The State Vs. Jashim Uddin @ Iqbal and another, 2016(1) LNJ 51

Case No: Death Reference No. 21 of 2010

Judge: A. N. M. Bashir Ullah,

Court: High Court Division,,

Advocate: Mr. Shafiul Bashar Bhandary,Mrs. Syeda Mymuna Begum,,

Citation: 2016(1) LNJ 51

Case Year: 2016

Appellant: The Stat

Respondent: Jashim Uddin alias Iqbal and another

Subject: Commutation/Reduction of Sentence, Law of Evidence,

Delivery Date: 2015-06-17

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Soumendra Sarker, J.
And
A. N. M. Bashir Ullah, J.
 
Judgment on
17.06.2015
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The State
-Versus-
Jashim Uddin alias Iqbal and another (Absconding)
. . .Convicts.
 
Evidence Act (I of 1872)
Section 106
When the dead body of a person is found in the house of the accused, the obvious conclusion would be that it is nobody but the accused murdering the victim had kept the dead body in their own house. . . . (70)
 
Evidence Act (I of 1872)
Section 8
Absconsion of an accused is not the conclusive proof of his guilt and sometimes to avoid the police harassment an accused may abscond. . . . (91)
 
Evidence Act (I of 1872)
Section 8
Abscondence of the accused is an incriminating circumstance connecting them in the offence and conduct of a person in aboscondence after commission of crime is an evidence to show that they are concerned in the offence. . . . . (94)
 
Evidence Act (I of 1872)
Section 8
The unbreakable chain of circumstances along with the aboscondment of the convicts as has been found in this case which is also corroborated by the extra judicial confession of accused Parveen led us to hold that nobody else but accused Iqbal alias Jashim and Parveen forming a organised crime group or syndicate in order to earn something had committed the very gruesome and heart rending murder of a minor girl of 5 years. . . .(99)
 
Code of Criminal Procedure (V of 1898)
Section 376
The trial Court relying on the circumstantial evidence corroborated by extra judicial confession of Parveen rightly found Iqbal alias Jashim and Parveen guilty under sections 302/34 of the Penal Code and awarded them the sentence of death but we are of the opinion that the ends of justice would be met if the sentence of death is commuted to imprisonment for life to those convicts. . . .(101)
 
Haji Md. Jamal Uddin and others Vs. the State, 14 BLD 33; Safiqullah alias Kala Mia Vs. the State, 1985 BLD (HCD) 129, in para 21; Sharad Birdhichand Sarder Vs. The State, AIR 1984 (S C) 1622; Keshob Chandra Mistry and others Vs. The State, 1985 BLD (AD) 301; State Vs. Badsha Molla, 41 DLR (1989) at page 11; State Vs. Moslem, 55 DLR 116; State Vs. Md. Abdus Samad Azad, 9 BLC 39; Syed Ahmed Vs. Md. Abdul Khaleque and others, 51 DLR 43; Abul Kashem Vs. State, 56 DLR 133; Nizam Hazari Vs. State, 53 DLR 475; Mobrak Hossain Vs. State, 1981 BLD 286; Zakir Hossain and another Vs. State, 55 DLR 137 and  State Vs. Lalu Miah, 39 DLR(AD) 117 ref.
 
Mr. Shafiul Bashar Bhandary, DAG with
Mrs. Suchitra Sen Gupta with
Mrs. Anuwara Khanom, AAG’s
. . .For the State.
Mrs. Syeda Mymuna Begum, Advocate
. . . State defence for the convicts.

Death Reference No. 21 of 2010
 
JUDGMENT
A.N.M. Bashir Ullah, J:
 
        1. This Death Reference being no. 21 of 2010 under section 374 of the Code of Criminal Procedure (in short, the Code) has been submitted by the Divisional Druto Bichar Tribunal, Chittagong (in short, the Tribunal) for confirmation of sentence of death awarded by him upon the convicts Jashim Uddin alias Iqbal and Parveen convicting them under sections 302/34 of the Penal Code by his judgment and order dated 06.04.2010 in Chittagong Druto Bichar Tribunal Case no. 23 of 2009. The Tribunal also by the said judgment convicted accused Dulal under section 302/34 of the Penal Code and sentenced him to suffer rigorous imprisonment for life along with fine of Taka 50,000/- (fifty thousand) in default to suffer rigorous imprisonment  for 5(five) years.

        2. The prosecution case, as projected in the First Information Report (in short, the FIR) and also unfurled at trial, in short, is that Most. Sofura Begum, the informant of this case has been living at Barma Colony under Bayeejid Bostami Police Station of Chittagong Metropolitan town. She had a daughter Rozina who is the victim of the case and at the time of occurrence who is only 5 years old.

        3. On 08.12.2000 at 12'O noon Rozina taking her meal had gone towards the residence of Iqbal who is also a neighbour and tenant under Sofura Begum. Alamgir, 8 years old, another son of the informant Sofura Begum was searching Rozina for feeding her ire-cream. But Rozina was found missing till 4.00 pm. The informant and her other well wishers had searched Rozina hither to thither without any result. Iqbal had announced the missing news of Rozina from 4.00 pm to 6.00 pm through the mike and the informant paid Taka 300/- for his such service. Iqbal and Dulal had also searched Rozina after the announcement of the mike and at 9.00 pm of the night Iqbal and Dulal coming from in front of the toilet of the informant disclosed that they have got a message having information about Rozina. The gathering who were present there had gone through the letters and came to know that the kidnapper asked the mother of the victim to send Taka 12,000/- (twelve thousand) at “Balir Pahar” near KAFCO on the way to the mazar of Hazrat Mohsen Awlia. Iqbal cautioned the informant that it will be wise not to send more people to the kidnapper but for his such remarks the local people suspected him and confined him but at one stage Iqbal on the false plea to go into the toilet had fled away successfully at night.

        4. On the next morning, that is, on 09.12.2000 the informant had been also searching Rozina and at the same time were trying to collect the amount of Taka 12,000/- and at one stage of this occurrence Dulal Gazi and Saleh Ahmed asked Parveen, the wife of Iqbal to give a photo of Iqbal but Parveen asked them to find out the photo in their own ways and when they were searching her house for a photo of Iqbal found a gunny bag within the rack, the mouth of the bag was closed and opening the said bag found the dead body of Rozina within the said bag. The informant and other found the dead body of Rozina within the said bag.

        5. The informant, narrating the above facts lodged the FIR with Baeijid Bostami Police Station on 09.12.2000 at 18.05 hours and on the basis of the said FIR Baeijid Bostami Police Station Case no. 8 dated 09.12.2000 corresponding to G.R no. 911 of 2000 were started. Md. Ahsan Habib, sub-Inspector of Police having been in the place of occurrence on 09.12.2000 made an inquest report on the dead body of Rozina and sent the dead body through police constable Syed Ahmed (PW 15) to the morgue for the post mortem examination on the dead body of the deceased and accordingly post mortem examination was held on the dead body of the victim by PW 5 Doctor Prodip Kumar Chandra.

        6. The case was investigated by Police Sub-Inspector Ahsan Habib who at his turn arrested accused Parveen and Dulal, prepared sketch map and index of the place of occurrence, collected the post mortem examination report and tried to arrest accused Iqbal, examined the witnesses but before submitting the police report he was placed in a training at Dhaka for 6 weeks when the case was endorsed to Police Sub-Inspector Rezaul Karim for investigation. But before submitting the police report, Police Sub-Inspector Ahsan Habib joined in the Police Station and the case was again endorsed to him but before submitting report he was transferred elsewhere. Thus, the case was endorsed to Police Sub-Inspector Mofizuddin who on completion of the investigation submitted police report on 27.01.2002 recommending the trial of accused Parveen Akter alias Parveen, wife of Iqbal and Dulal, son of Solimuddin under sections 302/201/34 of the Penal Code and at the same time made an endorsement that though the allegations against Iqbal regarding the causing murder of Rozina has been established but his correct address could not be ascertained and he will be sent for trial whenever his correct address will be available to the police.

