The State vs. Md. Sajjad Ali 2016 (2) LNJ 22

Case No: Jail Appeal No. 30 of 2009

Judge: Quamrul Islam Siddique,

Court: High Court Division,,

Advocate: Mr. Md. Bahar Uddin-Al-Razi,Dr. Md. Bashir Ullah,Mrs. Yeadia Zaman,Mr. Mian Md. Shamim Ahsan,Mr. S.M. Shahjahan,Mr. Md. Moniruzzaman,,

Citation: 2016 (2) LNJ 22

Case Year: 2016

Appellant: The State

Respondent: Md. Sajjad Ali

Subject: Criminal Law,

Delivery Date: 2014-06-16

The State vs. Md. Sajjad Ali 2016 (2) LNJ 22
 
HIGH COURT DIVISION
(Criminal Appellate jurisdiction)
Quamrul Islam Siddique, J
And
A. K. M. Zahirul Hoaue, J
Judgment on
10.06.2014, 11.06.2014, 15.06.2014 and 16.06.2014
The State
Versus
Md. Sajjad Ali
...Condemned Prisoner
 
Code of Criminal Procedure (V of 1898)
Section 465
The learned Sessions Judge did not find that the accused was insane and that he did not accept the contention of the learned Lawyer of the accused that accused was incapable of making his defence. In fact, before he arrived at such decision, he should have taken specialist doctor’s opinion whether the accused was insane or not. It is said that the court is always expert of all experts but not always. In certain cases court should look for the expert opinion before giving its decision. Since the defence has been insisting right from the very beginning of the case that the accused is insane, the learned Sessions Judge should have obtained doctor’s opinion before forming his definite opinion as to the insanity of the accused. In such situation, the learned Sessions Judge should not have arrived at a decision on the basis of his unprofessional knowledge.         ...(90)
Criminal Trial
In the post mortem report it has been mentioned that the death was due to asphyxia following manual strangulation (throttling). But according to the confessional statement the cause of death was drowning. Therefore, we find that the confessional statement of the accused is not consistent with the prosecution case, the post mortem report and the inquest report. Another important point is required to be addressed here is that in the inquest report it has been stated that there was sign of burn on the person of the body of the deceased. But no where it has been stated in the post mortem report that there was sign of burn on the person of the body of the deceased. Again, the investigating officer (P.W. 15) has stated that on 06.08.2007, a G.D. Entry was lodged but he did not procure a copy of the G.D. Entry. Moreover, there is nothing in the record to show the result of the G. D. Entry. P.W. 4 who is the maternal grandfather of the deceased and the father of the informant stated that police arrested his two sons, namely, Ruhul and Reha in connection with the case. But they have not been made by accused in the case, even they have not been cited as witness in this case. The prosecution has not been able to prove the charge against the condemned prisoner beyond doubt. Therefore, the condemned prisoner is liable to be acquitted.       . . . (100 to 102)
Abul Kashem and others Vs The State, 56 DLR 132; Alkas Mia and others Vs The State, 25 DLR 398 (114G of the Evidence Act); Anisur Rahman and others Vs The State, 1986 BLD (AD) 79; Dahyabhai Chhaganbhai Thakkar, appellant Vs The State of Gujarat, AIR 1964(SC) 1563 (V 51 C 210) at page 1563; Gadu Mia Vs. The State 44 DLR 246); Hazrat Ali and Abdur Rahman Vs the State, 42 DLR 177; Ismail Sarker alias Sudam member and others, 33 DLR 320; Kawsarun Nessa and another Vs The State, 15 BLD 21; Liakat Ali alias Liakat Ali (MD) Vs The state, 42 DLR(AD) 30 (114G of the Evidence Act); Mizanul Islam alias Dablu Vs The State, 41 DLR (AD) 157; Mobarak Ali Vs Md. Hachi Miah, 17 DLR (1965) 68; Nikhil Chandra Halder Vs The State, 54 DLR 148; Rashid Vs. The State 10 DLR 532= PLD 1959-181; Sankappa Shetty, AIR 1941, Madras-326; Shama Tudu Vs The State, 1987 Crl. Law J. 618; Shamsuddin Sarker Vs The State, 11 DLR (SC) 365; Syed Nurul Azim Babar Vs the State, 14 MLR (AD) 364; The State Vs Khasru alias Syed Mostafa Hossain and another, 43DLR (AD) 182; Wally Ahmed alias Babi Vs The State, 58 DLR 433 and Woolmington Vs Director of Public Prosecutors, All England Law Reports, 1935 A.C. 462 ref.
Dr. Md. Bashir Ullah, D.A.G.with
Mr. Mian Shamim Ahsan, A.A.G,
Mrs. Yeadia Zaman, A.A.G.
. . . For the State
Mr. S.M. Shahjahan with
Mr. Md. Moniruzzaman, Advocates
. . . For the condemned prisoner
(In Death Reference No. 133/2008)
Mr. S. M. Shahjahan with
Mr. Md. Moniruzzaman, Advocates
. . . For the accused-appellant
(In Crl. Appeal No. 8657/2008)
Mr. Md. Bahar Uddin Al-Raji, Advocate
 
(In Jail Appeal No. 30 of 2009)
 
