The State Vs. Abdur Razzak Matubber [4 LNJ (2015) 428]

Case No: Death Reference No. 106 of 2008

Judge: Abdur Rob,

Court: High Court Division,,

Advocate: Bishmadeb Chakraborty,Mr. Md. Hatem Ali,,

Citation: 4 LNJ (2015) 428

Case Year: 2015

Appellant: The State

Respondent: Abdur Razzak Matubber

Delivery Date: 2014-01-20


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

Judgment on
20.01.2014
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The State
-Versus-
Abdur Razzak Matubber
...Condemned-prisoner
(In Death Reference No. 106 of 2008)
 
With
Abdur Razzak Matubber
. . . Convict-appellant
              Versus
The State . . . Respondent
(in Jail Appeal No. 1005 of 2008)
 
Penal Code (XLV of 1806)
Clause I of Section 300 and 302
Beyond doubt that convict Abdur Razzak is the actual perpetrator of murder as he inflicted the fatal blow on the victim causing instant death. This is a premeditated, pre-planned, preconceived and calculated act by the convict Razzak with the intention of causing death of the victim which must come within the bound of clause 1 of Section 300 of the Penal Code and punishable under section 302 of the Code. . . .  (60)

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. 106 of 2008)

Mr. Md. Hatem Ali, Advocate
. . . For the convict-appellant (In Jail Appeal No.1005 of 2008)

Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Atiqul Hoque A.A.G. with
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State (In Jail Appeal No.1005 of 2008)
 
Death Reference No. 106 of 2008, with Jail Appeal No. 1005 of 2008
 
JUDGMENT
Abdur Rob, J:
 
