The State Vs. A. Awal [4 LNJ (2015) 190]

Case No: Death Reference No. 105 of 2008

Judge: Abdur Rob,

Court: High Court Division,,

Advocate: Bishmadeb Chakraborty,Fazlul Haque Khan Farid,Mr. Md. Atiqul Hoque,Mr. Nizamul Hoque Niam,Mrs. Hasna Begum,,

Citation: 4 LNJ (2015) 190

Case Year: 2015

Appellant: The State

Respondent: A. Awal

Delivery Date: 2014-02-20


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Shahidul Islam, J.
And
Abdur Rob, J

Judgment on
20.02.2014
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The State
-Versus-
A. Awal
. . .Condemned-Prisoner
(In Death Reference No. 105 of 2008)
with
A. Awal
. . .Convict-appellant
-Versus-
The State
. . .Respondent
(In Criminal Appeal No. 7514 of 2008)
with
A. Awal
. . .Convict-appellant
-Versus-
The State
. . .Respondent
(In Jai Appeal No. 1024 of 2008)
 
Evidence Act (I of 1872)
Sections 8
Commission of crime can be proved by circumstantial evidence, as it is very much difficult to procure false and tutored circumstance. 
There is no law that commission of a crime must by witnessed by witnesses and they are to stand in witness box to prove the crime. Commission of crime can be also, well proved by the circumstantial evidence. Circumstantial evidence is more cogent and convincing than the ocular evidence. It is correctly said that witnesses may tell a lie and it is not difficult to procure false, tutored and biased witness but it was very much difficult to procure circumst-antial evidence. . . .( 43)
 
Nari-O-Shishu Nirjatan Damon Ain (VIII of 2000)
Section 11(Ka)
Demand of dowry from the side of husband or his family is the pre-condition to attract section 11(ka) of the Ain of 2000.
In order to attract section 11(Ka) it is to be proved that death was caused in view of demand of dowry put forward from the side of husband or father, mother, guardian, or relation of the husband or any person for and on behalf of husband. . . . ( 48)
 
Code of Criminal Procedure (V of 1898)
Section 9
Nari-O-Shishu Nirjatan Damon Ain (VIII of 2000)
Section 26
A Tribunal trying a case under the Ain of 2000 is, also, a Court of District and Sessions Judge. When a Judge sits in a Tribunal or Special Tribunal Case holding trial of an offence under a Statute or Special Statute is a Tribunal or Special Tribunal and a Judge when sits in Sessions Case trying an offence punishable under Penal sections of Penal Code sits as Sessions Judge.  . . . (53)
 
Penal Code (XIV of 1860)
Section 302
Nari-O-Shishu Nirjatan Damon Ain (VIII of 2000)
Section 11(Ka)
Fate of the convict-appellant and result of the case would have been the same whether it would have been tried either as a Nari-O-Shishi case by the Tribunal or as a Sessions case by learned Sessions Judge of Tribunal and if section 11(ka) of the Ain, 2000 was not attracted in respect of convict-appellant, the offence of section 302 of the Penal Code could be very much pressed into service against the convict-appellant and he could be conveniently tried and convicted for offence of section 302 of the Penal Code.    . . .(54)
 
Penal Code (XIV of 1860)
Sections 53 and 302
The object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and Court responded to the society’s cry for justice. Under section 302 of the Code, though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice.           . . .(61)
 
Asiman Begum Vs. State represented by Deputy Commissioner, 51 DLR(AD) 18; State Vs. Abul Kalam, 5 BLC 230; Asiman Begum Vs. State, (Supra); Shibu Pada Acharjee Vs. State, 56 DLR 285 and Shibupada Acharjee Vs. State (supra) ref.
 
Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Md. Atiqul Hoque A.A.G. and
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State (In Death Reference No. 105 of 2008)
Mr. Fazlul Huq Khan Farid, Advocate
. . . For the convict-appellant
Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Atiqul Hoque A.A.G. and
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State (In Criminal Appeal No. 7514 of 2008)
Mrs. Hasna Begum, Advocate, Advocate
. . . For the convict-appellant
Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Md. Atiqul Hoque A.A.G. and
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State (In Jail Appeal No. 1024 of 2008)
 
Death Reference No. 105 of 2008 with Criminal Appeal No. 7514 of 2008 and Jail Appeal No. 1024 of 2008
 
JUDGMENT
Abdur Rob, J:
 
This reference under section 374 of the Code of Criminal Procedure, shortly, “the Code” has been made by the learned  Judge, Nari-O-Shisu Nirjatan Daman, Tribunal, Tangail (hereinafter referred to as Tribunal) for confirmation of death sentence imposed upon accused A. Awal, on his conviction under section 11(Ka) of the Nari-O-Shisu Nirjatan Daman Ain, 2000 (for short, Ain of 2000) awarded by the judgment dated October 14, 2008 passed in Nari-Shisu Case No. 39 of 2003 arising out of Shakhipur Police Station Case No. 21 dated August 31, 2002.
 