 
JUDGMENT
Quamrul Islam Siddique, J:
The learned Sessions Judge, Rajshahi referred this matter of death sentence for confirmation under section 374 of the Code of Criminal Procedure (shortly, Cr. P. C) to this Court. The reference has been numbered as Death Reference No. 133 of 2008.
  1. The learned Sessions Judge, Rajshahi found the condemned prisoner namely, Md. Sajjad Ali guilty of the charge under section 302 of the Penal Code and convicted and sentenced him thereunder to death in Sessions Case No. 609 0f 2008 arising out of M.G.R No. 690 of 2007, corresponding to Motihar P.S. Case. No. 03 dated 07.08.2007. 
  2. Being aggrieved by and dissatisfied with the impugned judgment and order dated 01.12.2008 passed by the learned Sessions Judge, Rajshahi, the condemned prisoner Md. Sajjad Ali has filed Criminal Appeal No. 8657 of 2008 and Jail Appeal No. 30 of 2009 before this court. The Death Reference No. 133 of 2008, Criminal Appeal No. 8657 of 2008 and Jail Appeal No. 30 of 2009 have been heard together and are being disposed of by this common judgment. 
  3. The prosecution case, in short, is that the informant lodged an FIR with the Motihar Police Station, Rajshahi, alleging inter alia, that on 06.08.2007 at about 07.30 P.M. the sons of the informant, namely, Sohag (P.W. 2), Sohan and Shuvon @ Shuvo (deceased) were playing on the pucca road in front of the shop of Shafiqul (P.W. 8). At about 07.30 P.M, accused Md. Sajjad Ali called the younger son of the informant, namely, Shuvon with the promise to offer him biscuit and caught hold of his hand and went away towards Parila village in the north. The accused also told Sohag and Sohan to go home. Sohag (P.W. 2) and Sohan informed Shafiqul (P.W. 8), Md. Saiful (not examined), Md. Rezaul Islam (P.W. 11) and Md. Rubel Hossain (P.W. 12) that accused Md. Sajjad Ali took away Shuvon. Thereafter, at 8.00 P.M, Sohag and Sohan came home and narrated the whole incident to their mother (informant herein) and father. The informant and her husband also narrated the incident to Idris Ali, Member (P.W. 3). Thereafter, they went out and tried to find out Shuvon. On 7.08.2007, in the morning, the informant came to know that accused Md. Sajjad Ali was talking to 5/6 unknown persons standing on the road. The informant had strong suspicion that accused Md. Sajjad Ali kidnapped her son Shuvon with 5/6 unknown persons with a view to kill him. The informant made  a thorough search but did not find out Shuvon and lodged the F.I.R.
  4. On the basis of the aforesaid F.I.R, Motihar Police Station Case No. 03 dated 07.08.2007 under sections 364A/302/201 of the Penal Code was recorded.
  5. S.I. Moktar Hossain was entrusted with the charge of investigation of the case. During investigation he visited the place of the occurrence, prepared the sketch map with separate index thereof, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure and finally submitted charge sheet No. 140 dated 13.09.2007 under sections 364A/302/201 of the Penal Code as a primafacie case was made out against the accused. Police arranged for recording the statements police also arranged recording of the witnesses, namely, Md. Idris Ali accused under section 164 of the Code of Criminal Procedure and Sohag under section 164 of the Code of Criminal Procedure.
  6. The record was transmitted to the Court of the learned Sessions Judge, Rajshahi for trial.
  7. The case was numbered as Sessions Case No. 609 of 2007.
  8. The learned Sessions Judge framed charge against the accused under sections 302/201 of the Penal Code. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried.
  9. In order to substantiate the charge against the condemned prisoner, the prosecution has examined as many as 15 witnesses in this case.
  10. After close of the recording of evidence of the prosecution witnesses, the accused was examined under section 342 of the Code of Criminal Procedure. This time also he repeated his innocence but did not adduce any D.W.        
  11. The defence case as it appears from the trend of cross-examination is that the accused is insane and he is incapable of making his defence and as such he is entitled to get the benefit of section 465 of the Code of Criminal Procedure. The further defence case is that the accused is innocent and he has falsely been implicated in this case.
  12. Considering the facts, circumstances of the case and the evidence on record, the learned Sessions Judge, Rajshahi convicted and sentenced the condemned prisoner as aforesaid.
  13. Being aggrieved by and dissatisfied with the impugned judgment and order dated 01.12.2008, the condemned prisoner has preferred Jail Appeal No. 30 of 2009 and Criminal Appeal No. 8657 of 2008.
  14. The Death Reference No. 133 of 2008, the Criminal Appeal No. 8657 of 2008 and in Jail Appeal No. 30 of 2009 have been heard together and being disposal of both common judgment.
  15. Dr. Md. Bashirullah, the learned Deputy Attorney General, Mian Md. Shamim Ahsan, the learned Assistant Attorney General and Ms. Yeadia Zaman, the learned Assistant Attorney General appearing on behalf of the State supported the death reference and opposed the criminal appeal No. 8657 of  2008 and jail appeal No. 30 of 2009. Dr. Md. Basir Ullah, the learned Deputy Attorney General first took us through the F.I.R, charge, evidence of the prosecution witnesses, the impugned judgment and order dated 01.12.2008, the confessional statement made by the condemned prisoner Md. Sajjad Ali, inquest report, post mortem report and other relevant papers available in the paper book. The learned D.A.G. then submits as under:
    1. the prosecution has been able to prove the case against the condemned prisoner, Md. Sajjad Ali beyond all reasonable doubt and as such there is no good ground to interfere with the impugned judgment and order dated 01.12.2008 passed by the learned Sessions Judge, Rajshahi by this court at this stage;
    2. the time of occurrence, place of occurrence and the manner of occurrence have been proved by the prosecution witnesses beyond doubt;
    3. P.W. 2. Sohag, P.W. 11. Riazul Islam and P.W. 12. Md. Rubel Ali saw the condemned prisoner taking away the victim and that they also saw the accused last with the victim;
    4. the condemned prisoner made an extra judicial confession and he admitted that he killed the victim Shuvon;
    5. the condemned prisoner also made a judicial confession on 08.08.2007 and his  confession is voluntary and true;
    6. on the pointing of the accused the dead body was recovered and this shows that the accused killed the deceased, Shuvon;
    7. none of the prosecution witnesses stated that the accused appellant was insane and that the Magistrate at the time of recording confessional statement did not find any sign of insanity in the behavior of the accused;
    8. the learned Sessions Judge, Rajshahi gave the definite finding that the accused was not insane;
  16. With these few words the learned D.A.G. prays for acceptance of the reference and dismissal of the Criminal Appeal and the Jail Appeal.
  17. In support of his submission, Dr. Md. Bashir Ullah, the learned Deputy Attorney General refers to the following cases:
    1. Syed Nurul Azim Babar Vs the State, reported in 14 MLR (AD) 364;
    2. the case of In Re Sankappa Shetty, reported in AIR 1941, Madras-326;