        7. The Metropolitan Magistrate Court, Chittagong on receipt of the police report making the case ready for trial sent the record to the Metropolitan Sessions Judge, Chittagong where the case record was received on 15.02.2004 and the case was registered as Sessions Case no. 78 of 2004 and on the same day it was transferred in the Court of Metropolitan Additional Sessions Judge, 4th Court, Chittagong for trial. When the case was pending in the Court of Metropolitan Additional Sessions Judge, 4th Court, Chittagong, the prosecution filed an application for further investigation to include accused Iqbal in the case on 22.03.2004 and the trial Court after hearing both the parties passed an order dated 07.07.2004 for further investigation in to the case by the Criminal Investigation Department (in short, the CID) of police and at this turn the case was investigated by the CID of Police and on completion of the investigation submitted a supplementary police report recommending the trial of accused Jashim Uddin alias Iqbal under sections 302/201/34 of the Penal Code.

        8. Since the accused Jashim Uddin alias Iqbal was an absconding accused from the very beginning of the case the Chief Metropolitan Magistrate, Chittagong making the case ready for trial sent the same again to the Metropolitan Sessions Judge, Chittagong where the case record was again received on 13.05.2009 it was registered as Sessions Case no. 850 of 2009 and on the same day it was transferred in the Court of Metropolitan Additional Sessions Judge, 1st Court, Chittagong where charge under sections 302/201/34 of the Penal Code was framed against the accused Parveen Akter alias Parveen, Dulal and Jashim Uddin alias Iqbal. Since all the three accused were fugitive on the date of framing charge their answers on the charge could not be recorded by the trial Court and when the said trial Court was  taking preparation for examining the witnesses the government transferred the case in the Druto Bichar Tribunal, Chittagong (in short, the Tribunal) by a gazette notification dated 31.05.2009 and accordingly the Metropolitan Additional Sessions Judge, 1st Court, Chittagong making an endorsement to that effect sent the record on 14.07.2009 to the Tribunal and the record was ultimately received by the Tribunal on 19.07.2009 where the case was re-numbered as Sessions Case no. 23 of 2009.

        9. During the trial at Druto Bichar Tribunaol, Chittagong the prosecution examined 18 witnesses and tendered one witness who was not cross-examined by the prosecution and since the accused were fugitive  during the trial, state defence lawyers were appointed to defend the accused and though prosecution witnesses were cross-examined by the state defence lawyer but after the completion of the recording of the evidence, the accused could not be examined under section 342 of the Code and the Tribunal considering the evidence and other materials on record found the accused Iqbal, Parveen and Dulal guilty under section 302 read with section 34 of the Penal Code by his judgment and order dated 06.04.2010 and awarded death sentence upon Jashim Uddin alias Iqbal and Parveen and sentenced Dulal to suffer rigorous imprisonment for life with a fine of Taka 50,000/- and also found them guilty under section 201of the Penal Code but no separate sentence was given under sections 201/34 of the Penal Code and after pronouncement of the judgment made the reference under section 374 of the Code for confirmation of the death sentence of Jashim Uddin alias Iqbal and Parveen.

        10. Mr. A.K.M. Zahirul Huq, the learned Deputy Attorney General with Mr. Md. Aminur Rahman Chowdhury and Mr. Shah Md. Hatem, the learned Assistant Attorney Generals appearing for the State having taken us through the FIR, charge sheet, the charge, evidence on record and the judgment under the reference passed by the Tribunal makes his submissions supporting the reference. He submits that a very painful and gruesome murder of the victim Rozina who was only 5 years old at the time of occurrence has been taken place in connection of the case for no fault of the victim Rozina or her mother and brother. Accused Jashim Uddin alias Iqbal along with his so-called wife Parveen very purposefully has been living in the place of occurrence which is in fact a Colony, that is, small houses in the disguise of tenant and he had come there one month before the date of occurrence in order to commit such type of organized crime of kidnap and murder.

        11. The learned Deputy Attorney General also submits that Parveen who has been shown as wife of Jashim alias Iqbal in fact she was not his wife. She and Dulal also are the partners of Jashim alias Iqbal who formed a crime party for committing such organized crime in this or that way in the locality and Rozina an innocent girl of 5 years have become the real victim in the hands of this group. The accused had kidnapped Rozina in order to realise a ransom of Taka 12,000/- only from the guardian of Rozina but ultimately they very brutally murdered Rozina through strangulation. Since Rozina was a very minor girl of 5 years there was no any minimum resistance on the part of Rozina and it was very easy for the accused to cause the death of such a minor girl of 5 years without any hurdle and hindrance. As such, no neighbour could have detected anything of the said murder of Rozina.

        12. He next submits that when everybody was searching Rozina, Iqbal as a resident of the said Colony along with Dulal played a very fantastic drama showing a letter containing message that the victim Rozina has been kidnapped by the kidnapper for Taka 12,000/- and Jashim alias Iqbal and Dulal disclosing the contents of the said letter also asked the informant not to share the same with others, in that case, the victim may face an ill fate. The behaviour of the accused were very much alarming, as such, the local people had suspected the involvement of the accused Jashim alias Iqbal and Dulal with the occurrence of this case.

        13. He also submits that whenever such a letter was found at the instance of accused Jashim alias Iqbal and Dulal the neighbours had suspected Jashim alias Iqbal and he was in the close guard of the informant party but ultimately on the false plea of attending natural call Jashim fled away successfully immediately after occurrence from the place of occurrence and thereafter he has been never found till now and that is a strong circumstances to hold that nobody else but Jashim alias Iqbal had committed the crime of murder of Rozina along with his other accomplice.

        14. He also submits that on the following day on 09.12.2000 the dead body of Rozina was found within a closed gunny bag in the rack of the house of Jashim Uddin alias Iqbal and Parveen and the dead body was recovered in presence of the local witnesses from the said rack which ultimately clearly indicates that nobody else but the dwellers of the hut committed the murder and thereafter concealed the dead body within the rack putting the same within a gunny bag and it is also in the evidence on record that the rack was under the lock and key and the key was in the possession of the accused Parveen. The witnesses taking the key from Parveen unlocked the rack and found the dead body. So, the very natural and irresistible conclusion would be that nobody else but Jashim alias Iqbal, his wife Parveen and Dulal after causing the murder of Rozina concealed the dead body in a rack within their house.

        15. The learned Deputy Attorney General very candidly submits that it is fact that there is no eye witness of the occurrence but the circumstantial evidence in some times may be more stronger than that of the eye witnesses. The dead body was found within the house of Jashim Uddin alias Iqbal and Parveen. So, it is nobody but accused Iqbal and Parveen who had murdered Rozina and kept the dead body in their own hut within a gunny bag. Had the murder been committed by any other person other than the dwellers of that hut, the dead body would not be in the house of the accused Jashim alias Iqbal and his wife Parveen. This very strong circumstances has proved the prosecution case that nobody else but the Jashim Uddin alias Iqbal, his wife Paveen and Dulal had committed the gruesome murder of Rozina and the trial Court on the right assessment of the evidence and other materials on record found them guilty and considering the gravity of the offence and the involvement of the accused Jashim alias Iqbal and Parveen rightly awarded death sentence upon them and imprisonment for life upon Dulal. So, the judgment and the order of conviction and sentence as awarded upon the convicts did not call for any interference from this Court. Thus, according to his submissions there is no ground for interference in the judgment and order of conviction and sentence of the convicts and with these words he canvasses for the acceptance of the death reference for convicts Jashim and Parveen and with this submission he concluded his submissions in this death reference.

