case mentioned above.

Lastly, with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death. It is noted that the High Court Division in rejecting this plea referred to the case of Abed Ali Vs. the State, cited above. In that case this Division held that delay in execution cannot by itself constitute a mitigating circumstance, but mention was made of the Nowsher Ali case (cited above) where it was observed that a delay of six years may be considered for commutation of death sentence to life imprisonment (emphasis added). In the instant case, when the matter was heard by the High Court Division the convict had been in the condemned cell for less than five years, and hence the plea was rejected. However, the convict has now been in the condemned cell for more than 9 years due to no fault of his own. Thus the length of period by now can be taken as a circumstance, when there are other extenuating circumstances, to commute the sentence of death to one of imprisonment for life.

Considering the above facts and circum-stances, we are of the view that the judgment of the High Court Division be upheld so far as it relates to conviction of the accused under section 302 of the Penal Code. The Jail Petition is therefore dismissed. However, in the light of the discussion regarding sentence, we are of the view that, in the facts and circumstances of the case, justice will be sufficiently met if the sentence of death is commuted to one of imprisonment for life. Accordingly, the sentence of the convict Md. Nazrul Islam is modified to imprisonment for life.

         Ed.