The State Vs. Azaharul Islam and others, 3 LNJ (2014) 862

Case No: Death Reference No. 45 of 2009

Judge: Abdur Rob,

Court: High Court Division,,

Advocate: Mr. Md. Atiqul Hoque,Mr. Nizamul Hoque Nizam,Mr. Md. Azizul Islam,,

Citation: 3 LNJ (2014) 862

Case Year: 2014

Appellant: The State

Respondent: Azaharul Islam and others

Subject: Commutation/Reduction of Sentence,

Delivery Date: 2014-06-11

HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Shahidul Islam, J.
And
Abdur Rob, J.

Judgment on
11.06.2014
 
  The State
Versus
Azaharul Islam
. . . Condemned-Prisoner
(In Death Reference No. 45 of 2009)
Mazidul Islam
. . . Convict-appellant
Versus
The State
. . . Respondent
(In Cr. Appeal No. 5541 OF 2009)
Azaharul Islam  
. . . Convict-appellant
Versus
The State
. . . Respondent
(In Jail Appeal No. 455 of 2009)
 
 
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 11(Ka)
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.  . . . (33)
 
Penal Code (XLV of 1860)
Section 302
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Sections 11(Ka)
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 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 Penal Code. Convict appellant, thus stands convicted for offence of section 302 of the Code. . . .  (46 and 47)
 
Code of Criminal Procedure (V of 1898)
Section 376
Convict-appellant is aged about 25 years when he was examined under section 342 of the Code of Criminal Procedure. 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 5,000/-and in default of payment of fine to suffer rigorous imprisonment for 6(six) months more. . . .(51)
 
Mr. Md. Atiqul Hoque (Salim) A.A.G and 
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State

No one appears, State defence lawyer
. . . For the condemned-prisoner
(In Death Reference No. 45 of 2009)

Mr. Md. Azizul Islam, Advocate
. . . For the convict-appellant

Mr. Md. Atiqul Hoque (Salim), A.A.G and
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State
(In Criminal Appeal No. 5541 OF 2009)

Ms. Sayeda Sabina Ahmed, Advocate
. . . For the convict-appellant

Mr. Md. Atiqul Hoque, A.A.G and
Mr. Nizamul Haque Nizam, A.A.G.
. . . For the State
(In Jail Appeal No. 455 of 2009)

Death Reference No. 45 of 2009 With
Criminal Appeal No.5541 of 2009  with
Jail Appeal No.455 of 2009
 
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, Nilphamari (hereinafter referred to as Tribunal) for confirmation of death sentence imposed upon accused Azaharul Islam, on his conviction under section 11(Ka) of the Nari-O-Shisu Nirjatan Daman Ain, 2000 (as amended 2003) (in short, Ain of 2000) awarded by the judgment dated June 29, 2009 passed in Nari-Shisu Nirjatan Daman Case No. 430 of 2003 arising out of Kishoregonj Police Station Case No. 15 dated June 16, 2003  corresponding to G.R. No.89 of 2003.
 
The prosecution case, in brief, is that one Md. Emdadul Hoque (P.W.1) lodged a First Information Report, shortly, “FIR” on June 16, 2003 with Kishoregonj Police Station against the convict appellants along with five other accused alleging, inter-alia, that on August 14, 2002 Mst. Shahida Begum, daughter of the informant was married with the accused Azaharul Islam according to Islamic Law and also registered with Kabin-nama. After marriage Shahida Begum and her husband started their conjugal life at her husband's house. During the marital life the accused demanded Tk. 20,000/- as dowry, the father of Shahida did not give dowry at the time of marriage being refused, the accused tortured the victim. On may 15, 2003 at around 5.00 P.M. Shahidul Islam son of the informant along with Rashidul Islam (PW2) went to see Shahida at house of the accused and they saw that Shahida was assaulted by the accused. On asking the accused, they came to know that they (accused) assaulted Shahida for dowry. Shahidul Islam and others requested the accused not to assault her and they left the house of the accused. On May 15, 2003 Emdadul Hoque P.W 1 along with some witnesses went to the house of the accused Azaharul and saw the dead body of Shahida lying in the veranda. Next day at around 10.00 A.M he went to Kishorgonj Police Station where he was told by the Officer-in-charge that an Unnatural Death case had already been lodged by accused Mazidul about victim Shahida. After performing Post Mortem of the dead body he went to Police Station for lodging FIR but the O.C. refused to receive the FIR. Thereafter, he went to Court and filed the instant case.
 