        16. On the other hand, Syeda Mymuna Begum,the learned state defence lawyer appearing for the convicts Jashim Uddin alias Iqbal and Parveen makes her submissions opposing the death reference. She submits that it is fact that Rozina a 5 years old girl was murdered in connection of this case and though the convicts have been made accused in this case but there is no any eyewitness of the occurrence that the convicts had murdered the deceased. The convicts are also the dwellers of Burma Colony where the informant has been living with his other family members. Had the murder been committed by the convicts that would have been revealed to the neighbours. An offence may be grave but before convicting the accused their involvement with the occurrence must be proved by legal evidence but in this particular case there is no any legal evidence to convict the accused. The convicts Jashim and Parveen have been living in the place of occurrence as husband and wife and though the dead body was found in their house but they had no knowledge about the same and without any eye witness of the occurrence the accused should have not been convicted and sentenced under sections 302/34 of the Penal Code.

        17. She also submits that the trial Court in fact without any proper scanning and scrutinizing of the evidence on record emotionally found the accused guilty under sections 302/34 of the Penal Code and awarded the highest sentence of death upon the accused Jashim alias Iqbal and Parveen. The materials on record did not justify the conviction and sentence of the convicts Jashim alias Iqbal and Parveen.

        18. She also submits that abscondent of an accused is not any evidence or strong circumstances against him or them that they have committed the murder of the deceased. An accused may go on abscondment for many reasons but that should not be the only criteria to consider his or their involvement with the occurrence of offence. The learned Advocate in her concluding submissions submits that in her estimation it is a case of nil evidence, so the death reference should be rejected acquitting the convicts Jashim alias Iqbal and Parveen from the charge levelled against them.

        19. We have considered the above submissions and the arguments of the learned Advocates of both the parties with profound attention and have gone through the materials on record particularly the FIR, charge, evidence, inquest report, postmortem examination report, judgment pronounced by the trial Court and the other materials on record meticulously.

        20. Now, in order to appreciate the arguments as advanced by the learned Advocates of both the parties in support of the reference and also in support of the convicts, let the evidence on record be critically scrutinized and analyzed for determination whether the prosecution could prove beyond all reasonable doubt that the convicts had committed the murder of victim Rozina.

        21. PW 1 Safura Begum, the informant as well as the mother of the victim Rozina has said that Rozina is her daughter who was 5 years old at the time of occurrence, on 08.12.2000 at 12'O noon Rozina taking meal had gone towards the house of their tenant Iqbal, Alamgir his another son coming her house with ice cream was searching Rozina but Rozina was found missing, thereafter, she and others had been searching Rozina hither to thither but ultimately could not trace her, at 4.00 pm Iqbal had approached her to announce the missing news of Rozina through mike and ultimately he (Iqbal) announced the same till 6.00 pm, at 9.00 pm of the night Iqbal and Dulal coming from in front of a toilet showed a letter having information about Rozina containing a direction to send Taka 12,000/- at “Balir Pahar” of KAFCO on the way to the mazar of Hazrat Mohsen Awlia  where there will be a man with a cap on his head and he will receive the money and in the letter there was also a caution not to share it with the police and other people.

        22. She further stated that for the letter the local people had strongly suspected accused Iqbal land Dulal and the local people asked Iqbal and Dulal to write something but Dulal did not know to write and Iqbal though started to write but for his nervousness ultimately could not write, the local people considering the prevailing circumstances had suspected Jashim alias Iqbal and confined him in her house but at one stage of the night he on the false plea of attending natural call had fled away successfully and on the following morning the informant and others  were searching Rozina and at the same time she was trying to procure Taka 12,000/-when the local people also asked her to lodge a G.D entry against Iqbal but they were also telling that to lodge a G.D they need a photo of Iqbal and to that end Dulal, Gazi and Saleh had gone in the house of Iqbal to  collect a photo of Iqbal, the wife of Iqbal asked them to find out the photo on searching, they took the key of a rack of bamboo from Parveen and unlocking the said rack found a closed plastic bag within the rack and opening the said bag found the dead body of Rozina, the local people including herself found the dead body of Rozina within the said bag, Parveen took an attempt to flee away but failed, the local people caught her and ultimately the police arrested her when she told the local mob that Iqbal is not her husband but she was living with Iqbal and she also disclosed that she, Iqbal and Dulal murdering Rozina had concealed the dead body in that manner. She having been in the police station narrated the above facts and on the basis of her such disclosure the FIR was recorded. She proved the FIR and her signature in it, marked exhibits 1 and 1/ka. She further stated that the accused are not available in the dock and had they been in the dock she could have identified them.

        23. In the cross-examination of the state defence lawyer she stated that Iqbal was inducted in the house as tenant one month eight days before the occurrence and she had no any enmity with Iqbal, she did not witness the occurrence of murder of her daughter. She denied the defence suggestion that Iqbal did not murder her daughter.

        24. PW 2 Kulsuma Begum, another tenant and neighbour of the informant Sofura Begum testified that Iqbal and Parveen as husband and wife had rented a house by her side, on the following day of the occurrences she heard about the occurrence that Rozina is missing and at 12'O noon she heard that the dead body of Rozina has been found within the house of Iqbal, she found the local people to bring out the dead body of Rozina from the house of Iqbal. In cross-examination she stated that she did not find to bring out the dead body from the house of Iqbal.

        25. PW 3 Saleh Ahmed, the full brother of the informant testified that on 08.12.2000 at mid day Alamgir, the son of his sister had told him that Rozina is missing and in the afternoon he having been in the house of Sofura found her crying and thereafter he had gone in his own house which is also adjacent to the house of the informant, at 9.00 pm of the night he heard the hue and cry from the place of occurrence and he having been there came to know that Iqabal and Dulal had got a letter from in front of the latrine wherein it has been disclosed that on payment of Taka 12,000/- to a particular man at a hill on the way to the mazar of Hazrat Mohsen Awlia, Rozina will be found, they suspecting Iqbal confined him and at 11.00 pm of the night he again went back in his house and on the following morning he coming to the house of her sister came to know that Iabal had fled away tactfully and in order to  make a G.D entry they were searching for a photo of Iqbal and they asked Parveen to give a photo of Iqbal but Parveen asked them to find out the  photo of Iqbal in their own way and at one stage of their such searching opened the door of a bamboo rack taking the key from Parveen and found a plastic bag within the rack and opening the said back found the dead body of Rozina within the bag when Parveen took an unsuccessful attempt to flee away, the police coming to the place of occurrence made inquest report on the dead body of Parveen. He proved the inquest report and his signature on it, marked exhibits 2 and 2/ka. Police seized the bamboo rack, plastic bag and a rope and the letter under a seizure list. He proved the seizure list and his signature in it, marked exhibits 3 and 3/Ka. He also identified the bamboo rack, marked material exhibit 1, plastic bag, material exhibit II, rope, material exhibit III and the letter, material exhibit IV.

        26. In cross-examination of the state defence he stated that the Burma Colony is not a crime zone. He denied the defence suggestion that Burma Colony is famous for wine, hemp and  organized crime etcetera. He denied the further defence suggestion that Rozina might have been murdered in the hands of any other crime group and he also denied the defence suggestion that the dead body was not recovered from the house of Iqbal and Parveen.

        27. PW 4 Ziaur Rahman, a neighbour of the informant has testified that he knew Rozina, on 08.12.2000 at 10.00 pm of the night he coming in the his house of the informant came to know that Rozina is missing, they searched Rozina hither to thither without any result, on the following morning they came to know that Iqbal and Dulal found a letter having  a demand for Taka 12,000/- as ransom for the safe recovery of Rozina, they asked Parveen to give photo of Iqbal but ultimately she without giving any photo  asked them to find out the same in their own way and at the time of their such searching they found a plastic bag within the bamboo rack and within the said bag they found the dead body of Rozina. Parveen admitted to them that she, Iqbal and Dulal in order to kidnap Rozina had murdered her and thereafter concealed the same. Police coming to the place of occurrence prepared inquest report on the dead body of Rozina. He proved his signature on it, marked exhibit 2(Kha). The wife of Iqbal also told to them that they staying in the different parts of the city used to kidnap the children and realise ransom. In cross-examination of the state defence he stated that he did not find the accused to murder the deceased.