This reference under section 374 of the Code of Criminal Procedure, shortly, “Cr.P.C” has been made by the learned Sessions Judge, for confirmation of death sentence imposed upon accused Abdur Razzak Matubber son of Md. A. Aziz Matubber on his conviction under section 302 of the Penal Code awarded by the Judgment dated October 21, 2008 passed in Sessions Case No157 of 2007 arising out of Hizla Police Station Case No. 02 dated July 07, 2007 corresponding to G.R. No. 66 of 2007.
Deceased Monwara Begum shall be described hereinafter as victim of crime Monwara. Convict Abdur Razzak Matubber shall be described as convict-appellant.
The prosecution case, in brief, is that one Md. Habibullah Talukder (P.W.1) lodged a First Information Report, shortly, “FIR” on July 07, 2007 with Hizla Police Station alleging, inter alia, that there had an enmity between the victim and the accused Abdur Razzak Matubber who used to steal fruit from the victim Monowara Begum's garden and that the accused also threatened to kill her. The accused Abdur Razzak and the victim Monowara Begum was neighbors. On July 07, 2007 at around 14.15 hours the victim Monowara was going to her family pond to take her bath and when she reached the bank of the pond, accused Razzak started abusing her in filthy language who requested the accused not to use filthy language but the accused continued abusing her. At one stage the accused Razzak stabbed the victim with dao and hit her on the head and other parts of the body. The blows fractured the victim's skull. The accused also inflicted fatal blows on other parts of the body on neck, back and armpit and his mother the victim Monowara, succumbed to her injuries. The informant received Telephonic message and rushed to the place of occurrence and found his mother's dead body.  The local people surrounded the dwelling hut of accused Razzak. He came to learn about the occurrence from his sister Nasima Begum and on the same day he lodged FIR and that the accused was arrested by the Police after filing the case.
On the basis of the aforesaid fact Hizla Police Station case No. 02 dated July 07, 2007 was started under sections 448,302,326,323 and read with section 34 of the Penal Code corresponding to G.R. No. 66 of 2007.
The Investigating Officer took up the case for investigation; he prepared the Inquest Report of the victim in presence of witnesses; he visited the place of occurrence; duly sent the body of the victim to the Forensic Medicine Department of Barishal Shar-E-Bangla Medical College Hospital for post mortem. Post mortem of the victim was performed by one Dr. Md. Habibur Rahman.
Ultimately, on conclusion of investigation the Investigating Officer, submitted charge-sheet against accused Razzak under section 302 of the Penal Code.
Later, the case was duly sent to the learned Sessions Judge, Barisal for trial. Learned Sessions Judge on taking cognizance of the offence against accused Razzak under section 302 of the Penal Code.
Convict Razzak had been placed on trial and charge framed under section 302 of the Penal Code and the charge being read over and explained, the accused Razzak pleaded not guilty and claimed to be tried. Prosecution witnesses were, thereafter examined. After completion of examination of the prosecution witnesses under section 342 of the Cr.P.C he was asked to enter upon his defence, but once again he pleaded not guilty and refused to examine any witness or to submit any document in his defence.
The defence case, as it transpired from the trend of cross-examination of prosecution witnesses, is that the accused Razzak is innocent. Further the defence claim that no such occurrence took place at the time, place and in the manner stated in the FIR.
During the course of trial the prosecution produced as many as 19 witnesses including the Medical Officer and the Investigating Officer. However, the defense did not adduce any defense witness. The Trial Court after considering the evidence and materials on record found the accused Razzak guilty under section 302 of the Penal Code and sentenced him to death by its judgment and order dated October 21, 2008.
Death sentence matter has been referred to this Court by way of a Reference by the Trial Court and the Reference has been noted as Death Reference No. 106 of 2008. Convict  Razzak however, also carried a petition of Appeal being registered as Jail Appeal No. 1005 of 2008.
Death Reference and Jail Appeal are heard together and disposed of by this single judgment.
Mr. Bishmadev Chakrabortty, the learned Deputy Attorney General with Mr. Md. Atiqul Hoque and Mr. Nizamul Haque Nizam, the learned Assistant Attorney General appeared in support of the Reference. While Mr. Md. Hatem Ali, the learned Advocate appeared  in support of Jail Appeal.
Mr. Biswadev Chakraborty, the learned D.A.G submits that the prosecution case being proved to the hilt, the trial court rightly found the condemned prisoner guilty under section 302 of the Penal Code and convicted and sentenced him there under; in view of the barbaric and gruesome manner in which the condemned prisoner Razzak killed the victim Monowara, the trial court rightly awarded him death sentence and as such, the order of conviction and sentence should be maintained and the Death Reference be accepted. 