    3. the case of Dahyabhai Vs The State of Guzarat, reported in AIR 1964, (SC) 1563;
    4. the case of Mobarok Ali Vs Md. Hachi Miah, reported in 17DLR (1965)68;
    5. the case of Hazrat Ali and Abdur Rahman Vs the State, reported in 42 DLR 177.
  18. We shall discuss about the decision of the above cases later.
  19. Mr. S.M. Shahjahan, Mr. Md. Moniruzzaman and Mr. Md. Ashikur Reza Chowdhury, the learned Advocates appeared on behalf of the condemned prisoner, and they prayed for rejection of the death reference.
  20. They also prayed for allowing the Criminal Appeal No. 8657 of 2008 and the Jail Appeal NO. 30 of 2009. However, Mr. S.M. Shahjahan, the learned Advocate appearing on behalf of the condemned prisoner submits as under:
    1. there is no eye-witness in this case;
    2. the highest sentence of death has been awarded to the condemned prisoner only on the basis of confession of the accused-appellant and that the confession is not consistent with the prosecution case and that the confessional statement of the condemned prisoner is not voluntary and true;
    3. there is divergence between the nature of injuries mentioned in the inquest report and the post mortem report;
    4. in the inquest report it has been stated that there is burn injury under the arm pit of the deceased but there is no mention of such injury in the post mortem report;
    5. the accused is insane and that this matter was brought before the Magistrate on 02.09.2007 and that subsequently it was brought to the notice of the learned Sessions Judge, Rajshahi on 12.11.2007, 04.02.2008, 06.02.2008, but the learned Sessions Judge, Rajshahi did not take any step to ascertain whether the accused is insane or not;
    6. according to section 465 of the Code of Criminal Procedure when the matter of  insanity was brought to the notice of the learned Sessions Judge, Rajshahi, he was under legal obligation to ascertain whether the allegation of insanity was true or not before proceeding with the case;
    7. the impugned judgment and order dated 01.12.2008 cannot sustain in law as the condemned prisoner was insane and incapable of taking his defence.
  21. With these few words the learned Advocate for the condemned prisoner prays for rejection of the death reference and allowing the criminal appeal and the jail appeal.
He, however, refers to the following cases:
  1. the case of Wally Ahmed alias Babi Vs The State, reported in 58 DLR 433;
  2. the case of Woolmington Vs Director of Public Prosecutors, All England Law Reports, reported  in 1935 A.C. 462;
  3. the case of Nikhil Chandra Halder Vs The State, reported in 54 DLR 148;
  4. the case of Shama Tudu Vs The State, reported in 1987 Crl. Law J. 618;
  5. the case of The State Vs Khasru alias Syed Mostafa Hossain and another, reported in 43DLR (AD) 182;
  6. the case of Ismail Sarker alias Sudam member and others, reported in 33 DLR 320.
  7. the case of Shamsuddin Sarker Vs The State, reported in 11 DLR (SC) 365;
  8. the case of Alkas Mia and others Vs The State, reported in 25 DLR 398 (114G of the Evidence Act);
  9. the case of Liakat Ali alias Liakat Ali (MD) Vs The state , reported in 42 DLR(AD) 30 (114G of the Evidence Act)
  10. the case of Kawsarun Nessa and another Vs The State, reported in 15 BLD 21;
  11.  the case of Mizanul Islam alias Dablu Vs The State, reported in 41 DLR (AD) 157;
  12. the case of Abul Kashem and others Vs The State, reported in 56 DLR 132.
  1. We shall take account of those decisions later in the body of the judgment.
  2. Mr. Baharuddin Al Raji, the learned Advocate appeared on behalf of the condemned prisoner in Jail Appeal No. 30 of 2009. He, however, adopted the submissions of the learned Advocate Mr. S. M. Shahjahan and adds as under:
    1. when the allegation of insanity was brought before the learned Sessions Judge, Rajshahi, he should have arranged examination of the condemned prisoner by a competent doctor to ascertain whether the accused was really insane or not;
    2. the learned Sessions Judge abruptly came to the conclusion by his unprofessional knowledge that the condemned prisoner was not insane;
    3. the confessional statement of the accused appellant runs counter to the prosecution case and that the confession it is not consistent with the prosecution case;
    4. the accused in his confession has brought a new case about the parentage of the victim;
    5. the very inconsistent statements of the condemned prisoner testify that he is insane;
  3. With these few words the learned Advocate appearing for the condemned prisoner in jail appeal prays for rejection of the death reference and prays for allowing the jail appeal.
  4. In order to prove the charge against the accused, the prosecution has examined as many as 15 witnesses in this case.
  5. P.W. 1 is Sadhina Begum. She is the informant and mother of the deceased. In her examination in chief she stated that on 06.08.2007 at about 7.30 A.M, her 3(three) sons, namely, 1. Sohag (12 years), 2. Sohan (8 years) and 3. Shuvon (7 years) (deceased) were playing on the pucca road in front of the shop of Shafiqul Islam (P.W. 8). At that time her neighbour Md. Sajjad Ali (accused herein) called Shuvon on the promise that he would give biscuit to Shuvon and took him away and the other two sons of the informant came home and on query they informed to her (informant) that accused Md. Sajjad Ali took away Shuvon towards north on the promise of giving biscuit to Shuvon. She (P.W. 1) then started searching Shuvon, but did not find him out. Thereafter, she informed the matter to Md. Idris Ali, member (P.W. 3). They searched whole night, but could not find him out. On the following day she lodged F.I.R. with the Motihar Police Station.
  6. P.W. 1 further stated that Police arrested accused Md. Sajjad Ali and the accused made an extra judicial confession and in his extra judicial confession, he stated that he killed Shuvon by throttling and he also burnt some parts of Shuvon. P.W. 1 also stated the accused concealed the dead body of the deceased under the water of the Moshureer beel (hereinafter called bell) and hided the dead body of the deceased with the banana leaves and date leaves. P.W. 1 then stated that Police went to the beel with accused Md. Sajjad Ali and on the showing of the accused, police recovered the dead body of the deceased from the beel. She proved the pant of the deceased as material Ext. 1. She proved the F.I.R. as Ext. 1 and her signature therein as Ext. 1/1.
  7. In cross-examination she stated that all 3(three) sons were her sons. She also stated that there were 6 houses near the place of occurrence where the boys were playing and the owner of those houses are Monser, Moslem, Ajar, Reazul (P.W. 11) and Guda. She also stated that her two sons came home at 7.00 P.M. The father of the informant lodged a G.D. Entry. Police came and they all tried to find out the deceased. Moshureer beel is a big beel and the people catch fish there during rainy season. She did not see the accused Md. Sajjad Ali taking away her son. The houses of the informant and that of accused are standing side by side. Accused had no enmity with any of the members of her family. Police arrested the accused before F.I.R. was lodged. She denied the suggestion that the accused was insane. She also denied the suggestion that the accused was loitering on the road aimlessly as because he was insane. She also denied the suggestion that her son went to the beel for catching fish and drowned there. She denied the suggestion that being biased by the enemy party of the accused, she lodged the FIR.