        28. PW 5 Doctor Prodip Kumar Chowdhury, Medical Officer, Chittagong testified that on 10.12.2000 when he was posted as Medical Officer in the department of Forensic Medicine at Chittagong Medical College Hospital held the post mortem examination on the dead body of deceased Rozina, a 5 years old girl as produced by police constable Syed Ahmed of Bayeijid Bostami Police Station and at the time of post mortem examination he found the following injuries:
  1. One abrasion 2½˝X½˝ present on right side of the neck.
  2. Three bruises with nail mark ¼˝X⅛˝ each present on left side of the neck.
  3. Clotted blood present on both side of the neck (trachea) and also inside the trachea.
  4. Deep cyanosis present at nail bed of all fingers and toes.
29. He further stated that in his opinion death was due to asphyxia as a result of manual strangulation on neck which is antemortem and homicidal in nature. He proved the post mortem report and his signature in it, marked exhibits 4 and 4/Ka. In cross-examination of the state defence he stated that the injuries were old of 24 hours. He denied the defence suggestion that he prepared the post mortem examination report on the basis of the inquest report and challan of the dead body.

        30. PW 6 Md. Ziauddin, from village Selimpur of Sitakunda and the full brother of the accused Jashim Uddin alias Iqbal has testified that they are nine brothers and sisters in numbers out of which there are 6 brothers and 3 sisters and amongst the brothers Jashim is the eldest brother, Jashim was indisciplined and he had married his cousin without the knowledge of his parents and he used to commit theft of money from their own house and their father being annoyed of it boycotted him 10/12 years ago. He further stated that in the first part of 2000 a woman disclosing her as Parveen and wife of Jashim having been in their house told his mother that Jashim wanted to see her and relying on her such information he and her mother had visited Jashim at Burma Colony when Parveen instructed them to address Jashim as Iqbal, his mother advised Jashim to be honest and sincere. Thereafter, they had returned back to their native house and after a long gap on 23.09.2007 at 14.30 hours police having been in their house searched their house but could not recover anything. They were searching their house to find out Iqbal when he informed them that he has no any brother like Iqbal but he has a brother whose name is Jashim. Police ultimately asked them to give the photo of Jashim alias Iqbal and he handed over a photo of Jashim to the police. Police seized the said photo under a seizure list in presence of Kutubuddin member, Md. Moslem Uddin and Sergeant Rafiqul Alam. Police informed them that a minor girl has been killed at Burma Colony. After two days police brought them before the Metropolitan Magistrate, Chittagong where he and his parents deposed before the Magistrate, he proved his statements and his signature on it, marked exhibits 5 and 5/ka. In cross-examination of the defence he stated that he did not know anything about the occurrence of this case but heard it that a minor girl has been killed in connection of this case.

        31. PW 7 Aysa Khatun, the mother of accused Jashim alias Iqbal has testified that she has 6 sons and 3 daughters amongst which Jashim is the eldest son. Jashim was her arrogant son who used to do crime along with the committing of theft of money from her own house and for all these reasons his father had ousted him from their hut 9-10 years ago. Thereafter, they did not get any information of her son but after one year a women namely Parveen having been in their house and disclosing her identity as the wife of Jashim had informed her that her son Jashim wanted to see her. Thereafter, she had gone at Burma Colony with her second son Zia Uddin (PW 6) and found Jashim in a slum where Parveen instructed them to address her son as Iqbal in stead of Jashim, she advised him to be honest and sincere. Jashim told her that he would go to his native house later on. Ultimately she came back to her hut.

        32. PW 7 also stated that before 6/7 months of ousting her elder son Jashim an unknown person coming from Comilla with Taka 20,000/- had told them that his younger brother has been kidnapped and the kidnapper describing him as Jashim demanded Taka 20,000/- for the release of his younger brother, at that time Jashim was not present in their house and they did not receive the said money and after 2 days of that occurrence police arrested her and her husband and they were in the custody for about 2 months 18 days.

        33. She further stated that after 8/9 months of the dialogue between her and Jashim in 2000 at Burma Colony police coming into their hut was searching his elder son Iqbal but she told the police that she has no any son as Iqbal but Jashim is their elder son, she handed over a photo of Jashim which was seized by the police. Police brought them before the Metropolitan Magistrate, Chittagong for recording their statements and accordingly deposed before the Magistrate. She proved the statement made before the Magistrate, marked exhibit 6 and her signature 6/1. She identified a single and a dual photo of Jashim, marked material exhibits V and VI.

        34. In cross-examination of the state defence PW 7 stated that police had arrested them in a case where Jashim was also an accused. She denied the defence suggestion that the photos are not of Jashim. Prosecution tendered PW 8 Nurul Haque who is the father of accused Jashim and the defence declined to cross-examine him.

        35. PW 9 Muslemuddin testified that on 23.09.2007 at 14.30 hours police having been in the house of Nurul Haque had searched the house and seized two photos of Jashim under a seizure list in his presence. He proved the seizure list of those photos and his signature on it, marked exhibits 7 and 7/Ka. In cross-examination of the defence he stated that he had found Jashim before 15 years back.

        36. PW 10 Kutubuddin Member, a union parishad member of ward no. 1 of Salimpur union parishad testified that on 23.09.2007 at 14.30 hours police had seized 2 photos of Jashim and he identifying the said photos gave a certificate  to that effect, he proved his certificate and his signature on it, marked exhibits 8 and 8/Ka. He also stated that Jashim had not been living in the house of his parents for the last 12-13 years. In cross-examination of the state defence he stated that he had found Jashim 12 years ago.

        37. PW 11 retired sergeant Md. Rafiqul Islam testified that on 23.09.2007 police coming into the house of Nurul Haque had seized 2 photos of Jashim under a seizure list. He proved the seizure list and his signature on it, marked exhibits 7 and 7/Kha. In cross-examination of the state defence he stated that 10 years ago he had constructed house at uttar salimpur but his paternal house is at uttar  Bashkhali.

        38. PW 12 Md. Gazi testified that on 08.12.2000 he used to live at Burma Colony under Bayeejid Bostami Police Station. Sofura Begum was his neighbor, on 08.12.2000 in the evening he coming back from the garments came to learn that Rozina, the minor girl of Sofura Begum was missing. Iqbal at the instruction of Sofura Begum had announced the said news though mike, at 12’O clock f the night he came to know that a letter has been sent asking to make payment of Taka 1`2,000/- as ransom for the release of Rozina whereupon they suspected Iqbal as such he was confined but on the false plea to attend a natural call he fled away successfully which created more doubts in their minds, on the following day on 09.12.2000 the local people found the dead body of Rozina within a bamboo rack in the house of Iqbal in presence of Dulal. At the time of recovery of the dead body of Rozina he was on the door of the said house. He found the dead body within the bag, Parveen told to him and others that she, Iqbal and Dulal in order to realise ransom had seized Rozina and later on murdered her. Police had rushed into the place of occurrence and prepared inquest report of the dead body and took the dead body from the place of occurrence. He also stated that Dulal is known to him who also used to serve in a garments with him and also has been living in the same area as his neighbour. In cross-examination of the state defence PW 12 testified that his normal duty time in the garments is from 8.00 am to 5.00 pm but from time to time he used to work till 9.00/10.00 pm, he cannot say when the victim was murdered. He denied the defence suggestion that Parveen did not admit her guilt before him.