Deceased Hamida Akter shall be described hereinafter as victim of crime Hamida. Convict A. Awal shall be described as convict appellant.
 
The prosecution case, in brief, is that one Md. Abdul Hye (P.W.1) as informant lodged a First Information Report, shortly, “FIR” on August 31, 2002 with Shakhipur Police Station against the appellant alleging, inter-alia, that the informant’s daughter Hamida Akter was married to accused Awal about 7 years ago and the victim gave birth to a son. The informant gave everything which the accused would want for the happiness of the victim. Hamida worked as computer operator of the Registry office and the accused was a school teacher. On August 30, 2002 at around 11.30 p.m. the accused demanded Tk. 2 lacs as dowry from victim Hamida which she refused accused Awal hit her on the head with a hammer. The blow of the hammer fractured the skull of the victim and her brain spilt out. On hearing hue and cry the neighbors rushed to the spot. The neighbors considering critical condition of the victim, she was taken to shakhipur Hospital. The neighbors restrained the accused to flee. The informant went to hospital and the victim was taken to Dhaka for better treatment. The doctors declared her death. The informant went to Shakhipur Police Station with the dead body of the victim Hamida and lodged the FIR.
 
On the basis of the aforesaid FIR Shakhipur Police Station case No. 21 dated August 31, 2002 was started under section 11(ka) of the Ain, 2000.
 
The Investigating Officer took the case for investigation; he visited the place of occurrence and prepared the Inquest Report of the dead body in presence of witnesses. He duly sent the dead body of the victim to the General Hospital, Tangail for post mortem. Post mortem of the victim was performed by Dr. Md. Abdul Hamid.
 
Ultimately, on conclusion of investigation the Investigating Officer submitted charge-sheet against the accused appellant under section 11(ka) of the Ain, 2000.
 
Later, the case was duly sent to the Tribunal for trial. Learned Judge of the Tribunal on taking cognizance of the offence against the accused under section 11(ka) of the Ain, 2000 framed charge against him under the said provision of law. On being read over and explained the charge to the accused he pleaded not guilty and claimed to be tried.
 
During the course of trial the prosecution produced as many as 17 witnesses including the Medical Officer and the Investigating Officer. However, the defense but did not adduce any defense witness. The Tribunal after considering the evidence and materials on record found the accused guilty under section 11(Ka) of the Ain, 2000 and sentenced him to death by its judgment and order dated October 14, 2008.
 
Death sentence matter has been referred to this Court by way of a Reference by Tribunal and the Reference has been noted as Death Reference No. 105 of 2008. Convict A. Awal presented a petition of Appeal from Jail which has been numbered as Jail Appeal No. 1024 of 2008. He also carried a petition of Appeal being registered as Criminal Appeal No. 7514 of 2008.
 
Death Reference, Jail Appeal and Criminal Appeal are heard together and disposed of by this single judgment.
 
Mr. Bishmadev Chakrabortty, learned Deputy Attorney General with Mr. Md. Atiqul Hoque, the learned Assistant Attorney General appeared in support of the Reference. While Mr. Fazlul Huq Khan Farid, learned Advocate appeared on behalf of the condemned-prisoner. Ms. Hasna Begum, learned Advocate appeared in support of Jail Appeal.
 