On the other hand, Mr. Md. Hatem Ali, the learned Advocate who took us through the FIR, and the entire evidence on records including the material exhibits and submits that the learned Sessions Judge fell into error of law in convicting convict appellant basing on the statements of the witnesses who are highly interested and relatives of the victim; that the Trial Court erred in law as well as in facts in convicting and sentencing the appellant and as such, the impugned judgment and order is liable to be set aside; that the prosecution could not prove its case beyond all shadow of doubt as such, the Trial Court was not justified in awarding death sentence to the condemned prisoner. 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 a routine and this is not a case in which sentence of death is wanted.
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. Habibullah Talukder stated that there had an enmity between the victim and the accused Razzak who used to steal fruit from the victim Monowara's garden and that the accused also threatened to kill the victim. Accused Razzak and the victim Monowara Begum were neighbors. On July 07, 2007 at around 14.15 hours victim Monowara was going to her family pond to take her  bath and when she reached the bank of the pond, the accused Razzak started abusing her in filthy language Monowara requested the accused not to use filthy language but the accused continued doing so. At one stage accused Razzak stabbed her with a dao and hit her on the head and other parts of the body. The blows fractured the skull of the victim. He further deposed that the accused also inflicted fatal wounds on other parts of the body on neck, back and armpit of his mother. The victim succumbed to the injuries on the spot. He received Telephonic message and rushed to the place of occurrence and found her dead.  He also stated that local people surrounded the dwelling hut of accused Razzak. He lastly stated that he came to learn about the occurrence from his sister Nasima Begum and on the same day he lodged the FIR. The convict Razzak was arrested by the Police after the case was filed. He identified the FIR and his signature thereon as exhibits 1 and 1/1 respectively. 
In his cross-examination he deposed that at the relevant time he used to reside at Barisal City and his mother victim Monowara resided alone in their house. He stated that the house of his sister Nasima Begum beside their house and that there was previous enmity between the accused and his mother over land. He denied a defence suggestion that his mother fell on a timber which caused severe injuries.
P.W. 2 Asadul Hakim stated that on July 07, 2007 at about 2.15 p.m the victim Monowara was brutally murdered by accused Razzak. He further deposed that at around 2.45 p.m he went to the place of occurrence and found the dead body of victim Monowara. He further stated that Nasima Begum, daughter of victim Monowara informed him that accused Razzak had killed her mother with a dao. He further deposed that the Sub-Inspector of Police prepared Inquest Report exhibit 2 in his presence and his signature so endorsed therein and was marked as exhibit 2/1. He is also a seizure list witness. He stated that on the same day, Sub-Inspector of Police seized a dao, a small part of the victim's skull and blood stained soil from the place of occurrence. He proved the seizure list as exhibit 3 and his signature so endorsed therein and was marked as exhibits 3/1. He identified a dao as material exhibit 1 and small part of skull as material exhibit II and blood stained soil as material exhibit III.
In his cross-examination, he stated that he did not see the occurrence, P.W. 6 Nasima Begum informed him about the occurrence. He denied a defence suggestion that he was deposed falsely. 
P.W 3 Nurul Alam Raju stated that on July 07, 2007 at around 2.30 p.m he came to know that victim Monowara had been killed by accused Razzak and on hearing of the incident he rushed to the place of occurrence and found the dead body of the victim in a pool of blood. He further deposed that the local people surrounded the accused Razzak in his dwelling hut and local people Wahid, Dulal, Nasima disclosed that accused Razzak assaulted Monowara with a dao. He further deposed that the police rushed to the place of occurrence and arrested accused Razzak with a dao. He is a seizure list witness and stated that Sub-Inspector of Police seized the dao, a small part of skull and some blood stained soil from the place of occurrence and prepared the seizure list. He identified his signature thereto as exhibit 3/2. He is a witness of Inquest Report and stated that Police prepared a Inquest Report as exhibit 2 of the dead body of victim Monowara. He identified his signature thereto as exhibit 2/2 and accused Razzak on the dock. He also indentified the seized articles dao, as material exhibit I, small parts of skull as material exhibit II and blood stained soil as material exhibit III.
In his cross-examination he deposed that informant is his distant brother-in-law and that he did not see the occurrence.
P.W.4 Mst. Parveen Begum is another neighbour of the victim deposed that on July 07, 2007 at around 2.00 p.m victim Monowara was murdered by accused Razzak with a dao. She stated that the skull of Monowara was severely damaged and she died on the spot. She claimed herself as an eye witness to the occurrence and she identified accused Razzak on the dock. She also stated that local people apprehended the accused at his dwelling hut and the police arrested him.
In her cross-examination she stated that on hearing hue and cry she rushed to the place of occurrence and observed the occurrence. She denied a defence suggestion that she deposed falsely.