        39. PW 13 Kamal Uddin testified that on 08.12.2000 he used to live at C&B Colony and Sofura used to live 400/500 yards away from his house, on 08.12.2000 in the night they heard it from the announcement of the mike that Rozina was missing, on the following day at 12’o noon found the dead body of Rozina in front of the house of the informant. The local people was telling that the dead body of Rozina had been recovered from the house of Iqbal, Police made inquest report on the dead body of Rozina, he proved his signature on the inquest report, marked exhibit 2/Gha. In cross-examination of the state defence he testified that he did not see any body to recover the dead body.

        40. PW 14 Md. Mofiz Uddin testified that he was posted as Sub-Inspector of Police at Bayeejid Bostami Police Statiion on 28.10.2001 when the case was endorsed to him for investigation and before him the case was investigated by the Police Sub-Inspector Ahsan Habib, he perused the investigation done by his predecessor, visited the place of occurrence, examined the informant, since the sketch map and index prepared by his predecessor do tally with the place of occurrence he did not repeat the same, he filed petition in the Court for examination of Parveen Akter and Dulal on remand and since Dulal was granted bail the Court allowed his prayer for Parveen Akter only and he examined Parveen Akter and he in his investigation found that the accused Parveen Akter, Dulal and Iqbal are involved with the murder of Rozina but Iqbal was not sent for trial as his address could not be detected and he submitted police report on 27.01.2002 recommending the trial of accused Parveen Akter and Dulal with an endorsement that subject to availability of the address of Iqbal he will also be sent for trial through supplementary police report. In cross-examination of the state defence he stated that he did not find any direct evidence of murder of Rozina. He denied the defence suggestion that he without any proper investigation submitted a perfunctory charge sheet in the case.

        41. PW 15 Police Constable Syed Ahmed (retired) stated that on 09.12.2000 he was posted at Bayeijeed Bostami Police Station, on that date at 13 hours he along with Police Sub-Inspector Ahsan Habib had gone at Burma Colony where they found the dead body of a minor girl in the house of Iqbal but they did not find Iqbal though found his wife Parveen who admitted that Iqbal had murdered Rozina, the police officer preparing the inquest report on the dead body of Rozina sent the same to the morgue through him and he on completion of the post mortem examination on the dead body returned back the same to her relatives. In cross-examination he stated that he had gone in the place of occurrence at 13.30 hours and he cannot say how the victim was murdered.

        42. PW 16 Mir Zahidul Haque, Sub-Inspector of Police testified that on 09.12.2000 he was posted at Bayeijid Bostami Police Station at Chittagong and as duty officer   recorded the present case on the basis of oral statements of the informant Sofura Begum under section 302/34 of the Penal Code, he filled up the FIR columns in order to record the case. In cross-examination of the stated defence he stated that he was not acquainted with the facts and figure of the case and he had recorded the case only.

        43. PW 17 Narayan Proshad Roy, a retired Assistant Superintendent of Police testified that on 09.11.2006 when he was posted in the CID zone, Chittagong the case was endorsed to him for investigation and he received the case docket from Assistant Superintendent of Police Abdul Hamid, he visited the place of occurrence, perused the investigation done by his predecessor, he found no wrong in the sketch map and index of the place of occurrence, he examined the informant and other relevant witnesses, he also examined Parveen on remand on 23.09.2007 when she disclosed that the real name of accused Iqbal is Jashim and his brother’s name is Md. Ziauddin. She also disclosed that Jashim is from Fouzderhat of Sitakundu. Thereafter, he had gone in the house of Jashim at Fouzderhat, Sitakundo where Parveen identified the mother of the accused Jashim and brother Ziauddin, the mother of Jashim also told them that the real name of her son is Jashim Uddin, the parents of Jashim and the local people were telling that Jashim is a man of bad character and he did many misdeeds, the mother of Jashim told him that in the first part of 2000 he going to Burma Colony had met her son Jashim and advised him to be modest but ultimately failed, he proved his signature on the seizure list of photos of Jashim, marked exhibit 7/Ga. He identified those photos in the trial Court, marked material exhibits V and VI. He further stated that he had recorded the statements of the parents of Jashim and Ziauddin and also produced them before the Magistrate for recording their statements under section 164 of the Code and he got the correct address of Jashim Uddin alias Iqbal, son of Nurul Haque of village Uttar Salimpur, Fouzderhat Goni Miar Bari of Sitakundo Police Station under Chittagong district and submitted a supplementary police report on 30.11.2007 recommending the trial of Jashim alias Iqbal in connection of this case.

        44. In cross-examination of the state defence he denied the defence suggestion that Parveen did not tell anything to him and Parveen did not accompany them in the house of parents of Jashim. He denied the further defence suggestion that he without any proper investigation submitted a perfunctory charge sheet in the case.

        45. PW 18 Md. Hamidul Haque, a retired Assistant Superintendent of Police testified that  on 06.08.2005 he was posted as A.S.P in the CID zone, Chittagong and on the direction of the authority he started to investigate into the Bayeejid Bostami Police Station Case no. 8 dated 09.12.2000, he perused the investigation done by his predecessor, he found that though the allegation of causing murder of the victim was found against accused Iqbal but since his correct address could not be ascertained he was not sent up for trial, he visited the place of occurrence and at his tenure he was trying to collect the correct address of accused Iqbal but at one stage he was transferred to elsewhere, as such, he handed over the case docket to A.S.P Narayan Proshad Roy.

        46. In cross-examination of the defence he stated that he did not record the statement of any witness under section 161 of the Code and he also could not collect the name of accused.

        47. PW 19 and the last witness Narayan Chandra Proshad Roy who was in fact examined as PW 17 in this case but the materials on record go to show that he as PW 17 gave evidence in support of the investigation done by him and he as PW 19 tried to give evidence supporting the investigation held by Police Sub-inspector Ahsan Habib who is the 1st Investigation Officer of this case.

        48. However, PW 19 testified that Police Sub-Inspector Ahsan Habib was the 1st Investigating Officer of this case who on 09.12.2000 being informed about the occurrence through police wireless had gone at Burma Colony and found the dead body of Rozina in the house of Mannan, he had prepared the inquest report on the dead body and sent the same to the morgue for post mortem examination and he being appointed as the Investigating Officer seized the alamats of the case at 19.35 hours, he prepared the sketch map and index of the place of occurrence and also recorded the statements of the witnesses, he also arrested accused Parveen and Dulal from the place of occurrence and before completion of the investigation he was directed to attend a training as such he handed over the case docket to the concerned Officer-in-Charge and later on Police Sub-Inspector Md. Mofizuddin held the investigation and submitted police report recommending the trial of Parveen and Dulal with an endorsement that though the allegation of causing murder of Rozina has been established also against accused Iqbal but since his address has not been ascertained he could not be sent for trial but whenever his address will be available he would be sent for trial.

        49. He further stated that later on by the order of the Court the case was investigated by the CID A.S.P Abdul Hamid and when Abdul Hamid was transferred elsewhere the case was endorsed to him for investigation. He further stated that he had served with Police Sub-Inspector Ahsan Habib at Chittagong Metropolitan Police as such he is acquainted with the hand writing and signature of Ahsan Habib. He further stated that the inquest report, challan, seizure list, sketch map and index have been prepared by Ahsan Habib. He proved the signature of Ahsan Habib on those papers.

        50. In cross-examination of the state defence he stated that Ahsan Habib did not record the statement of any eye witness who had found the occurrence of murder. The prosecution could not seize any alamat of demanding ransom save and except the letter. The Burma Colony is a crime zone. He denied the defence suggestion that Ahsan Habib did not go to the place of occurrence and did not prepare the inquest report and did not write the challan and did not prepare any seizure list and sketch map, index etcetera.