Mr. Bishmadev Chakrabortty, the learned DAG, submits that the prosecution had successfully established his case beyond reasonable doubt and that the ingredients of the aforesaid special provision of law having been attracted the Tribunal duly found that the condemned prisoner had committed the offence as alleged. He also submits that reason to disbelieve the witnesses nor the defence could shake the credibility of the witnesses. The story of the case is clearly suggests the involvement of the convict A. Awal with the offence, that is, the accused has tainted his relationship with the victim over demand of dowry which the father of the victim was unable to pay. In this regard learned DAG contended that the victim was an innocent village house wife who did not have any enmity with anyone and the defence has also failed to produce any evidence on that count, the alleged occurrence also took place after about seven years of the marriage as meted out by the accused. Learned DAG insisted that a close reading of the statement of the P.Ws. and the confessional statement of the accused A. Awal proved that he is solely responsible for the murder of victim Hamida. He finally submits that the Tribunal committed no error of law or facts in passing the judgment of conviction and sentence against the convict and, therefore, there is no justifiable reason to interfere with the impugned judgment and order passed by the Tribunal.
 
Mr. Fazlul Huq Khan Farid, learned Advocate took us through the FIR, and the entire evidence on records, including the materials exhibits and submitted that the Tribunal fell into error of law in finding the accused guilty of the charge levelled against him, for the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submits that the allegation of killing the victim Hamida is not believable and the accused has been implicated by the informant out of suspicion. Considering the same the Tribunal came to its findings merely upon conjectures and surmises, not upon legal evidence on records. The taintive relationship sought to be proved as a motive of the offence has not been proved by cogent and credible evidence. He further submits with emphasis that the sentence of death passed upon the accused is extremely harsh and too severe. Death sentence, he added, should not be passed as of routine and that this is not a case in which sentence of death is warranted.  
 
Now, in order to appreciate the arguments advanced by the learned Advocates we would now discuss the evidence adduced by the prosecution in this case.
 
P.W 1 Md. Abdul Hye the father of the victim was examined as informant. His daughter Hamida was married to accused Awal about 7 years ago. After marriage they passed their peaceful conjugal life and the victim gave birth to a son. The informant gifted the accused everything he asked for the happiness of the victim. But the accused often demanded dowry from the victim Hamida and began torturing her. Hamida worked as computer operator of the Registry office and the accused was a school teacher. On August 30, 2002 at around 11.30 p.m. the accused demanded Tk. 2 lacs as dowry from the victim Hamida which she being refused accused Awal hit her on the head with a hammer. The blow fractured the victim's  skull and her brain spilt out. On hearing hue and cry the neighbors rushed to the spot. Considering the critical condition of the victim, the neighbors took her to Shakhipur Hospital. The neighbors restrained the accused from fleeing. The informant went to the hospital took the victim to Dhaka for better treatment. The doctors declared her dead. The informant went to Shakhipur Police Station with the dead body of the victim Hamida.
 
The accused was handed over to the police and made a confessional statement under section 164 of the code where he admitted that he had murdered the victim. The Sub-Inspector of Police prepared a seizure list of blood stained hammer, one blood stained pillow with its cover and blood stained small pillow and another blood stained cover. He lodged the FIR. He identified the FIR and his signature thereon as exhibits 1 and 1 ka respectively. In his cross-examination he denied that it was not a fact that the accused never demand dowry from him or from his daughter or no such occurrence happened or that it was only an accident or that the accused was arrested by the police and compelled to make confessional statement after being tortured.
 
P.W. 2 Md. Abu Bakar Siddik stated that both the parties are known to him. The occurrence took place on August 30, 2002 at around 11.30 p.m. She is the daughter of the informant. Hamida married accused about seven years ago. The accused tortured Hamida often for money and once the victim Hamida went to her father's house after being assaulted. On the date of occurrence the accused demanded Tk. 2,00,000/- as dowry and Hamida refused to give the money. The accused hit her with a hammer. Hamida became unconscious and on the way to Dhaka, she died. During investigation he was examined by the police. 
 
P.W. 3 Anwar Hossain stated that he is a farmer and both the parties are known to him. He is an uncle (j¡j¡) of the victim Hamida.  She was killed on August 30, 2002 at around 11.30 p.m. He identified the accused Awal. On the date of occurrence on August 30, 2002 at around 11.00/11.30 p.m. he was returning  along with Anisur Rahman and Rabeya from a relative's house when they reached the house of accused Awal, they heard hue and cry from the house. They went to the spot and saw the head of the victim had been smashed open. They also saw the accused standing with a hammer in his hand. On asking they came to know that the accused had demanded Tk. 2 lacs from the victim and when she refused the accused hit her on the head with a hammer. The Doctor advised that the victim be sent to Dhaka for treatment. The informant took the victim to Dhaka. He further deposed that the victim was married to the accused for 7/8 years and at the time of marriage, dowry was paid by the victim's father. The accused demanded more money from victim who because of which the accused murdered  Hamida.
 