  8. P.W. 2 is Sohag. He is aged about 12 years and he is the brother of deceased Shuvon and son of the informant. He stated that 9 months ago he and his brother Shuvon (did not mention the name of 3 brothers) were playing in the north side of the shop of Shafiqul Islam. At the dusk, accused came there and took away Shuvon on the promise of giving him biscuit. Accused told him (this P.W) to go home. Accused also told him that after purchasing biscuit, he would bring Shuvon to his house. He came home and stated to his mother that accused Md. Sajjad Ali took Shuvon away on the promise of giving biscuit to Shuvon. Shuvon did not come back alive. The dead body of the deceased was recovered from moshureer beel after two days. He gave statement before the Daroga and the Magistrate.
  9. In cross examination he stated that Shafiqul (P.W. 8), Reazul (P.W. 11), Saiful and Rubel were sitting on the “matcha” of (raised sitting place) the shop. His father, mother and other relations apprehended the accused and handed him over to police. He denied the suggestion that Shuvon went near to the beel when he (this P.W.) was playing. He also denied the suggestion that Shuvon was suffering from epilepsy. He also denied the suggestion that the accused did not take away Shuvon on the promise of giving him biscuit. He also denied the suggestion that the behaviour of the accused indicates that he is insane.
  10. P.W. 3 is Md. Idris Ali. He is the member of the Union Parishad. He stated that on 06.08.2007 at about 8.00/8.30 P.M, the informant came to his house with her two sons. The informant stated to him that accused Md. Sajjad Ali took away her son Shuvon on the promise of giving him biscuit and thereafter he (Shuvon) was not traced out. They tried to find him out but failed. Some people went to the house of the accused and asked him where Shuvon had gone! He (this P.W) arranged miking for Shuvon. On the next day, people apprehended the accused and confined him. At about 10.00 A.M, they handed over the accused to police. At about 2.00/2.30 A.M, police came to his village with the accused and at that time the accused gave extra judicial confession that he killed Shuvon. On the following day, the accused along with one Motin, son of Nur Mohammad (not examined) and driver Babu (P.W. 7) brought out the dead body of the deceased from under the water. Police held inquest on the dead body of the deceased and he (this P.W. 3) put his signature in the inquest report. He proved the inquest report as Ext. 2 and his signature therein as Ext. 2/1. He identified the accused on the dock.
  11. In cross examination, he stated that the distance between the house of the informant and that of the accused is 100/125 feet. The informant came to him with his two sons. At that time 12/13 persons were present there. He did not go to the Police Station after hearing the news. He started miking on the following morning. He informed the matter to the Chairman, Moniruddin. He handed over the accused to the police. On 07.08.2007 at about 9.00 A.M, they confined the accused Md. Sajjad Ali and at that time one Nazrul, Badal, Rohen, Aziz, Abdur Razzak, Abdul Majid were present there. He denied the suggestion that the accused was insane. The dead body of the deceased was recovered from under one feet deep water. Police also arrested Ruhul and Reha and Reha is the brother of the informant. He denied the suggestion that he did not state to the police or to the Magistrate that the informant came to his house at 8.00/8.30 P.M. with her two sons or the accused took away Shuvon with a promise to give him (Shuvon) biscuit or he arranged miking or they confined the accused Sajjad or they handed over the accused to the police or the accused made extra-judicial confession that he killed Shuvon. He also denied the suggestion that the accused is insane. He also denied the suggestion that the dead body was not recovered on the showing the accused, Sajjad. He denied the suggestion that Shuvon went to catch fish in the beel and drowned there.
  12. P.W. 4 is Yunus Ali. He is the maternal grandfather of the deceased. He stated that on 06.08.2007 at 8.15 P.M. his daughter, that is, the informant stated to him that her son Shuvon was missing. On Wednesday at 3.45 P.M, the dead body of the deceased Shuvon was recovered from the Moshureer beel. One Nur Mohammad and Siraj Munshi are the owner of Moshureer beel. He identified the accused on the dock.
  13. In cross examination he stated that the distance between his house and the house of his daughter is 200 cubits. On the date of the occurrence, Shuvon went to his house in the noon and took lunch there and left his house at 2.00/2.30 P.M. The distance between the house of the informant and the place from where the dead body of the deceased was recovered is 500 cubits. It was rainy season and there was sufficient water in the beel. He admitted that police arrested his two sons. Police arrested the accused from his house. On the following day of the occurrence, police arrested the accused at 10.00 A.M. He also stated that at the time of recovery of the dead body more or less 30 persons were present there. The inquest held at the place from where the dead body was recovered.  He denied the suggestion that the dead body was not recovered on the showing of the accused, Md. Sajjad Ali. He denied the suggestion that the deceased Shuvon drowned when he went for catching fish. He also denied the suggestion that the accused was insane.
  14. P.W. 5 is Nur Mohammad. He stated that on 06.08.2007 at about 8.15 P.M, he heard that the accused took away Shuvon on the promise of giving him biscuit and thereafter Shuvon was not traced out. On the following day of the occurrence, the villagers apprehended the accused at 9.00 A.M. and he was taken to police station at about 4.00 A.M. On the following day of the occurrence police called him (this P.W.) and they went to the Moshureer beel along with police and accused and on the showing of the accused, the dead body of the deceased was recovered from Moshureer beel. He (P.W. 5) was present there and police held inquest in his presence. He proved his signature in the inquest report as Ext. 2/2.
  15. In cross examination, he stated that the accused, informant and himself are the inhabitants of the same village. When people apprehended the accused, he was in the Court and he remained in the court premises from 10.00 A.M. to 3.00 P.M. He denied the suggestion that he did not state to the police that the villagers apprehended the accused. He denied the suggestion that he did not state to police that the people apprehended the accused. He denied the suggestion that the accused was insane. He also denied the suggestion that Shuvon drowned when he went for catching fish. He also denied the suggestion that he deposed falsely.
  16. P.W. 6 is Md. Jalil. He has been tendered. The accused declined to cross examine him.
  17. P.W. 7 is Md. Babu. He has also been tendered. The accused declined to cross examine him.
  18. P.W. 8 is Md. Shafiqul. He has been tendered also. The defence declined to cross examine him.