        51. These are the evidences that have been given by the prosecution in this case. It appears that the prosecution examined 18 witnesses and tendered 1 witness in this case in order to prove the charge against the accused. Out of the 18 witnesses, examined so far, there is 1 doctor, 6 police personnel and the rest 11 are the local witnesses and within these 11 local witnesses PWs 6 and 7 are the brother and mother of accused Jashim alias Iqbal.

        52. As it appears from the prosecution case as well as from the evidence adduced at trial that the occurrence of murder of Rozina had not been witnessed by any witness. On 08.12.2000 after midday Rozina was found missing from her house as well as within the adjacent area of her house but on the following day on 09.12.2000  her dead body was found within a plastic bag in a bamboo rack in the house of accused Iqbal and Parveen and when the informant and others became sure that Rozina has been murdered.

        53. The inquest report (exhibit 2) prepared by Ahsan Habib is going to show that he found some blackish mark on the throat and neck of the deceased and he  did not find any notable injury on the person of the deceased.

        54. The post mortem examination on the dead body of the deceased was done by PW 5 Doctor Prodip Kumar Chowdhury who found one abrasion 2½˝X½ ˝ on the right side of the neck along with three bruises with nail mark ¼˝X⅛˝ each on both the left side of the neck and also found clotted blood on both sides of the neck and inside the trachea and in the opinion of the doctor death was due to asphyxia as the result of manual strangulation which is antemortem and homicidal in nature.

        55. The marks of injury as has been found by Ahsan Habib at the time of preparation of inquest report do tally with the post mortem examination report. The doctor found abrasion and bruises with the nail mark on the right and left side of the neck and the doctor (PW 5) considering the above injuries opined that Rozina met her death due to asphyxia as a result of manual strangulation. The medical evidence regarding the death of Rozina is very much consistent with the prosecution case. Over and above there is nothing in the record to show that Rozina met her death by any other means other than of the manual strangulation. So without any hesitation it can safely be said that the minor 5 years old Rozina was strangulated to death.

        56. Now, the vital question before us is as to who had strangulated Rozina to death as has been found in the medical evidence of this case. It is an admitted fact in this case that there is no eye witness of the occurrence of murder of Rozina. Prosecution examined 18 witnesses in this case but none of them found to murder the victim Rozina. From the evidence on record it appears that accused Iqbal who later on became Jashim, which is his real name was inducted as a tenant under Sofura Begum at Burma Colony under Bayeijid Bostami Police Station before 1 month 8 days of the occurrence with his so-called wife Parveen.
 
        57. In this case, the plain submissions of the prosecution is that though there is no eye witness of the occurrence of murder of Rozina but there is very strong circumstantial evidence against the accused which have been revealed from the evidence on record. Now, let us examine whether this submissions of the prosecution is justified or not.
 
58. PW 1 Sofura Begum in her evidence stated in the following ways:

“………………… তখন প্রতিবেশী দুলাল ও আমাদের সাথে খুঁজতে থাকে। রাত অনুমান ৯ টায় ইকবাল ও দুলাল আমাদের ঘরের পিছনে টয়লেটের দিকে যায় এবং সেখান থেকে এসে বলে রোজিনাকে পাওয়া গেছে। এই কথা বলে তারা দুজন আমাকে ১টি চিঠি দেয়। তখন উপসিহত লোকজন চিঠির খাম ছিড়ে এবং ভিতর থেকে ১টি চিঠি বের করে পড়েন। চিঠিতে লেখা ছিল যে আমার মেয়েকে নাকি দোকানের সামনে থেকে তুলে নিয়েছে। আমি যেন কোন ভাড়াটিয়ার সাথে আমার ছেলেকে দিয়ে ১২,০০০/- টাকা দিয়ে মোহছেন আওলীয়া মাজারে যাওয়ার পথে কাফকো বালির পাহাড়ে পাঠাই। সেখানে টুপী পড়া একজন লোক থাকবে। তাকে যেন টাকা দিয়ে আসে। ঘটনা যেন পুলিশকে না জানানো হয় বা এলাকার কোন মাস্তান পাঠানো না হয়। চালাকি করলে মেয়েকে হারাতে হবে। টাকা দিলে রাত ১১ টায় মেয়েকে গোডাউনের সামনে দিয়ে যাবে ………….”
 
        59. PW 3 hearing the hue and cry at 9.00 pm of the night of the occurrence when the letter was discovered coming into the house of Sofura Begum had heard about the contents of the letter and also heard that the letter was discovered by accused Iqbal and Dulal. PW 4 heard about the letter on the following morning while the PW 12 heard about the letter at 12.00 pm of the night of occurrence.
 
        60. The above noted letter was discovered by the accused Iqbal and Dulal for which the local people had suspected them and confined Iqbal in the house of the informant and it is in the evidence of PW 1 that when Iqbal was confined in her house, in the last portion of the night on the pretence to attend a natural call fled away successfully and from then he is absconding till now. He neither had faced the trial nor took any attempt appearing in the proceeding to prove his innocence.
 
        61. When PW 1 and her inmates took a decision to lodge a G.D entry on 09.12.2000 against Iqbal they were feeling to have a photo of Iqbal and on that pretext the inmates of PW 1 asked Parveen to hand over a photo of Iqbal and whenever the witnesses of this case were searching the house of Iqbal for a photo of Iqbal they found the dead body of Rozina within a bamboo rack in the house of Iqbal and Parveen. In this connection the evidence of PW 3 runs as follows:

“……………তখন ইকবালের স্ত্রী পারভীন বাসায় ছিল। তার নিকট ইকবালের ছবি চাই। সে আমাদেরকে ছবি খুজে নিতে বলে। এক পর্যায়ে তার নিকট হতে চাবি নিয়ে বাশের র্যাক খুলে দুলাল র্যাক এর ভিতর থেকে ১টি প্লাষ্টিকের বস্তা বের করে এবং মুখ খুলে। তখন বস্তায় রোজিনার লাশ দেখি। ঐ সময় পারভীন পালাতে চায় কিন্তু লোকজন তাকে ধরে ফেলে। আমরা লাশ বোনের বাড়ীতে এনে রাখি ……………”
 
        62. From the above noted gorgeous an dashing evidence of PW 3 it has been revealed as to how they had recovered the dead body of Rozina from the house of Iqbal and Parveen. PW 4 on the same subject stated in the following ways:

“……………আমরা ইকবালের ছবি চাইলে সে ছবি না দিয়ে আমাদেরকে ছবি খুঁজতে বলে। আমরা খুঁজতে খুঁজতে বাঁশের র্যাকেও খুঁজি এবং বাঁশের র্যাকের বাশের দরজা খুললে  ১টি বস্তা পাই। বস্তার মুখ খুলে সেখানে রোজিনার লাশ পাই। খবর পেয়ে পুলিশ আসে এবং রোজিনার লাশ নিয়ে যায় ……………”

63. PW 12 on the same subject stated in the following ways:

“……………পরদিন ৯/১২/২০০০ ইং তাং সকালে লোকজন ইকবালের ঘরে খুঁজে ১টি র্যাকের ভিতর প্লষ্টিকের বস্তায় রোজিনার লাশ পায়। তখন ইকবালের ঘরে পারভীন ছিল। সে ইকবালের স্ত্রী পরিচয়ে থাকত। লাশ পাওয়ার পর দুলাল প্রমুখ চিৎকার করে বলে যে রোজিনাকে পাওয়া গেছে। তখন আমি ঘরের দরজায় ছিলাম ……………” 

64. PW 1 as to the recovery of the dead body stated in the following ways:

“……………চিৎকার শুনে আমি সহ লোকজন দৌড়ে ইকবালের ভাড়া ঘরে যাই এবং রোজিনার লাশ দেখি। এই সময় ইকবালের স্ত্রী পারভীন পলাতে গিয়ে নালায় পড়ে যায় ……...”