In cross-examination he denied that it was not a fact that he did not tell the Sub-Inspector of Police that on the date of occurrence accused Awal had demanded Tk. 2,00,000/ from the victim or that the accused never demand dowry from the victim.
 
P.W. 4 Anisur Rahman stated that he is a deed writer. The informant is his brother-in-law and the victim is his niece. The accused Awal was married to victim Hamida about 5/7 years ago. At the time of marriage, dowry was given to the accused Awal. Thereafter, Awal demanded more money. When the accused demanded more money, the victim Hamida refused to give because of which the accused Awal tortured Hamida. He further deposed that on the date of occurrence, he went to visit relatives at village Kalidas along with Anowar and Rabiya. On the way back when they reached the house of the accused Awal, he heard hue and cry. When he entered the house, he saw  that  the victim was lying in a pool of blood with her skull smashed open. He further deposed that he saw a hammer in the hand of  the accused. Later he came to know that Awal had demanded Tk. 2,00,000/- from Hamida who refused to pay and the accused hit her on the head with a hammer. Hamida was taken to Shakhipur Hospital and later to Dhaka for treatment where she died. He went to the Shakhipur Police Station and the Officer-in-charge prepared the inquest report of the dead body. He put his signature on the inquest report.
 
In cross examination he stated  that it was not a fact that  on the date of occurrence  he along with Rabeya and Anowar went to  village of Kalidas to the house of a relative or not a fact that   on hearing hue and cry he went to the house of Hamida or  he saw her in the bed or did not tell the Sub-Inspector of police about seeing a hammer in the hand of Awal or not a fact that  he did not  tell the Sub-Inspector of Police that when Awal demanded Tk. 2 lacs Hamida refused it to pay because of which Awal hit Hamida on the head with a hammer or not a fact that he deposed  falsely to a pre-planed case against the accused or not a fact that  there was no such occurrence at that time and he did not go to the house  of Awal.
 
P.W. 5 Firoza stated that she is a female servant and she lived in a nearly house of the victim.  She heard hue and cry and she went to the spot and saw the victim Hamida was taken by a Van to the hospital. The skull of the victim had been smashed open. Hamida was unconscious when she was carried on a van.
 
In cross examination she stated that it was not a fact that she did not tell the Sub-Inspector of police that Awal hit Hamida with a hammer.  It was not a fact that he deposed falsely.
 
P.W. 6 Khadiza, stated that she is the servant at the house of the victim Hamida. The occurrence took place on August 30, 2002 at around 11.00 p.m. The accused often demanded dowry and tortured Hamida.  Once the victim Hamida went back to her father’s house and there was a salish regarding this matter. The accused demanded Tk. 2,00,000/= as dowry from Hamida. When she refused accused Awal  hit the victim with a hammer.
 
In cross examination she stated that it was not a fact that she did not tell the Sub-Inspector of police that the accused  hit Hamida after she had refused to pay the convict.
 
P.W 7 Khaleda Aktar stated that both the parties are known to her. The occurrence took place on August 30, 2002 at about 11-11.30 p.m. She further deposed that she along with victim Hamida were working at the office of the Sub-registrar as Apprentice copier. She also heard that Hamida was murdered by the accused Awal for dowry. She heard the occurrence from a servant of Hamida.
 
In cross examination she stated that it was not a fact that she did not know about the demand of dowry made by the accused. 
 
P.W. 8 Dr. Md. Abdul Hamid stated in his deposition that on August 31, 2002 he performed autopsy of the dead body of victim Hamida as identified by constable 988 Suruzzaman. He found  the following injuries:
  1. One lacerated injury on the vault of the skull 1'' x 1'' brain matter with fracture of right and left parietal bone of the skull.
  2. Bruise on the right shoulder (1''x1'') and upper arm (2'' x 2'')
  3. Bruise on posterior aspect of right elbow (1''x 1'').
মাথার বহিরাবরন-মাথার খুলি এবং মেরুদন্ডের অসিখন্ড সমূহ:
  1. Scalp-Lacerated with blood clot.
  2. Skull-Fracture of right  and left parietal bone.
  3. Injured Blood clot present, brain matter partially out of the skull cavity.
যখমের আরও বিস¹ৃত বিবরণ:
Deep dissection done and described column wise. Fracture of right and left parietal bones were found. Blood clot underneath the scalp and skull cavity found which resists washing with water.
 