P.W.5 Mst. Milon Tara Begum was a neighbor of victim Monowara. She stated that she is an eye witness to the occurrence. On July 07, 2007 at around 2.00 p.m. she saw accused Razzak attacked victim Monowara with a dao and hit her head, hand, back, ribs. She  stated that the blows fractured the victim's skull. She further deposed that local people apprehended accused Razzak and he was handed over to the Police. She identified the accused on the dock. She denied a defence suggestion that she did not see the occurrence and victim Monowara was very old lady who fell into the pond or that she deposed falsely.
P.W. 6 Mst. Nasima Begum is the daughter of victim Monwara. She claimed herself is an eye witness to the occurrence. she stated that on July 07, 2007 at around 2.15 p.m. her mother Monowara was going to their family pond to bath and when she neared the house of accused Razzak, the accused out of previous grudge, started abusing her in filthy language. She also stated that her mother victim Monowara, requested the accused not to use filthy language and that accused Razzak stabbed her with a dao and hit her on the head and other parts of the body. The blows fractured the victim's skull. She further deposed that on hearing her hue and cry local people rushed to the place of occurrence and accused Razzak also threatened them with a dao and thereafter accused Razzak went to his dwelling hut which was encircled by the local people and the police came to the place of occurrence and arrested the accused Razzak with a dao. She deposed that her mother, Monowara died on the spot.
In her cross-examination she stated that the informant Md. Habibullah Talukder is her brother who was informed the incident over Mobile Phone. She also stated that her dwelling hut and the dwelling hut of the accused are situated side by side and thus had previous enmity between Razzak and her mother. She denied a defence suggestion that her mother died after falling to the ground with force.
P.W. 7 Farid Ahmmed Fakir stated that the occurrence took place on July 07, 2007 at around 2.20 p.m. he was working near the place of occurrence. He further deposed that on hearing hue and cry he rushed to the place of occurrence and found the accused Razzak was assaulting the victim with a dao and at that time they tried to resist the accused but he threatened them saying that if they proceed to resist him he would kill them also. He further deposed that on getting information police rushed to the place of occurrence and arrested the accused Razzak with a dao. He is a witness of Inquest Report and also identified his signature thereto as exhibit  2/3 and accused Razzak on the dock.
In his cross-examination he deposed that he personally saw the occurrence. He  denied a defence suggestion that his house is half mile distance from the place of occurrence or he did not see the occurrence.
P.W. 8 Anisur Rahman Matubber is an eye witness to the occurrence. He stated that accused Razzak is his cousin and they live in the same house. He further deposed that the occurrence took place on July 07, 2007 at around 2.15 p.m and on hearing hue and cry he came out from his dwelling hut. He further deposed that he saw that accused Razzak stabbed the victim Monwara with a dao and the blows fractured the victim's skull. The victim succumbed to the injuries on the spot. They tried to resist the accused and the accused threatened them saying that not to proceed and if they proceed, he would kill them also. He further deposed that on hearing hue and cry local people rushed to the place of occurrence and they surrounded the dwelling hut of the accused and thereafter police arrested the accused with a dao. He identified the accused on the dock.
In his cross examination he denied a defence suggestion that he deposed falsely.
P.W. 9 Md. Shahid Munshi is an eye witness to the occurrence. He stated that the occurrence took place on July 07, 2007 at around 2.15 p.m. and at that time he was taking bath in their family pond. He further stated that on hearing hue and cry he proceeded to the place of occurrence and he saw accused Razzak stabbed the victim with a dao and Monwara succumbed to her injures. Accused Razzak also inflicted that fatal wounds on other parts of her body. They encircled the house of the accused and police arrested him.
In his cross-examination, he stated that he was taking bath at the north side of the pond and Monowara was standing on the south of the pond.
P.W. 10 Lalu Boyati stated that the occurrence took place on July 07, 2007 at around 2.15 p.m, and on hearing hue and cry he rushed to the place of occurrence and found the accused Razzak threating the people with a dao and he also saw bloodied and injured victim Monowara. On interrogation he came to know that accused Razzak had killed the victim with a dao. He deposed that they encircled the accused in his hut and the police arrested him. 
P.W. 11 Md. Tareque Chowdhury stated that on July 07, 2007 at around 2.30 p.m he came out from the mosque and he was informed that accused Razzak murdered victim Monowara with a dao blow and he came to the spot and found the blood injured dead body of Monowara. He further deposed that local people surrounded the accused in his dwelling hut and police arrested him. He is another witness of seizure list and identified his signature thereto as exhibit- 2/2). 