        65. From the above noted evidence of PWs 1,3,4 and 12 it has been proved beyond all reasonable doubt that the dead body of Rozina was recovered from the house of Iqbal and Parveen which they had placed within a plastic bag and shelved within a bamboo rack.

        66. Now, if we consider the above noted evidence, facts and circumstances of this case along with the evidence of PWs 6 and 7 who are nobody but the full brother and mother of accused Iqbal we will get a clear picture as to the nature of job of accused Iqbal which he had been performing at the relevant time. PW 6 testified that in 2000 he and his mother had visited the house of accused Iqbal at Burma Colony when they were instructed by accused Parveen to address Jashim as Iqbal. What does it indicate? It indicates and shows that Iqbal had taken shelter in the Burma Colony changing his name to commit such type of organised crime.

        67. PW 7 the mother of Iqbal stated about an occurrence of crime committed by her son accused Jashim in the following ways:

“……………জসিমকে ত্যাজ্যপুত্র করার ৬/৭ মাস পূবে কুমিল্লা থেকে একজন লোক ২০,০০০/- টাকা নিয়ে আমাদের বাড়ী আসে এবং বলে যে তার ছোট ভাইকে অপহরণ করা হয়েছে এবং জসিম নামে একজন মোবাইলে বলেছে যে ২০,০০০/- টাকা দিলে ছেলেকে ফেরত দিবে। তখন জসিম ঘরে ছিল না। আমরা টাকা নেইনি। এর ২ দিন পর পুলিশ আমার স্বামীকে ও ২য় ছেলেকে ধরে নিয়ে যায় এবং ২ মাস ১৮ দিন পর খালাস পায় ……………”

        68. From the above noted fantabulous and unimpeachable evidence of the mother of the accused Jashim alias Iqbal it has been found that the offence of kidnap followed by murder of Rozina is not the first offence committed by Iqbal rather he had started this type of job much earlier and from the evidence of PW 7 it is clear that a victim  party had come to her to hand over the ransom of a kidnap committed by Jashim but ultimately though the mother and father of Jashim did not receive the said amount but they were put into the jail. As such we get a clear picture as to the nature of the job of accused Iqbal which he had chosen at the relevant time.

        69. PW 7 also supporting the evidence of PW 6 stated that whenever she had visited the house of Jashim at Burma Colony in the year 2000 she was instructed not to address her son Jashim as Jashim but as Iqbal. These are all the incriminating circumstances against the accused Iqbal.

        70. When the dead body of a person is found in the house of the accused, the obvious conclusion would be that it is nobody but the accused murdering the victim had kept the dead body in their own house. In this particular case the dead body of Rozina was recovered from the house of Iqbal and Parveen. So, it is clear like anything else that nobody else but the dwellers of that hut had committed the murder of Rozina thereafter in order to hiding the dead body kept the same within their house.
 
        71. In the case of Haji Md. Jamal Uddin and others-Vs- the State, 14 BLD 33 this Court has given a valuable observation as to when the accused can be convicted relying on the circumstantial evidence alone. In the reported case it has been held in the following ways:
 
“Now, the principle of law for convicting the accused only on the basis of circumstantial evidence has been well-settled by many decisions of our Court, a few of them may be mentioned here, one of which is in the case of Safiqullah alias Kala Mia –Vs-the State, reported in 1985 BLD(HCD) 129, in para 21, wherein it has been observed:
 
66. It has been well settled that when a case rests on circumstantial evidence, such evidence must satisfy, 3 tests:-
 
i. the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
ii. those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.
iii. the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within the human probability, the crime was committed by the accused and none else. The circumstantial evidence, in order to sustain conviction, must be complete chain and incapable of explanation of any other hypothesis than that of the guilt of the accused. It must be qualitatively such that on every reasonable hypothesis, the conclusion must be that the accused is guilty not on fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances.” And similar principles have been laid down in the case of Sharad Birdhichand Sarder-Vs-The State reported in AIR 1984(SC) 1622, and also in the case of Keshob Chandra Mistry and others-Vs-The State reported in 1985 BLD(AD) 301, wherein it has been held by their Lordships:

    “Where all the evidence is circumstantial, it is necessary that cumulatively its effect should be to exclude and reasonable hypothesis of the innocence of the accused.”
   
     The above principle has been followed in the case of State-Vs-Badsha Molla reported in 41 DLR (1989) at page 11 to which I am a party.
 
         72. Now, keeping in view the above principles, if we examine the circumstantial evidence as in this case we find that there appears a unbreakable chain of circumstances which obvious conclusion is that nobody else but accused Iqbal land Parveen had committed the murder of Rozina and the chain of circumstances has established basing on the following facts.
 
        73. Firstly, Iqbal and Parveen had been living as tenant of Sofura Begum in an adjacent house of Rozina.
 
        74. Secondly, immediate after missing of the victim Rozina, a letter was discovered at the instance of accused Iqbal and Dulal.
 
        75. Thirdly, the dead body was recovered from the house of accused Iqbal and Parveen.
 
        76. Forthly, when the local people had suspected accused Iqbal he was confined in the house of the informant from where he fled away successfully on the false plea to attend a natural call and Parveen also became absconding releasing on bail and still they are futigive.
 
        77. Fifthly, this is not the only kidnap and murder by accused Iqbal rather before 2000 he had kidnapped a boy for which Taka 20,000/- was demanded and the same was tendered to his mother although his mother did not receive the same.
 
        78. Sixthly, Iqbal had been residing in the place of occurrence changing his real name with a woman who was not his legal and married wife and whenever a person changes his name it means that he had the intention to commit crime and in order to escape from the hands of the legal action this type of calculated device is used by the veteran criminal.
 
        79. Now, though in this case there is no eye witness of the occurrence but the above noted established facts have formed a strong chain of circumstances which led us to hold irresistibly that nobody else but accused Iqbal and Parveen had committed the murder of deceased Rozina. The culminative effect of the above facts exclude any reasonable hypothesis of innocence of the convicts Jashim alias Iqbal and Parveen.
 
        80. In the case of State-Vs-Moslem 55 DLR 116 it has been held that the circumstantial evidence, if convincing is more cogent than the evidences of eye witness. This Court in the reported case held in the following ways:
            “Circumstantial evidence may be and frequently is more cogent than the evidence of eye-witnesses. It is not difficult to produce false evidence of eye-witnesses. It is, on the other hand, extremely difficult to produce circu-mstantial evidence of a convincing character and therefore, circumstantial evidence, if convincing, is more cogent than the evidences of eye-witnesses.” (para 48 of the judgment)
 
        81. In this case other than the circumstantial evidence there appears extra judicial confession of accused Parveen. Regarding the extra judicial confessions of accused Parveen, the evidence of  PW 1 runs as follows:

“……………ঐ সময় পারভীন জানায় যে ইকবাল তার স্বামী নহে। এমনিতেই তার ঘর করত। আমার মেয়েকে ইকবাল, দুলাল ও পারভীন খুন করে বস্তায় ভরে লুকিয়ে রেখেছিল………...”

82. On the same subject PW 4 stated in the following ways:

“……………লাশ পাওয়ার পর ইকবালের স্ত্রী আমাদের নিকট স্বীকার করে যে ইকবাল  ও দুলাল এবং সে রোজিনাকে অপহরণ করতে গিয়ে খুন করে এবং লাশ বস্তায় লুকিয়ে রাখে………...”

83. PW 12 stated in the following ways:

“……………পারভীন জানায় যে ইকবাল, সে ও দুলাল রোজিনাকে মুক্তি পণের জন্য আটক করেছিল এবং পরে খুন করে লাশ লুকিয়ে রেখেছিল………...”
 