He opined that the death was due to haemorrhage and shock which was ante mortem and homicidal in nature.
 
P.W. 9 Rabia Akter stated that accused Awal is known to her. The victim Hamida was her niece. The occurrence took place on August 30, 2002 at around 11/11.30 p.m. On that day, she went to visit relatives along with her younger brother-in-laws Anowar and Anis. On the way back when they reached the house of the accused Awal, they heard hue and cry. When she entered the house, she saw that the victim was lying unconscious in a pool of blood. They saw the accused standing with a hammer in his hand. They learnt that accused Awal had hit the victim on the head. She further deposed that the inquest report of the Police was prepared in her presence and the police also seized the alamat in her presence and her signatures so endorsed thereon.
 
P.W.10 Manik Mia stated that the accused Awal is his cousin. The occurrence took place on August 30, 2002 at around 11/11.30 p.m. He further deposed that he along with his sister Elia Khatun and aunt Hosna Khatun rushed to the house of the accused and on asking the accused came to know that he had murdered his wife victim Hamida.
 
In cross examination he stated that Hamida was taken to the hospital. He did not hear from anyone  that after arrest accused Awal had been tortured by the police.

P.W. 11 Mamtaz  was tendered. 
P.W. 12 Arzu Mia was tendered.
P.W. 13 A. Karim was tendered.
 
P.W. 14 Md. Shamsul Arefin stated that in his deposition that on August 31, 2002 he was Magistrate First Class at Tangail. On August 31, 2002 at around 2 p.m. accused Awal was brought before him for recording confessional statement under section 164 of the Code. He started recording the statement of the accused at around 5.10 p.m. and completed it at 6.15 p.m. and it was read over to the accused.  Thereafter, in his presence the accused put his signature. The statement exhibit 3,  the signature of the accused  and the Magistrate exhibits 3/1 and 3/3 respectively.
 
In cross examination he stated that he himself filled up the Column No. 2 of the Form. Accused Awal was arrested on August 31, 2002 in the morning at around 6.00 a.m. The Officer-in-charge of Shakipur Police Station forwarded him. He denied that it was not a fact that he recorded the statement of accused Awal without observing the provision of law and the statement of the accused Awal was not true and voluntary.
P.W. 15 Monwara Begum was tendered.
 
P.W.16 Md.Akram Hossain Sub-Inspector of Police stated that on August 31, 2002 he was attached to Shakipur Police Station and the case was entrusted to him for investigation. During investigation; he prepared the inquest report of the dead body of the victim. He proved the inquest report as exhibit 4 and his signature so endorsed thereon and was marked as exhibit 4/1. He visited the place of occurrence; he drew sketch map thereof with index and proved the sketch map and index as exhibits 5 and 6 and his signatures so endorsed thereon as exhibits 5/1 and 6/1 respectively. He seized the alamat and prepared seizure lists and proved the same as exhibits 7 and 8 series and his signature so endorsed thereon as exhibit 7/1 and 8/1 respectively. He recorded the statements of five witnesses under section 161 of the Code. He arrested the accused Abdul Awal, produced before the Court of Magistrate. The Magistrate recorded the statement of the accused  Awal under  section 164 of the Code. He duly sent the dead body to the General Hospital, Tangile for autopsy. He also collected the post mortem report of the victim. He further deposed that he got the prima facie case against accused. Awal and on November 8, 2002 he submitted charge sheet against the accused Awal under section 11(ka) of the Ain, 2000. 
 
In his cross examination he stated that he prepared the inquest report on August 31, 2002 at around 8.15 Rafiqul, Shah Alam, Halim were present as witnesses and they put their signatures. He sent Awal to the Magistrate on 31.8.2002 at 12.15. He seized the alamats on the bed of accused Awal on 31.8.2002 at 10.15. He denied that it was not a fact that he did not investigate the case properly.
 
P.W.17 Khadija stated that accused Awal murdered his wife victim Hamida with a hammer and the accused confessed his guilt to all.
 
Most of the P.Ws were thoroughly cross-examined by the defence but nothing was found to doubt their evidence. Moreover, the convict appellant  Awal made confessional statement under section 164 of the Code (exhibit 3) where he disclosed that he hit the victim Hamida with a hammer and killed her.
 