P.W. 12 Md. Nazrul Islam stated that the occurrence took place on July 07, 2007 at around 2.15 p.m and on hearing hue and cry he rushed to the place of occurrence and found the bloodied dead body of Monowara. He further deposed that on interrogation he came to know that accused Razzak killed Monowara with a dao. He further deposed that he found marks of injury on the head, back and neck of the victim. He also deposed that accused Razzak confessed to them that he killed the victim Monwara stabbing with a dao.  He is a seizure list witness. In this regard, he stated that on July 10, 2007 at around 18.50 hours Sub-Inspector of Police 3 pieces of blood stained saree, material exhibit III one blood stained petticoat material exhibit IV and a blood stained lady’s gauze scarf  materials exhibit V after preparing those seizure list was marked as exhibit 3 ka. He also identified his signature thereto as exhibit 3 ka/1.
In his cross-examination he stated that he did not see the convict hit the victim with a dao. He denied a defence suggestion to the effect that he deposed falsely.
P.W. 13 Mst. Jahanara Begum is an eye witness to the occurrence. She stated that the occurrence took place on July 07, 2007 at around 2.15 p.m. On hearing hue and cry she rushed to the place of occurrence and she deposed that he went to spot from the back of the pond and saw that accused Razzak was assaulting victim Monwara with a dao and injured her severely and Monwara succumbed to injuries. He further deposed that local people apprehended the convict  and thereafter police came to the place of occurrence and arrested him. She further deposed that she personally witnessed the occurrence.
In her cross-examination she deposed that both the informant and the convict are her neighbours and at the relevant time of occurrence she was working near their family pond.
P.W. 14 Alamgir Matubber is an eye witness stated that the occurrence took place on July 07, 2007 at around 2.15 p.m. He stated that accused killed Monwara stabbing with a dao. He further deposed that on hearing hue and cry local people rushed to the place of occurrence, but accused Razzak threatened them with a dao and thereafter, they encircled the accused Razzak in his dwelling hut and Police came to the place of occurrence and arrested accused Razzak with a dao.
P.W. 15 Md. Fazlul Huq Boyati who came to the place of occurrence just after the occurrence and he stated that on July 07, 2007 at around 2.15 p.m the accused killed the victim Monowara with a dao and he found accused Razzak on the spot with a dao. He further deposed that they confined accused Razzak in his dwelling hut and the Police came to the place of occurrence and arrested him. He also stated that accused Razzak severely assaulted victim Monowara with a dao. He stated that the blows fractured the skull  of Monwara.
P.W 16 Jalil Chowkider stated that on July 07, 2007 at about 2.15 p.m accused Razzak killed the victim Monowara with a dao.
P.W 17 Dr. Md. Habibur Rahman in his examination-in-cheif stated that he held the Post Mortem on the dead body of the victim.  He found the following injuries:-
At the left parietal temporal occipital region there are five cut injuries (4״ X 1״X 1״), (3״ X 1״ X 1״), (3 ״ X 1״ X 1״), (2״ X 1״ X 1״) and (2״ X״ X ״), scalp, skull and brain matter were found cut into pieces. Brain matter was found coming out through injuries. Area was found covered by clotted blood.
At the neck region and on the left arirary region there are 2 cut injuries (3״ X 1״ X 1״)   (2״ X 1״ X 1״). The area was found covered by clotted blood.
He opined that the cause of death was coma resulting from above mentioned head injuries, Post Mortem findings consistent with homicidal in nature.
In his cross-examination stated that he found as many as 5 cut injuries on the head.
P.W 18 Constable 795 Md. Abul Hossain deposed that on July 07, 2007 he carried the dead body of victim Monowara for autopsy and he identified the dead body infront of the concerned doctor. He was also a seizure list witness. He further stated that on July 10, 2007 at around 18.50 hours Sub-Inspector of Police prepared the seizure list of a part of blood stained saree material exhibit IV, one blood stained petticoat material exhibit V, one blood stained lady’s gauze materials exhibit VI after preparing its seizure list was marked as exhibit 3 ka and he also identified his signature thereto as exhibit 3 ka/2.
Defence declined to cross examine this witness.
P.W 19 Khan Emran Hossain, Investigating Officer stated that he visited the place of occurrence; held inquest report as exhibit 2 of the dead body of victim Monowara and sent to the morgue for Post Mortem examination. He seized the alamat, prepared sketch map exhibit 4 with separate index exhibit 5, examined witnesses and recorded their statements under section 161 of the Cr.P.C. He further stated that he seized one dao material exhibit I, a small part of the skull of the victim material exhibit II, some blood stained soil after preparing its’ seizure list as exhibit 3 and he also identified his signature thereto as exhibit 3/3. He further deposed that on July 10, 2007 at around 18.50 hours he seized blood stained saree of victim material exhibit IV, one blood stained petticoat material exhibit V, one blood stained lady’s gauze scarf material exhibit VI and he also prepared a separate seizure list of those articles as exhibit 3 ka and he identified his signature thereto as exhibit 3ka/3. He denied the defence suggestion that he did not visit the place of occurrence and held investigation in a perfunctory manner. He denied the defence suggestion that he did not investgate properly.