  19. P.W. 9 is Md. Abdur Razzak. He stated that the deceased Shuvon was the son of her daughter. The occurrence took place one year ago and on the following day of the occurrence at 2.00 A.M. the dead body of Shuvon was recovered from the Moshureer bill. At the time of recovery, he was present along with other people. Police held inquest upon the dead body of the deceased in his presence. He put his signature in the inquest report. He proved the inquest report as Ext. 2 and his signature therein as Ext. 2/3.  Police also seized wearing apparels of the deceased which were marked as material Ext. 1. He proved the seizure list as Ext. 4 and his signature therein as Ext. 4/1.
  20. In cross examination he stated that 40/50 persons were present when the dead body was recovered. Among them Idris Ali Member (P. W. 3), Nur Mohammad (P.W. 5) and Hannan (not examined) were present there.  Police arrested the accused from his home at 9.00 A.M. He denied the suggestion that the accused was insane. He also denied the suggestion that the dead body was not recovered on the showing of the accused.
  21. P.W. 10 is Dr. Md. Emdadur Rahman. He stated that at the time of occurrence he was serving at Rajshahi Medical College Hospital in forensic department. On 08.08.2007, Constable No.1438, Azit Kumar brought the dead body of the deceased before the medical board consists of himself and Dr. Akbar Ali. They held the post mortem of the deceased and found the following injuries on the person of the deceased:
    1. one deep seated bruise over the right lateral aspect of neck 1" in diameter;
    2. two ecchymises over the left lateral aspect of the neck ¾" in diameter each;
  22. On detailed dissection sub-cutaneous tissues including muscles and blood vessels of neck found torned, bruised and lacerated, larynxes and trachea and thyoid bone were fractured.
  23. According to the opinion of the doctor the death was due to asphyxia following manual strangulation (throttling). Death was homicidal in nature.
  24. He (P.W. 10) proved the post mortem report as Ext. 5 and his signature therein as Ext. 5/1.
  25. In cross examination, he stated that on 08.08.2007 at about 11.25, he received the dead body. He also denied the suggestion that he deposed falsely.
  26. P.W. 11 is Reazul Islam. He stated that approximately one year ago he, Rubel (P. W. 12), Saiful (not examined), Ziarul (not examined) were sitting on the "matcha" of the shop of Shafiqul (P.W. 8). At that time he saw that accused Md. Sajjad Ali was taking away the victim. Thereafter, the dead body of the deceased Shuvon was recovered.
  27. In cross examination, he stated that at the time of talking away the victim, Shafiqul was inside the shop. He cannot remember the exact time but it happened just after the magrib prayer.  He did not disclose the matter to the father and mother of the deceased. He stated that the distance between his house and the house of the deceased was 200/300 feet. He denied the suggestion that he did not see the accused taking away the victim. He also denied the suggestion that he deposed falsely.
  28. P.W. 12 is Md. Rubel Ali. He stated that one year ago he, Riazul Islam (P.W. 11), Shafiqul (P.W. 8), Ziarul (not examined) were sitting on the "matcha" of the shop of Shafiqul. At that time he saw that the accused was taking away the deceased, Shuvon. Later on the dead body of the deceased Shuvon was recovered from the beel on the showing of the accused.
  29. In cross-examination, he stated that he was sitting there for about half an hour. Thereafter, he went home. He did not see the recovery of the dead body. He heard that the dead body was recovered from the beel. He denied the suggestion that he did not see the accused taking away the victim. He also denied the suggestion that the accused was insane.
  30. P.W. 13 is Janendra Nath Sarkar. He is the Magistrate who recorded the statement of the witnesses, namely, Idris Ali (P.W. 3) and Sohag (P.W. 2). He proved the statement of the witness No. 2 as Ext. 6 and his signature therein as Ext. 6/1. In cross-examination he stated that the Investigating Officer brought two witnesses before him.
  31. P.W. 14 is Syed Rabiul Alam. He is also the Magistrate. In his examination in chief he stated that on 08.08.2007 he was posted in Rajshahi Collectorate. He recorded the statement of the accused under section 164 of the Code of Criminal Procedure. He complied with all the provisions of law at the time of recording the statement of the accused under section 164 of the Code of Criminal Procedure. He proved the statement as Ext. 7 and his four signatures therein as Ext. 7/1 series. Accused voluntarily confessed is guilt. The statement was read over to the accused and he put his signature therein.
  32. In cross-examination, he stated that the accused was brought before him on 08.08.2007 at 10 A.M. Sub-Inspector Mokter Hossain brought the accused before him. The accused did not complain of any police torture. He also stated that he did not find any sign of torture on the body of the accused. He did not caution the accused that he would not be taken to police custody if he would confess or not confess. He gave 3 hours time for reflection. He denied the suggestion that the accused was insane. He also denied the suggestion that he did not comply with the provisions of law at the time of recording the statement. He also denied the suggestion that the statement of the accused was not voluntary and true.
  33. P.W. 15 is Md. Mokter Hossain. He is the Investigating Officer. He stated that on 07.08.2007, he was serving as Sub-Inspector of Police in Motihar Police Station. On that day Officer-in-Charge of Motihar Police Station recorded the case and gave the charge of investigation to him. The local people apprehended the accused, informed the police and police arrested the accused under section 54 of the Code of Criminal Procedure. He started investigation on 07.08.2007. The accused gave extra-judicial confession before him and admitted that he killed Shuvon by throttling and concealed the dead body under the water of Moshureer beel. Thereafter, he came to the place of occurrence with the accused, prepared the sketch map with separate index thereof. He proved the sketch map as Ext. 8 and the index as Ext. 9 and his signature therein as Ext. 8/1 and 9/1. Thereafter, at 3.40 A.M. they along with member Idris Ali (P.W. 3) went to Moshureer beel and recovered the dead body of the deceased from under the water of Moshureer beel. The dead body was covered with water hyacinth. Thereafter, they held the inquest of the dead body at 5.35 A.M. He proved the inquest report as Ext. 2 and his signature therein as Ext. 2/4. Member of the Union Perished Idris Ali (P.W. 3) and other people put their signatures in the inquest report. He brought the accused before the Magistrate for recording his statement under section 164 of the Code of Criminal Procedure. He sent the dead body to the morgue by constable No. 1438, Azit Kumar for post mortem examination. He proved the chalan as Ext. 10 and his signature therein as Ext. 10/1. He examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure. He seized the wearing half-pant of the victim and proved it as material Ext. 1. Thereafter, he submitted charge sheet against the accused as a prima-facie case was made out against the accused.