In the case there is no ocular evidence witnessing the commission of crime by convict-appellant. Prosecution relied upon circumstantial evidence in proof of its case. It is always to be remembered that there is no law that commission of a crime must by witnessed by witnesses and they are to stand in witness box to prove the crime. Commission of crime can be also, well proved by the circumstantial evidence. Circumstantial evidence is more cogent and convincing than the ocular evidence. It is correctly said that witnesses may tell a lie and it is not difficult to procure false, tutored and biased witness but it was very much difficult to procure circumstantial evidence.
Prosecution in proof of guilt of offence relied upon the following circumstances:
  1. First Circumstance: Victim and convict-appellant were admittedly husband and wife and they lived in the same house at the time of commission of offence. Ordinarily an accused has no obligation to account for the death for which he is placed on trial but in a wife murder case position of law is altogether different. The murder having taken place while the convict-appellant was living with the victim wife Hamida in the same house, the convict-appellant had an obligation to explain how his wife met with death. From the above, the legitimate conclusion that inevitably flows is that it is the husband convict-appellant who had killed his wife victim Hamida. 
  2. Second Circumstance: Medical evidence: Dr. Md. Abdul Hamid (PW 8) found injuries on her skull and brain matter was partially out, fracture of right and left parietal bone of the skull. Bruise on the right shoulder and upper arm. Bruise on posterior aspect of right elbow. Fracture of right and left parietal bones were also found. Blood clot underneath the scalp and skull cavity were found. Right eye is protruded out and lacerated and congested right mandice.  He recorded opinion that the victim died due to haemorrhage and shock which was homicidal and atemortem in nature. 
  3. Third Circumstance: Convict-appellant did not even lodge any information to police station in respect of the death of his wife victim Hamida or took any medical help for saving the life of the victim and this conduct speaks volumes against him and inference of guilt of convict-appellant can be easily gathered. 
Circumstance noted above do not at all suggest innocence of convict-appellant rather formidably suggest his involvement in the murder of his wife Hamida and all the circumstances taken together unerringly point to guilt of convict-appellant and the irresistible conclusion that flows is that convict-appellant is perpetrator of crime who killed his wife victim Hamida. 
 
The Tribunal found the husband A. Awal guilty of offence of section 11(Ka) of the Ain of 2000 and convicted him thereunder. Consequential sentence was gallows.
 
This brings us to a legal aspect of the matter. Convict-appellant stood charged and convicted for offence of section 11(ka) of the Ain of 2000. Section 11(Ka) enjoins that if the husband of a woman or the father, mother, guardian, relations or any other person on behalf of the husband for dowry causes death to a woman or ventures to cause death or causes hurt or have a try to cause hurt that  husband, father, mother, guardian, relation or the person (a) shall stand sentenced to death for causing death or shall stand sentenced to imprisonment for life for mounting endeavor to cause death and in both the counts he shall be, also, liable to pay fine, and (b) shall be sentenced to imprisonment for life for causing hurt or be sentenced to rigorous imprisonment for a period not more than fourteen (14) years and less than five (5) years for striving to cause hurt and in both counts shall be liable to fine.
 
In order to attract section 11(Ka) it is to be proved that death was caused in view of demand of dowry put forward from the side of husband or father, mother, guardian, or relation of the husband or any person for and on behalf of husband. 
 
In the case putting forward demand of dowry by convict-appellant could not be proved by legal evidence. P.Ws 1, 3 and 4 mother, uncles and PW 9 aunt of victim Hamida, would have been the best witnesses to testify the demand of dowry by convict appellant and they are hearsay witnesses but they did not disclose how they came to know regarding demand of dowry by convict appellant on the date of occurrence.
 
This takes us to a legal debate of fundamental character, which is,
  1. Whether the convict-appellant can be graced with a verdict of acquittal when charge of section 11(Ka) of the Ain of 2000 could not be pressed into service against him.
  2. When a clear case of murder has been established by the confessional statement recorded under section 164 of the code by the accused and medical evidence against him whether the convict-appellant can be convicted for the offence of murder punishable under section 302 of the Penal Code.
  3. Whether the case is required to be sent back to Tribunal or Court of Sessions for fresh trial. 
Section 25 of the Ain of 2000 postulates that Tribunal defined section 2 (Ghha=W) shall be treated as Court of Sessions and Tribunal shall be able to exercise all powers of Sessions Court in holding trial of an offence.
 