On the basis of the aforesaid FIR Kishoregonj Police Station Case No. 15 dated June 16, 2003  was lodged under sections 11(ka)/30 of the Ain, 2000 and section 201 of the Penal Code corresponding to G.R. No. 89 of 2003.
 
Deceased Shahida Begum shall be described hereinafter as victim Shahida. Convicts Azaharul Islam and Mazidul Islam shall be described as convict-appellants.
 
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 respective witnesses. He duly sent dead body of the victim to the Nilphamari Sadar Hospital, for Post Mortem. Post Mortem examination of the victim was performed by Dr. Abdul Mozid Sarker.
 
Ultimately, on conclusion of investigation the Investigating Officer, submitted charge-sheet against the accused appellants along with five others under Sections 11(ka)/30 of the Ain, 2000 and section 201 of the Penal Code.
 
Later, the case was duly sent to the concerned Tribunal for trial. Learned Judge of the Tribunal on taking cognizance of the offence against accused Azahrul Islam under section 11(ka) of the Ain, 2000 against accused Mazidul Islam under section 11(Ka) of the Ain, 2000 and section 201 of the Penal Code and against accused Shahdat, Mariam, Shabina, Atiar and Bhutto under section 11(ka)/30 of the Ain, 2000 framed charge against them. On being read over and explained the charge to the accused they pleaded not guilty and claimed to be tried.
 
The defence case as it appears from the cross-examination of the prosecution witnesses accused was innocent and the victim had died committing suicide. 
 
During the course of trial the prosecution produced as many as 12 witnesses including the Medical Officer and the Investigating Officer. The Tribunal after considering the evidence and materials on record found the accused Azaharul guilty under section 11(Ka) of the Ain, 2000 and sentenced him to death with a fine of Tk. 5,000/- and also found accused Mazidul Islam guilty under section 201 of the Penal Code and sentenced him to suffer rigorous imprisonment for 5(five) years with a fine of Tk. 1,000/= in default to suffer rigorous imprisonment for a further period of 1 (one) month while found five accused persons not guilty of offence under section 11(ka)/30 of The Ain of 2000 and verdict of acquittal delivered upon them by its judgment and order dated June 29, 2009.
 
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. 45 of 2009. Convict Azaharul Islam preferred a petition of Appeal from Jail which has been Numbered as Jail Appeal No. 455 of 2009. The convict appellant Mozidul Islam also carried a petition of Appeal being registered as Criminal Appeal No. 5541 of 2009.
 
Death Reference, Criminal Appeal and Jail Appeal are heard together and are disposed of by this single judgment.
 
Mr. Md. Atiqul Hoque (Salim) along with Mr. Nizamul Hoque Nizam, the learned Assistant Attorney General appeared in support of the Reference. While no one appears on behalf of condemned prisoner as state defence lawyer. Mr. Azizul Islam, the learned Advocate appeared on behalf of convict Majidul Islam in Criminal Appeal No. 5541 of 2009 and Ms. Sayeda Sabina Ahmed, the learned Advocate appeared on behalf of Azaharul Islam in Jail Appeal No. 455 of 2009.
 
Mr. Md. Atiqul Hoque (Salim), the learned AAG, 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 Azaharul with the offence. In this regard learned AAG contended that the victim was an innocent village house wife who did not have any enmity with anyone the alleged occurrence also took place after about 9 months of the marriage as meted out by the accused. Learned AAG insisted that a close reading of the statement of the P.Ws proved that he is solely responsible for the murder of victim Shahida. 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. Md. Azizul Islam, learned Advocate appearing on behalf of accused Mazidul Islam who took us through the FIR, and the entire evidence on records including the materials exhibit and submitted that the Tribunal fell into error of law in finding the accused guilty of the charge so levelled against him, for the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submits that 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. 
 