  34. In cross examination he stated that Younus Ali (P.W. 4) lodged a G.D. Entry on 07.08.2007 at 23.15 A.M. with the Motihar Police Station, but he did not procure the copy of the G.D. Entry. The F.I.R. was lodged on 07.08.2007 at 20.15 hours. He was given the charge of investigation. The local people apprehended the accused on 07.08.2007 at 12.00 noon and informed the matter to the Police Station. Thereafter, police arrested the accused at 3.00 P.M. He was present when the accused Md. Sajjad Ali was taken under police custody. He also arrested two other persons under section 54 of the Code of Criminal Procedure. He denied the suggestion that at the time of arrest the accused behaved like an insane man. He did not seize water hyacinth. The dead body was recovered from the beel and there was knee deep water. It has not been mentioned in the inquest report that the dead body was recovered on the showing of the accused Md. Sajjad Ali. He also stated that Idris Ali (P.W. 3) did not state to him that police arrested the accused on suspicion. The accused was produced before the court on 08.08.2007 at 12.35 hours. He denied the suggestion that the dead body was not recovered on the showing of accused Sajjad Ali. He also denied the suggestion that the accused was insane. He also denied the suggestion that they tortured the accused and extracted the confession and that his confession was not voluntary and true.
  35. These are all about the evidence adduced by the prosecution. Among the 15 witnesses,
  36. P.W. 1 is the informant.
  37. P.W. 2 is the brother of the deceased and son of the informant and he is aged about 12 years.
  38. P.W. 3 is a private witness and he is a member of the Union Perished.
  39. P.W. 4 is the maternal grandfather of the deceased and he is father of P.W. 1, (informant).
  40. P.W. 5 is the neighbour who heard about the occurrence.
  41. P.Ws. 6, 7 and 8 have been tendered.
  42. P.W. 9 is the private witness and he is the seizure list witness and also witness to the inquest report.
  43. P.W. 10 is the doctor who held post mortem of the dead body.
  44. P.W. 11 is the private witness who claims to have seen the accused taking away the victim.
  45. P.W. 12 is also a private witness who claims to have seen taking away the victim by the accused;
  46. P.W. 13 is a Magistrate, who recorded the statement of the witnesses.
  47. P.W. 14 is also a Magistrate who recorded the statement of the accused under section 164 of the Code of Criminal Procedure.
  48. P.W. 15 is the investigating officer.
  49. Now, let us turn to the confession of the accused. We have earlier stated that the accused made statement under section 164 of the Code of Criminal Procedure.
  50. For proper appreciation, let us quote the confessional statement given by the accused Md. Sajjad Ali which runs as under:
"আমি সম্পুর্ণ সজ্ঞানে, কারুর দ্বারা প্রভাবিত না হয়ে এইজবানবন্দি দিচ্ছি। আমি আগে গাড়ী চালাতাম। ঢাকার নাভানা হোটেলে ময়মনসিংহের এক মেয়ের সাথে আমার পরিচয় হয়- সে মেয়ে ছিল পতিতা । তার সাথে আমার দুইদিন মেলামেশা হয়েছে। প্রায় ছয় বছর আগে। আমি তাকে বলেছিলাম, আমার বাড়ী রাজশাহী, মতিহার থানা। কিছুদিন আগে আমাদের গ্রামে আমি ঐ মেয়েকে দেখি। ঐ মেয়ের নাম জানি। আমি ভয়ে কথা বলিনি। মেয়েটি একা ছিল। ফেস দেখে চিনতে পারি-ভয়ে কিছু জিজ্ঞাসা করতে পারিনি- তবে ঐ মেয়ে আমাকে দেখে ফেলে।
এর পাঁচ মাস আগে আমার মামাতো বোন স্বাধীনা আমাকে বলে যে, শোভনকে আমাকে নিয়ে যেতে বলে- বলে, তুমি একে মানুষ কর। স্বাধীনা শোভনকে চার বছর ধরে মানুষ করছিল। ঐ ছেলে স্বাধীনার না নাভানা হোটেলের ঐ মেয়ে স্বাধীনার কাছে ছেলেটিকে মানুষ করতে দিয়ে যায়। আমি স্বাধীনাকে জিজ্ঞাসা করেছিলাম, তুমি এই ছেলেকে কোথায় পেলে? স্বাধীনা বলেছিল, এই ছেলেতো তোমারই, একটা মেয়ে আমার কাছে দিয়ে গেছে, ঐ মেয়ে আমার কাছে বলে গেছে তুমি এই ছেলের বাপ।
তখন থেকেই আমি ঐ ছেলে, নাম শোভনকে মেনে নিতে পারিনি।
দেড় মাস আগে আমি নাভানা হোটেলের ঐ মেয়েকে আমাদের গ্রামেদেখি। তখন থেকে আমার সন্দেহ হতে পারে ঐ ছেলে আমার। ঐ ছেলের চেহারা একদম আমার মত। আমি ঐ ছেলেকে লবষবষ ঝবণ্ঠ ড়ংশ¿গ্ধ খষলধ ন্বভখু অবভল রবযস্বল, ঢ়লবঝ ও ষজলস্লখ মেনে নেবেনা- আমাকে চেন্ডারে (আসামী এভাবেই বলে) দেবে। আমার বউ সানজিদা আমাকে একদিন বলে, তোমার নাকি একটা অবৈধ সন্তান আছে? ছি! তোমাকে আমি ঘেন্না করি। তারপর আমি এই কাজে বাধ্য হয়।
৬/৮/০৭ তারিখ সন্ধ্যা সাড়ে ছয়টার দিকে আমি একটা বিয়ে থেকেবাড়ীর দিকে যাচ্ছিলাম। স্বাধীনার বাড়ীর সামনে আমি শোভনকে দেখি- শোভন আমার সাথে সাথে আসে।  ও ছিল পাগলা, পাগলা, মানুষকে ঢেলা মারে। ওকে দেখে আমার মনে হলো, ও বেচে থাকলে আমার ক্ষতি হবে- সমাজে আমার কলঙ্ক হবে। আমি শেষ হয়ে যাবো।
শোভনকে নিয়ে আমি মশুরীর চরায় যাই। তারপর ওকে আমি পানিতে ঠেসে ধরি ও ছটফট করেছিল। কোন কথা বলেনি। কিছুক্ষণ পরে মারা যায়। লাশটা পানিতে ভেসে যায়। শোভনের পরনে একটা হাফপ্যান্ট ছিল অ্যাশ কালারের। গায়ে কোন জামা ছিল না। লাশ ওখানেই ভেসে ছিল। যে জমিতে আমি শোভনকে মারি, সেই জমি সেরাজ মুনন্সীর। জায়গাটা আমাদের গ্রাম রনহারে। যখন শোভনকে মারি, তখন সময় সাড়ে সাতটা। মারার সময় আমার সাথে কেউ ছিল না।
মারার পর লাশ ঐখানে ফেলে আমি বাড়ী চলে আসি। ঘন্টা দুয়েক পরে স্বাধীনা আমার কাছে এসে বলে, শোভনকে পাচ্ছি না। আমি তার কাছে কিছু স্বীকার হইনি। উনি আমার নামে  সন্দেহমূলক থানায় জিডি করে। তারপর পুলিশ তদন্ত করে আমাকে ধরেণ আমি স্বেচ্ছায় সব স্বীকার করলাম। পুলিশের কাছেও তাই বলেছি। শোভন আমার ছেলে, আমার আরেকটা মেয়ে আছে। আমি ভুল করেছি, আমাকে স্যার ক্ষমা করেন। এরকম ভুল আমি আর কখনও করব না।" 
  1. This is the confession of accused Sajjad Hossain. We find that the prosecution case and the case made out by the accused in his confession are not the same. P.W. 1 is the informant and she stated that she was the mother of the victim, Shuvon. Accused stated in his confession that one prostitute who used to work in Navana Hotel, Dhaka, was the mother of the victim. The accused also stated in his confession that he saw the lady who is the mother of the victim in his village. But she has not been examined by the prosecution. In fact, the confession of the accused runs counter to the prosecution case. The case made out by the accused in his confession and the case of the prosecution are diagonally opposite to each other. P.W. 1 stated that she was the mother of the deceased whereas the accused stated that one prostitute lady who used to work in Navana Hotel in Dhaka was the mother of the victim. Moreover, the accused in his confession stated that he was the father of the victim. But P.W. 1 is not the wife of the accused. Again, the husband of P.W. 1 is still alive, but he has not been examined by the prosecution to dispel the clouds from the mind of the people as to the parentage of the victim. Therefore, we find that the prosecution case is wrapped with full of mist. If we believe the confession of the accused, we have to disbelieve the prosecution case. And if we believe the prosecution case, we have to disbelieve the confession of the accused. If the confession of the accused runs counter to the prosecution case, the conviction cannot sustain in law. In such circumstances the accused-appellant is entitled to get the benefit of the decision taken in the case of Mizazul Islam Dablu Vs. The State 41 DLR (AD) 157.
  2. In the case of Mizazul Islam alias Dablu Vs The State, reported in 41 DLR (AD) 157, it has been held that when the confession runs counter to the prosecution case, either prosecution case is false or confession is false and both cannot go together. At the end, the Appellate Division acquitted the accused.