Section 26 of the Ain of 2000 enshrines that Tribunal so constituted shall be recorded as Nari-O-Shishu Nirjatan Daman Tribunal and shall be constituted with one Judge and Judge of Tribunal shall be appointed from amongst District and Sessions Judges to the Government and Government, if necessary, shall appoint any District and Sessions Judge as Tribunal Judge in addition to his charge. Section 20 further enjoins that under the section Additional District and Sessions Judge shall, also, stand included as District and Sessions Judge.
 
From the above it becomes manifestly clear that a Tribunal trying a case under the Ain of 2000 is, also, a Court of District and Sessions Judge. When a Judge sits in a Tribunal or Special Tribunal Case holding trial of an offence under a Statute or Special Statute is a Tribunal or Special Tribunal and a Judge when sits in Sessions Case trying an offence punishable under Penal sections of Penal Code sits as Sessions Judge.
 
The case in hand, although, tried by a Tribunal constituted under the Ain of 2000 that Tribunal was, also, the Court of sessions. In the judgment learned judge was described as District and Sessions Judge, Tangail as well as Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Feni. Judgment demonstrates that learned District and Sessions Judge had been, also, exercising the power and jurisdiction of Nari-O-Shishu Nirjatan Daman Tribunal. Fate of the convict-appellant and result of the case would have been the same whether it would have been tried either as a Nari-O-Shishi case by the Tribunal or as a Sessions case by learned Sessions Judge of Tribunal and if section 11(ka) of The Ain, 2000 was not attracted in respect of convict-appellant, the offence of section 302 of the Penal Code could be very much pressed into service against the convict-appellant and he could be conveniently tried and convicted for offence of section  302 of the Penal Code. 
 
In Asiman Begum Vs State represented by Deputy Commissioner, 51 DLR(AD) 18 the accused-appellant along with 6 others was put on trial before Nari-O-Shishu Nirjatan Bishesh Adalat, Patuakhali to answer a charge of section 10(1) of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995  in Nari-O-Shishu Case No. 2 of 1996. Accused-appellant was found guilty under the first part of section 304 of the Penal Code and sentenced to rigorous imprisonment for four (4) years and, also, a fine of Taka 1,000 in default of payment of fine to suffer rigorous imprisonment for one (1) year more. A single Judge of High Court Division disposing of the Criminal appeal preferred by convict-appellant observed that the trial had been vitiated for want of jurisdiction inasmuch as Nari-O-Shishu Nirjatan (Bishesh Bidhan) Adalat, could only try an offence under the aforesaid Bishesh Bidhan Ain, 1995 and not an offence under The Penal Code, learned Single Judge sent the case back on remand to learned Sessions Judge to try it in accordance with law. Before Appellate Division it was argued from side of accused-appellant that the remand order for trial of the case as a Sessions Case in the particular circumstances of the case will be a mere formality because Nari-O-Shishu Case No. 2 of 1996, although, tried under Bishesh Bidhan Ain, 1995 by a Bishesh Adalat, the presiding officer was no other than the Sessions Judge himself and, as such, it was unlikely that the result would be anything different if the case was tried by him as a Sessions Case. Appellate Division found considerable substance in the submission of learned Advocate for accused-appellant. Appellate Division, thus sent the appeal to High Court Division to consider the case on merit and to pass whatever order or orders it might think appropriate in the interest of justice.
 
In State Vs Abul Kalam, 5 BLC 230 one Abul Kalam stood convicted for offence of section 10(1) of The Ain of 1995 for murder of his wife for dowry by learned Sessions Judge and Special Tribunal No. 1, Noakhali. Conse-quential sentence was death. Condemned-prisoner preferred Jail appeal and, also, regular Criminal appeal before High Court Division. There had been, also, Death Reference. A Division Bench of High Court Division heard Death Reference, Jail Appeal and Criminal Appeal together and disposed of those by a common Judgment. High Court Division found that there had not been cogent evidence as to committing murder for dowry and no evidence had been led as to the real cause of killing of wife by husband and held that the case did not come under section 10(1) of The Ain of 1995 and the case comes under section 302 of The Penal Code. The High Court Division further held that Sessions Judge, in fact, was the Special Tribunal No. 1 who tried the case and for no fault of the accused the case had been tried as Special Tribunal Case. High Court Division instead of sending the case back for fresh trial under section 302 of The Penal Code by learned Sessions Judge disposed of the appeal. High Court Division altered conviction from section 10(1) of The Ain, 1995 to one under section 302 of Penal Code. Sentence of death was altered to one of imprisonment for life. The High Court Division in rendering decision took into account Asiman Begum vs State, (Supra).
 