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. Emdadul Hoque stated that the occurrence took place on May 15, 2003 at about 5.00/6.00 P.M. at the house of  his son-in-law, accused Azaharul. At that time his nephew Shahidul Islam and son Rashidul came out from the house of his elder daughter Aziya Khatun  and on the way they went to the  house of accused Azharul and saw that the accused was verbally abusing his daughter Shahida. His son Shahidul  informed him that accused Azaharul had demanded money and being refused, the accused verbally abused Shahida. Thereafter, in the evening his son informed him that his daughter Shahida had been killed.  He went to the house of the accused  Azaharul Islam and saw the dead body of Shahida lying in the veranda. Next day at around 10.00 A.M he went to Kishorgonj Police Station where he was told by the Officer-in-charge that an Unnatural Death case had already been lodged by the accused Mazidul about victim Shahida. He further stated that after performing Post Mortem of the dead body he went to Police Station for lodging FIR but the O.C. refused to receive the FIR. Thereafter, he went to Court and filed the instant case. He proved the ejahar and his signature so endorsed thereon and marked as Exts 1 and 1/1 respectively. He had declared hostile and cross-examined by the prosecution. 
 
P.W. 2. Rashidul Islam stated that the occurrence took place on May 15,  2003 at around 4.00/4.30 P.M. and on the following day, afternoon, he along with his uncle Shahidul Islam, on the way to return back from the house of his sister Azia Khatun, they went to see his younger sister Shahida at her husband's house and then came back to their house. He had been declared hostile and cross-examined by the prosecution and defence. 
 
P.W.3. Md. Shahidul Islam stated that on May 15, 2003 at around 8.00 P.M. he received information that his niece Shahida had been killed in her husband's house. Next day, he went  to the house of the accused Azaharul and saw the dead body of Shahida. He heard that Shahida died of epilepsy. Prosecution declared him hostile and cross-examined. He denied the prosecution suggestion that it was not a fact that there was made a compromise between the informant and accused for which he gave evidence falsly.

P.W. 4. Emaz Uddin was tendered .
P.W. 5. Amir Hamza was tendered .
P.W. 6. Saiadar Rahman  was  tendered.  
P.W. 7. Idris Ali was tendered.
P.W. 8. Abdus Samad was also tendered.
P.W. 9. Dr. Abdul Mozid Sarker stated that on May 17, 2003 he was stached to Sadar Hospital, Nirphamari as Medical Officer. On the following date, according to identification of Constable Abu Bakkar Siddique  he held the post mortem of the victim Shahida. During the post mortem, he  found the following injuries:
One bruise about 3 x 2over right parietal and frontal region of head. Antemortem blood clots found over the right lateral part of chest 3 x 2 in lower part. Antemortem blood clots found underneath the injury.
One bruise over the right lateral part of chest 3'' x 2'' in lower part. Antemortem blood clots found underneath the injury.
 
In his opinion the death was due to shock and heamorrhage as a result of above mentioned injures which was antemortem and homicidal in nature. He proved the post mortem report and his signature so endorsed thereon and marked as Exts 2 and 2/1 respectively.
 
P.W.10. Md. Abu Bakar Siddique, Constable, stated that on May 16, 2003 at around 12.30 hour he went to the spot and was taken the dead body of the victim for post mortem. After held post mortem, he handed over the dead body. He proved the copy of the  chalan of the dead body and his signature so endorsed thereon and marked as Exts. 3 and 3/1 respectively.
 
P.W.11. Md. Mortuza Ali S.I stated that on May 16, 2003 he was attached to Kishorgonj Police Station, Nilphamari. On the basis of the allegation of the informant the Officer-in-Charge (O.C) filled up the FIR form.  His (O.C) hand writing was known to him and he identified the FIR form as Ext. 4 and his signature as Ext. 4/1.  He further stated that on the basis of allegation, he started an Unnatural Death case and handed over the  same to A.S.I Kamal Mohan Chaki for investigation. He identified the U.D case and his signature so endorsed thereon and marked as Exts. 5 and 5/1 respectively.  
 