84. PW 15 stated in the following ways:

পারভীন স্বীকার করে যে সে তার স্বামী ইকবাল রোজিনাকে খুন করেছিল।
 
        85. From the extra judicial confession of accused Parveen it appears that immediate after occurrences she candidly admitted that she, IQbal and Dulal had committed the murder of Rozina.
 
        86. In the case of State-Vs-Md. Abdus Samad Azad 9 BLC 39 it was held that extra judicial confession can be the foundation of conviction and consequential sentence of its maker.
 
        87. In the case of Syed Ahmed-Vs-Md. Abdul Khaleque and others 51 DLR 43 it has been held that if the extra judicial confessions is held faithful and acceptable, then conviction can be based on such confession without any corroboration. The details observations of this Court in that case runs as follows:

“Usually, as a matter of caution, Court requires some material corroboration to an extra judicial confessional statement, a corroboration which connects the accused person with the crime in question and extra judicial confessions, if true and voluntary, can be relied upon and a conviction can be based on the evidence of extra judicial confessional statement. Extra judicial confessions are not usually considered with favour but it does not mean that such a confessions coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. If after a careful and cautious scrutiny, the evidence4 as to extra judicial confessions is held truthful and acceptable and the words are clear and unequivocal, then conviction can be based on such confession without any corroboration.”(para 22 of the judgment)
 
        88. From the evidence of PWs 1, 4, 12 and 15 we find that they have consistently testified in the trial Court that Parveen candidly admitted that she, Iqbal and Dulal had committed the murder of Rozina though the PW 15 stated that Parveen told him that she and her husband had committed the murder. PW 15 is a police constable who carried the dead body from the place of occurrence to the morgue. Thus it seems to us that Parveen made her extra judicial confession at the initial stage of the case before PWs 1, 4 and 12 which was consistent with the prosecution case and thereafter when police arrived at the scene she also repeated the same.
 
        89. However, not only the extra judicial confession of Parveen but also the other circumstances which have been found in this case that she has been living with Iqbal but she was not the legal and married wife of Iqbal. From the facts of the recovery of the dead body from a bamboo rack which was under the lock and key, the key was in the possession of Parveen. So, this fact led us to hold that nobody else but she and Iqbal as the dwellers of the hut committing the murder of the deceased kept the dead body within the rack putting the same in a plastic bag in order to hide the occurrence of murder of Rozina. As such not only the circumstantial evidence against Parveen but her extra judicial confession alone is sufficient to find her guilty regarding the murder of the deceased.
 
        90. In this case both the convicts Jashim Uddin alias Iqbal and Parveen were fugitive accused at trial. In the case of Abul Kashem-vs-State 56 DLR 133 it was held that absconsion of the accused itself is not an incriminating material against an accused inasmuch as even an innocent person implicated in a serious crime sometimes absconds during the investigation to avoid repression by the police.
 
        91. It is fact that the absconsion of an accused is not the conclusive proof of his guilt and sometimes to avoid the police harassment an accused may abscond. But the record is going to show that immediately after occurrence accused Jashim Uddin had fled away and thereafter he was never found in the locality till now and another accused Parveen was arrested from the place of occurrence on 09.12.2000 and after a reasonable gap she was enlarged on bail on 24.02.2008 but from 06.05.2008 she is a fugitive accused. The above facts indicate that when the local people had suspected accused Jashim he perceiving the consequence of his involvement with the gruesome murder of Rozina fled away before the recording of the case while Parveen enlarging on bail became a fugitive accused from justice and till now they are fugitive and they were defended in the trial Court by the state defence lawyer as well in this Court also.
 
        92. Thus, we find that the trial of this case was held in the absentia of convict Jashim Uddin and Parveen from  the very early stage of  the  case and at present there is no whereabouts of them. Such abscondence of convicts Jashim and Parveen is considered to be a corroborating evidence against them (PLD 1969 SC 89, Gul Hassan and another-Vs-the State).
 
93. In the case of Nizam Hazari-Vs-State, 53 DLR 475 it was held in the following ways:

“No inflexible rule can be laid down on abscondence. Abscondence of an accused will be judged in the light of the facts and circumstances of the case. Absondence of accused, sometimes furnishes corroboration of prosecution evidence. But abscondence by itself may not afford corroboration to the interested testimony yet in the body of the evidence it has its own significance.”(para 23 of the judgment)
 
94. From the materials on record we find that soon after the occurrence convict Jashim had fled away and remained absconding during the trial and trial was held in his absentia.  And convict Parveen is fugitive from justice from 06.05.2008 when the case was awaiting for trial. Such abscondence of the accused is an incriminating circumstances connecting them in the offence and conduct of a person in aboscondence after commission of crime is an evidence to show that they are concerned in the offence.
 
95. In the case of Mobrak Hossain-Vs-State, 1981 BLD 286 it is held that absondence of accused is a relevant fact under section 9 of the Evidence Act and unless accused explains his conduct, absondence may indicate guilt of the accused.
 
96. Taking into account, the absconsion of the convict Jashim soon after the occurrence and Parveen before starting of the trial of the case furnish sufficient corroboration in the commission of crime and if all the materials are taken culminatively, point to the only hypothesis of the guilt of convicts and not towards their innocence.
 
97. In the case of Zakir Hossain and another-Vs-State 55 DLR 137 wherein it is held in the following ways:

“It is obvious that accused appellant remained absconding with clear cut guilty knowledge about his overt act in the occurrence resulting in murder of the son of informant, PW 1 Moslem and, as such, his absconsion will create adverse opinion against him. It is true that sometimes absconsion takes place due to apprehension of police harassment and threat but when absconsion takes place by anyone with guilty knowledge he cannot take any plea of police harassment.”(para 49 of the judgment)
 
        98. The above view has also been reflected in the case of State-Vs-Lalu Miah reported in 39 DLR(AD) 117 wherein it was held that absconsion by itself has no fault as it may be due to apprehension of police harassment, but absconsion with guilty knowledge will be an offence and it will be used against the absconder. From the case in our hands we have found that convicts Jashim Uddin alias Iqbal and Parveen remained absconding during trial of the case being quite aware of the proceeding against them with the guilty knowledge as to their direct participation in the offence about murder of the deceased Rozina. Therefore, in the light of above decisions, the absconsion of Jashim Uddin alias Iabal and Parveen with their above guilty knowledge will operate against them and it was not an absconsion for mere apprehension of police harassment or for any other reason.

        99. The unbreakable chain of circumstances along with the aboscondment of the convicts as has been found in this case which is also corroborated by the extra judicial confession of accused Parveen led us to hold that nobody else but accused Iqbal alias Jashim and Parveen forming a organised crime group or syndicate in order to earn something had committed the very gruesome and heart rending murder of a minor girl of 5 years. 

        100. Now, having regards to the above discussions and the evidence and other materials on record we find that the trial Court committed no error of law and fact in order to find the convicts Iqbal and Parveen guilty under sections 302/34 of the Penal Code for causing murder of Rozina.

        101. Now, as we have found it earlier that the trial Court relying on the circumstantial evidence corroborated by extra judicial confession of Parveen rightly found Iqbal alias Jashim and Parveen guilty under sections 302/34 of the Penal Code and awarded them the sentence of death but we are of the opinion that the ends of justice would be met if the sentence of death is commuted to imprisonment for life to those convicts.

        102. In the result, the Death Reference being no. 21 of 2010 against convicts Jashim Uddin alias Iqbal (still absconding) and Parveen (still absconding) is rejected but the conviction under sections 302/34 of the Penal Code against the said two convicts is upheld and the sentence of death is commuted into the sentence of imprisonment for life. Since these two convicts are absconding now, their sentence will run from the date of their arrest or they surrender to undergo the sentence.

        103. Let a copy of this judgment and order be communicated to the Court concerned at once along with the lower Court’s record.

         Ed.