A similar question was, also, considered in Shibu Pada Acharjee Vs. State, 56 DLR 285. In the said case, accused-appellant was convicted for offence of Section 4(c) of The Ordinance of 1983 for commission of rape upon victim Ratna Rani but ingredients of Section 4(c) of the Ordinance of 1983 could not brought home to accused appellant. In the case it had been laid down:
“To take the prosecution out of Court on a question of technicality, will be a traversity of justice and technicality must bend to cause of justice inasmuch as fact of law is justice”.
 
Accused appellant can be fastened for offence of section 376 of the Penal Code and conviction under section 4(c) of The Ordinance of 1983 can be altered to one of section 376 of the Penal Code.
 
In the said case conviction under section 4 (c) of the Ordinance of 1983 was altered to one of section 376 of the Penal Code. Asiman Begum vs State, (Supra) and State Vs Abul Kalam, (Supra) had been, also, discussed considered and meditated in Shibupada Acharjee Vs. State (supra).
 
In the event of sending the case either to Tribunal or Court of Sessions for fresh trial proceeding would be protracted which cannot be allowed in the interest of true dispensation of criminal Justice.
 
Since offence of murder is punishable under section 302 of the Penal Code was carried to the door of convict appellant he can be very much convicted for offence of section 302 of the Penal Code and, as such, we convert the offence of section 11(ka) of the Ain of 2000 to offence of section 302 of the Penal Code. Convict appellant, thus stands convicted for offence of section 302 of the Code.
 
Legal debate stands solved in the following terms and language:
  1. Convict appellant can not be graced with a verdict of acquittal.
  2. Convict appellant can be convicted for the offence punishable under section 302 of the Penal Code
  3. Case is not required to be sent either to Tribunal or Court of Sessions for fresh trial. 
What sentence is to be imposed upon convict-appellant—death or imprisonment for life?
 
Sentencing discretion on the part of a Judge is the most difficult task to perform. There is no system or procedure in the Criminal Justice administration method or Rule to exercise such discretion. In sentencing process, two important factors come out which shall shape appropriate sentence a. Aggravating factor, and b. Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and Court responded to the society’s cry for justice. Under section 302 of The Code, though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice.
 
Record indicates that convict-appellant is not a hard criminal and he cannot be at all characterised to be a menace to the society. Taking an account of aggravating and mitigating circumstance, we are of this considered view that ends of justice will be met if death sentence is altered to one at imprisonment for life. Convict-appellant thus, stands sentenced to imprisonment for life. Convict-appellant, also, is to pay a fine of Taka 10,000/- and in default of payment of fine to suffer rigorous imprisonment for 1 (one) months more.
 
On the premises of the foregoing discussion, the following orders are passed:
  1. Death Reference No.105 of 2008 is rejected.
  2. Jail Appeal No. 1024 of 2008 and Criminal Appeal No. 7514 of 2008 stand dismissed with modification of conviction and sentence. Judgment of conviction and sentence dated  October 14, 2008 passed by Nari-O-Shishu Nirjatan Daman Bishesh Adalat (Tribunal), Tangail in Nari-O-Shishu Case No. 39 of 2003 is modified in the epithet that convict-appellant is found guilty of the offence of section 302 of the Penal Code and not for an offence of section 11(ka) of Nari-O-Shishu Nirjatan Daman Ain, 2000 and conviction for offence of section 11(ka) of The Ain of 2000 is altered to one of section 302 of The Penal Code and death  sentence is altered to one of sentence of imprisonment for life and he is to pay a fine of Tk. 10,000/- and in default of payment of fine to undergo rigorous imprisonment for 1 (one) year more. Out of this awarded sentence the quantum of sentence he has already served out shall be deducted on the application of the  provision of section 35A of the Code of Criminal Procedure. The period in custody before commencement of Trial and after  commencement of Trial be  deducted  from  the total   sentence  under section   of the   Code  of  Criminal  Procedure. Let a copy of the judgment be sent to the Nari-O-Shishu Nirjatan Daman Tribunal, Tangail. The Jail Superintendent, Tangail is directed to shift the condemned prisoner from death cell into the common accommodation for the convict appellant.  
Send down the lower court records at once.
 
Communicate this order at once.
 
Ed.