P.W.13. Kamal Mohan Chaki stated that on May 16, 2003 he was attached to Kishorgonj Police Station, Nilphamari. He went to the spot and prepared the inquest report of dead body of victim Rashida. He proved the inquest report and his signature so endorsed thereon and marked as Exts. 6 and 6/1 respectively.
 
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 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: Deceased 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 deceased wife Shahida in the same house, the convict-appellant had an obligation to explain how his wife met with death. The plea adopted from the side of husband convict-appellant stood proved to be false. From the above, the legitimate conclusion that inevitably flows is that it is the husband convict-appellant who had killed his wife deceased Shahida.
  2. Second Circumstance: Medical evidence: Dr. Abdul Mozid Sarker (PW 9) found   one bruise about 3 x 2 over right parietal and frontal region of head. Antemortem blood clots found over the right lateral part of chest 3 x 2 in lower part. Antemortem blood clots found underneath the injury. One bruise over the right lateral part of chest 3'' x 2'' in lower part. He recorded opinion that the victim died due to shock and heamorrage as a result of injuries which was atemortem and homicidal in nature.
  3. Third Circumstance: Accused Mazidul brother of convict Azaharul was lodged an Unnatural Death case with the Kishorgonj Police Station in respect of the death of deceased Shahida. Strategy adopted by convict-appellant that victim died committing suicide and this conduct speaks volumes against him and inference of guilt of convict-appellant can be easily gathered.
  4. Fourth Circumstance: False plea adopted by convict-appellant: Strategy adopted by convict-appellant that victim Shahida was died committing suicide. This plea stood totally nullified by medical evidence of Dr. PW.9. This false plea added an additional link to complete the chain of circumstance. 
Circumstance noted above do not at all suggest innocence of convict-appellant rather formidably suggest his involvement in the murder of his wife deceased Shahida 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 deceased Shahida.  
 
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 endeavour 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. The prosecution witnesses testify the demand of dowry by convict-appellant but the prosecution witnesses had totally given a go-bye to the prosecution case and betrayed the cause of the victim who was done to death by convict-appellant.
 
From circumstantial evidence it had come to light that convict-appellant had caused the death of deceased and a clear case of murder had been brought home to the door of convict-appellant. 
 
This takes us to a legal debate of funda-mental 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 circumstantial 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 Additional District and Sessions Judge, Nilphamari as well as Nari-O-Shishu Nirjatan Daman Bishes Adalat, Nilphamari. Judgment demonstrates that learned Additional 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-Shishu case by the Tribunal or as a Sessions case by learned Sessions Judge 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 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. Conseq-uential 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 Section4(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 be 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 Ends 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 Ordinace 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 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 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.
 
Convict-appellant is aged about 25 years when he was examined under section 342 of the Code of Criminal Procedure. 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 5,000/-and in default of payment of fine to suffer rigorous imprisonment for 6(six) months more.
 
The prosecution failed to prove the charge against the accused Mazidul Islam. He may be acquitted.   
 
On the premises of the foregoing discussion, the following orders are passed:
  1. Death Reference No. 45 of 2009 is rejected.
  2. Jail Appeal No. 455 of 2009 stand dismissed with modification of conviction and sentence. Judgment of conviction and sentence dated June 29, 2009 passed by Nari-O-Shishu Nirjatan Daman Tribunal, Nilphamari in Nari-O-Shishu Case No.430 of 2003 is modified in the epithet that convict-appellant is found guilty of the offence of section 302 of 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. 5,000/- and in default of payment of fine to undergo rigorous impris-onment for six (6) months 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 35A of the Code of Criminal Procedure. The Jail Superintendent, Nilphamari is directed to shift the condemned-prisoner from death cell into the common accommodation for the convict-person. 
Criminal Appeal No. 5541 of 2009 is allowed. If he (Mazidul Islam) was not found guilty of charge, he is acquitted. He is discharged from bail bond as he enjoyed previous bail. Let a copy of the judgment be sent to the Nari-O-Shishu Nirjatan Daman Tribunal, Nilphamari.

Send down the lower court records at once.

Communicate this order at once.

End.