So, these are the evidences which have been adduced by the prosecution to substantiate the guilt of the convict appellant. On the basis of the evidence this Court is to decide whether the prosecution was able to prove its case beyond all shadow of doubt; whether the impugned judgment and order is tenable in the eye of law and whether the Death Reference deserves acceptance by this Court.
From the evidence on record, it is found  P.W 1, the informant Md. Habib Ullah Talukder, supported the prosecution case in his testimony stating that there was enmity between the victim and the condemned prisoner who used to steal fruit from the victim's  garden and that the convict also threatened to kill the victim. Convict Razzak and the victim Monwara were neighbours. On July 07, 2007 at around 14.15 hours the victim Monowara was going to the family pond to take her bath and when she reached the bank of the pond, convict Razzak started her in filthy language. Monwara requested the convict not to use filthy language but the convict continued doing so. At one stage convict Razzak stabbed her with a dao and hit her on the head and other parts of the body. The blows fractured her skull. He further deposed that the convict also inflicted fatal wounds on her and the victim succumbed to the injuries. He proved the FIR and his signature thereto as exhibits 1 and 1/1 respectively. P.W 2 Asadul Hakim is a neighbour of both the parties. He stated that on July 07, 2007 at around 2.15 p.m. victim Monwara was brutally murdered by convict Razzak. He deposed that after being informed at around 2.45 p.m. he rushed to the place of occurrence and found the dead body of victim Monwara. Convict Razzak was arrested by the police after filing the case. He identified his signature in the Inquest Report as exhibit 2. He proved the seizure list and his signature as exhibits 3 and 3/1 respectively. P.W 3 Nurul Alam Raju deposed that on July 07, 2007 at around 2.30 p.m. on hearing the incident he rushed to the spot and found the dead body of victim Monowara in a pool of blood. He further deposed that police rushed to the spot and arrested convict Razzak with a dao. He proved the Inquest Report, seizure list and his signatures therein as exhibits 2, 2/1, 3 and 3/2 respectively. P.W 4 Mst. Perveen Begum an eye witness of the occurrence deposed that July 07, 2007 at around 2.00 p.m victim Monowara was killed by convict Razzak and the skull of the victim was severely damaged and that she died on the spot. She deposed that local people apprehended convict Razzak and he was arrested by the police. P.W 5 Mst. Millon Tara Bagum an eye witness of the occurrence deposed that she saw convict Razzak attacked victim Monwara with a dao and hit her on the head, hand, back and ribs. P.W 6 Nasima Begum as an eye witness of the occurrence deposed that she saw convict Razzak attacked victim Monwara with a dao and hit her on the head, hand, back and ribs. In her cross-examination denied the defence suggestion that her mother died after falling to the ground with force. P.W 7 Farid Ahmed Fakir stated that the occurrence took place on July 07, 2007 at around 2.20 p.m. and he was working near the spot. He further deposed that on hearing hue and cry he rushed to the spot and found convict Razzak assaulting the victim with a dao and at that time they tried to resist the convict but he threatened them saying that if they proceed to resist him, he would killed them also. He is a witness of Inquest Report and he identified his signature thereto as exhibit 2/3. P.W 8 Anisur Rahman is an eye witness to the occurrence deposed that he saw that convict Razzak stabbed the victim Monwara with a dao and the blows fractured her skull. The victim succumbed to injuries on the spot. P.W 9 Shahid Munshi is an eye witness to occurrence deposed that he saw the accused Razzak assaulting Monwara and stabbing her with a dao and Monwara succumbed to the injuries on the spot. Accused Razzak also inflicted that fatal blows on other parts of her body. They encircled the house of the accused and later the police arrested him. P.W 13 Mst. Jahanara Begum an eye witness to the occurrence deposed in her evidence that on the date of occurrence hearing hue and cry she rushed to the spot and saw the accused Razzak stabbing the victim with a dao. The convict injured her severely and victim Monwara succumbed to injuries on the spot. P.W 14 Alamgir an eye witness to the occurrence stated that on hearing hue and cry the local people rushed to the spot. He saw the convict Razzak kill Monwara with a dao.
From the evidence of the aforesaid prosecution witness, it transpires that the prosecution case finds support in their evidence. The aforesaid witnesses also corroborated the said averment of the FIR stating that convict Razzak killed the victim Monowara with a dao and they are eye witnesses to the murder. They confined convict Razzak in his dwelling hut and within a short time the police came to the place of occurrence and arrested the convict Razzak. P.W 18 Constable Md. Abul Hossain carried the dead body of victim Monwara to the morgue of Barisal Sher-E-Bangla Medical College Hospital for autopsy. The Inquest Report, the Post Mortem Report and the evidence of the PWs 19 and 17 are consistent with each other regarding death of the victim.
It is also found from the materials on record that the death of the victim was due to coma haemorrhage which was caused as a result of injuries which were anti-mortem and homicidal in nature and that it is ex-facie clear that the victim was injured with intention to cause death. There is no extenuating circumstance that may impel this court to take a lenient view and commute the sentence on record for the purpose of commutation of the death sentence.    
We find from the seizure list exhibit 3 ka that 3 pices of blood stained saree, one blood stained petticoat and one blood stained lady's gauze scarf were seized at 18.50 hours on July 10, 2007 at Hizla Police Station. 
However, we  put the testimonies of the P.Ws 4,5,6,7,8,9,13 and 14 namely Parveen Begum,  Mst. Milon Tara Begum, Mst. Nasima Begum, Farid Ahmed, Anisur Rahman,  Md. Shaid Munshi, Mst. Jahanara Begum and Alamgir Matubber, the most vital prosecution witnesses, to the closest scrutiny as is required by law and found the same to be quite trustworthy. In expansive, pictorial and graphic evidence of the witnesses, the substantive part touching upon the factum of occurrence, the manner, method and the sequence of it has not been shaken, deviated from or render doubtful in their cross-examination.
On in depth analysis of the evidence of above P.Ws we find that there are virtually no omission, in consisting or contradiction or any material fact concerning the factum and sequence of the offence between the statements made in their examination-in-chief and cross examination. Under the circumstances we must say that such rock-like evidence of the P.Ws, whose evidence are absolutely unshaken by the cross-examination, put the prosecution case on a definite foundation and to discredit them reasonable doubt must be created in our mind based on the evidence on record itself, not on conjectures and surmises. The evidence of the above witnesses have a natural flow. It does not appear to be a labored one. 
In a Criminal case, time, place and manner of the occurrence are very vital factors. In the instant case, the vital factors have been brought home to us by the prosecution.
From the discussion, we have no hesitation in holding that the prosecution had succeeded in proving the charge brought against convict Razzak beyond all reasonable doubt. Accordingly, we find convict appellant guilty under section 302 of the Penal Code.
The fact of the case shows that the convict used a heavy and sharp cutting dao and it has been well proved that the convict had inimical relationship with the victim Monowara.
The entire fact of the case shows that the convict appellant brutally killed the victim in the broad day-light and not only that he threatened the local people who tried to resist him. The convict acted with cruelty in committing murder of the victim and in view of the matter we would like to observe that the ends of justice will be met if the convict appellant is awarded the capital punishment i.e the sentence of death.
We therefore, hold beyond doubt that convict Abdur Razzak is the actual perpetrator of murder as he inflicted the fatal blow on the victim causing instant death. This is a premeditated, pre-planned, preconceived and calculated act by the convict Razzak with the intention of causing death of the victim which must come within the bound of clause 1 of Section 300 of the Penal Code and punishable under section 302 of the Code.
By a close study          of the facts, materials on record including evidence, it transpired from the statements of P.Ws. 4,5,6,7,8,9,13 and 14 namely Perveen Begum, Most. Milon Tara Begum, Most. Nasima Begum, Farid Ahmed, Anisur Rahman, Md. Shahid Munshi, Most. Jahanara Begum and Alamgir Matubber specifically and strongly supported the prosecution case in the same voice as eye witnesses of the occurrence. They clearly established that on July 07, 2007 at around 2.20 p.m victim Monowara Begum was killed by the condemned prisoner Abdur Razzak who assaulted the victim with a dao indiscrimi-nately. The aforesaid witnesses also clearly stated that the skull of the victim was severely damaged and that she died on the spot. They corroborated the oral evidence given by each other before the trial court and proved the prosecution case successfully.
P.W. 17 Dr. Habibur Rahman supported the case by proving the injury and cause of death because of the said injuries. P.W 19  Khan Emran Hossain also supported the case by proving the Inquest Report. The chain of evidence against the convict Abdur Razzak is so complete and specific that it does not leave any reasonable doubt in finding him guilty of the charge brought against him.
For all reasons stated above we are constrained to hold that the charge has been proved against the convict Abdur Razzak we do not find any cogent and legal ground to interfere with the judgment and order of conviction and sentence as stated herein before. The appeal, therefore, must fail.
The question posed stands answered in the epithet that Judicial Ruling of conviction and sentence prized upon the convict-appellant are well merited and justified and banner of criminal as well as Divine Justice has been upheld by the delivery of judicious verdict manifesting wisdom and good sense and the Judicial Ruling warrants no interference by this Court in the exercise of its appellate jurisdiction.
The impugned judgment and order of conviction and sentence on 21st of October, 2008 passed by the learned Sessions Judge, Barisal in Sessions Case No. 157 of 2007 is hereby upheld.
In the result, the death reference No. 106 of 2008 is accepted and the connected Jail Appeal No. 1005 of 2008 is hereby dismissed.
Death sentence in respect of convict Abdur Razzak be executed in the terms noted by learned Sessions Judge, Barisal in his judgment. 
Let the lower court records be sent down along with copy of the judgment and order at once.
Ed.