  3. P.W. 1 is the informant and she claims to be the mother of the victim. She stated that she had 3 sons, namely, Sohag (12 years), Sohan (8 years) and Shuvon (7 years) (victim). But the accused in his confessional statement stated in no uncertain terms that one prostitute who used to serve in Navana Hotel was the mother of the victim. This lady also visited the village where the accused was living, but she has not been examined by the prosecution to ascertain the motherhood/fatherhood of the child. In fact none of the prosecution witnesses stated that the accused is the father and the prostitute girl is the mother of the victim.
  4. So, the parentage of the child remains totally unclear. If P.W. 1 is not the mother of the victim, the prosecution case falls through. Unfortunately, the husband of the informant has not come to support his wife, P.W. 1. This behavior of the husband of P.W. 1 creates doubts about the parentage of the victim and also the total prosecution case.
  5. Now, the question is that P.W. 2, 11, 12, have stated that they saw the accused to take away the victim, Shovon. We find that all these 3 P.Ws. stated that the accused took away the victim from in front of the shop of Shafiqul. This Shafiqul has been examined by the prosecution as P.W. 8. But he has been tendered by the prosecution. Rezaul (P.W. 11) stated that he, Rubel (P.W. 12), Saiful (P.W. 8) and Ziarul (not examined) were sitting on the "macha" (raised sitting place of a shop mostly in village area) of the shop of Shafiqul and at that time they saw accused Sajjad Ali taking away the victim. But this P.W. 11 did not state to the father and mother of the victim that the accused took away their son. Rubel has been examined by the prosecution as P.W. 12. P.W. 12 stated that Rezaul (P.W. 11), Shafiqul (P.W. 8), Ziarul (not examined) were sitting on the "macha" of the shop and at that time they saw the accused taking away Shovon. But he did not see recovery of the dead body of Shuvon. He stated that he heard that the dead body of Shuvon was recovered from the beel. But he did not even mention from whom he heard this.
  6. The learned D.A.G. contends that as the accused was seen last with the victim and as the victim was found dead after he was seen last with the accused, none else but the accused is responsible for the death of the victim. In support of his contention, the learned DAG refers to the case of Anisur Rahman and others Vs The State, reported in 1986 BLD (AD) 79.
  7. In the case referred to above, the Appellate Division has held as under:
“...............there is no reason to disbelieve the evidence of the son and wife of the deceased who are undoubtedly the most natural and material witnesses as to the calling away of the deceased by the appellants from the house of the deceased, after which the deceased was not found till his dead body was recovered in the sugarcane field on the next day. In the absence of any other reasonable explanation as to the safe departure of the deceased from the company of the appellants after they had called him away from his house at night, no conclusion other than the guilt of the appellants can be drawn”. 
  1. P.W. 2, 11 and 12 allege that they saw the accused taking away the victim. But P.W. 2 is a 12 year old boy. A child witness cannot be relied upon without prudent corroboration (Ref: Rashid Vs. The State 10 DLR 532= PLD 1959-181; Gadu Mia Vs. The State 44 DLR 246). Such corroboration is absent in the present case. P.W. 11 also stated that at the time of taking away the victim, Shafiqul was present in the shop. But Shafiqul has been tendered by the prosecution. P.W. 12 again stated that he heard that the dead body of the deceased was recovered from the beel. He is also a hearsay witness and he did not also state from whom he heard about the recovery of the dead body from the beel.
  2. In the above mentioned referred case (Anisur Rahman and other Vs. The State, 1986 BLD (AD) 79 son and wife were the witnesses as to the calling away of the deceased by the accused. But in the instant case P.W. Nos. 11 and 12 are 3rd persons and they are not natural witnesses, they may be termed as a chance witnesses. Though P.W. 2 is the son of the informant, he is a minor boy. Therefore, the principle enuntiated in the case referred to above is not applicable in facts and circumstances of the case is hand.
  3. The learned Advocate appearing for the accused contends that in the present case there are two circumstances, one is calling away the victim from in front of the shop of Shafiqul and the second circumstance is taking the victim to Moshureer beel from in front of the shop of Shafiqul. P.W. Nos. 2, 11 and 12 allege that they saw the accused taking away the victim from in front of the shop of Shafiqul Islam. We have already discussed the value of the evidence of P.W. Nos. 2, 11 and 12. However, we find that there is absolutely no evidence at all to prove that accused took the victim to Moshureer beel from in front of the shop of Shafiqul. Therefore, the second circumstance, that is, taking away the victim to Moshureer beel from in front of the shop of Shafiqul has not been proved at all. As such, the accused cannot be held responsible for the murder of the victim. In support of his contention, the learned Advocate for the accused refers to the case of The State Vs Khasru alias Syed Mostafa Hossain and another, reported in 43 DLR (AD) 182. In the case referred to above, it has been held as under:
“the fact of calling away of the victim Khairul by the accused Khasru was satisfactorily established as the first circumstance in support of the prosecution and witnesses have also satisfactorily proved that the victim travelled with the two accused from their village Noapara to a distant place called Takerhat by bus and got down there at 4.00/4.30 P.M. on 04.01.1979. This is the second circumstance proved against the accused. From this point onward up to the time of recovery of the body of Khairul at about 3.00/3.30 P.M. on the following day the accused were alleged to have been seen along with the deceased, the third circumstance in the absence of ocular evidence of murder by, P.Ws. 11 and 12, the High Court Division rejected their evidence due to apparent contradiction between their evidence and the statement made by them before the police and also for the reason that their identification of the accused in the T.I. Parade had lost all significance in view of the fact that they had chance to see the accused. There has been no violation of any norm or procedure in assessing the evidence of the said two witnesses for which the finding of fact made by the High Court Division could be disturbed. The position therefore comes this that the third circumstance, that of, seen the three boys together near the bank of the river where the victim’s body was found was not satisfactorily established. The circumstances of the case can never be said to be conclusive as to the guilt of accused of Khasru and his brother Nowab. The High Court Division has correctly applied the rule as to circumstantial evidence in the facts of the present case.”
  1. The facts and circumstances of the case referred to above and the facts and circumstances of the case in hand are identical. Therefore, the principle expounded in the case referred to above fully applies in the facts and circumstances of the case in hand.
  2. In the case of Ismail Sarker @ Sudan Member and other vs. the State reported in 33 DLR 320, it has been held as under:
“if the deceased was last seen in the company of the accused appellants at about 10 P.M. on the night of occurrence and subsequently his dead body was seen in the river Titas at about noon on next day, from such facts alone it cannot be held that the accused appellant in any way had any plan to murder deceased Mohar Ali or in any manner abetted the commission of the murder of deceased Mohar Ali.”
  1. Mr. S.M. Shahjahan, the learned advocate lastly refers to the case of Bablu @ Babu (Md) Vs the State 60 DLR, 583 and submits that it is well settled that “last seen together is a weak type of circumstantial evidence and conviction cannot be given on the basis of “last seen together” theory alone.
In the case referred to above it has been held as under:
“……….. it is well settled law that last  seen together is a weak type of circumstantial evidence on which to have a conviction, a link between the accused and the murder has to be proved.”
  1. The decisions cited above fully applies in the case in hand as the facts and circumstances of the case in hand and the facts and circumstances of the case referred to above are similar and identical.
  2. Now, let us address the last important point raised by the learned Lawyer for the accused-appellant. He raised the point that the accused was insane and the learned Sessions Judge did not give any decision on the question of insanity before proceeding with the case and the learned Sessions Judge most arbitrarily examined as many as 13 witnesses before giving any dicision on the point of insanity raised by the accused.
  3. The learned advocate appearing on behalf of the accused appellant also contends that from the very beginning of the case, the accused appellant has been claiming that he is insane. At the earliest, that is, on 02.09.2007, the accused first brought to the notice of the Magistrate that he was insane. The learned Magistrate considered the application and directed the jail authority to provide with necessary treatment to the accused. Thereafter, the case record was sent to the learned Sessions Judge for trial as the case was triable by the Sessions Judge. On 12.11.2007, the accused filed an application before the learned Sessions Judge intimating him that the accused was insane and if the charge was framed against him he would be prejudiced as he was not capable of making his defence because of insanity. On 12.11.2007, the learned Sessions Judge did not give any decision on the allegation of insanity of the accused. However, the learned Sessions Judge fixed 25.11.2007 for hearing of framing of charge. The learned Sessions Judge, however, framed charge against the accused on 09.01.2008 under section 302/201 of the Penal Code. On 04.02.2008, the accused again filed an application before the learned Sessions Judge stating that the accused was insane and also prayed for sending the accused to Pabna Mental Hospital for treatment. On this application, the learned Sessions Judge did not pass any order and kept the application with the record. Again on 08.10.2008, the accused filed another application under section 465 of the Code of Criminal Procedure and prayed for providing the accused with necessary treatment. On this application no order was passed on 08.10.2008 the ground that the copy of the application was not served upon the learned Public Prosecutor. However, on 6.11.2008, the learned Sessions Judge passed order on the application filed by the accused under section 465 of the Code of Criminal Procedure. The learned Sessions Judge passed the order as under:              
“There is nothing in the record to show that the accused Md. Sajjad Ali is of unsound mind. He was arrested immediately after the lodging of the case on 07.08.2007 and thereafter he was produced before the Magistrate. His confessional statement was recorded on 08.08.2007 by the learned Metropolitan Magistrate, Rajshahi. But the learned Magistrate did not notice any sign of unsoundness of mind of accused Md. Sajjad Ali.
This court received the case record on 24.10.2007 and by this time all the witnesses (numbering 13) except the Investigating Officer have been examined. I have not marked any sign of unsoundness of mind of the accused. He has taken his defence and he has cross examined all the witnesses. Therefore, the allegation that accused Md. Sajjad Ali is of unsound mind and consequently incapable of making his defence appears to be totally false and baseless. Therefore, the petition is rejected”.
  1. From the record we find that on 12.11.2007 the accused first brought to the notice of the learned Sessions Judge that the accused was insane. The learned Sessions Judge examined the prosecution witness first on 25.03.2008, this means, the learned Sessions Judge without giving any decision on this point of  insanity proceeded with the case and examined as many as 13 witnesses. On 06.11.2008, the learned Sessions Judge rejected the application filed under section 465 of the Code of Criminal Procedure. It is, therefore, clear that the learned Sessions Judge gave decision on the point of insanity long after the matter was brought to his notice and in the meantime the learned Sessions Judge examined as many as 13 prosecution witnesses.
  2. Again, we find that the learned Sessions Judge did not find that the accused was insane and that he did not accept the contention of the learned Lawyer of the accused that accused was incapable of making his defence. In fact, before he arrived at such decision, he should have taken specialist doctor’s opinion whether the accused was insane or not. It is said that the court is always expert of all experts but not always. In certain cases court should look for the expert opinion before giving its decision. Since the defence has been insisting right from the very beginning of the case that the accused is insane, the learned Sessions Judge should have obtained doctor’s opinion before forming his definite opinion as to the insanity of the accused. In such situation, the learned Sessions Judge should not have arrived at a decision on the basis of his unprofessional knowledge.
  3. Mr. S.M. Shahjahan, the learned advocate appearing on behalf of the condemned prisoner contends that when an accused is brought before the court with the allegation that the accused is insane, the first  duty of the court is to ascertain whether the accused is really insane or not. In support of his contention the learned Advocate refers to the case of Shama Tudu Vs The State, reported in 1987 Crl. L. J. 618. In the case referred to above, it has been held that the accused killed his wife and only son, but the evidence and the conduct of accused show that accused was unable to understand the nature of his act due to insanity at crucial point of time, and the accused is entitled to benefit of S. 84. Accused is entitled acquittal.
  4. In the case of Wally Ahmed alias Babi Vs The State, reported in 58 DLR 433, a Division Bench of this Court has held as under:
“.............But the learned Judge of the trial court without following the procedure for trial in case of a person being lunatic before Court of Sessions as laid down in section 465 of the Code of Criminal Procedure continued the proceedings. The provisions of the section are mandatory and failure of the court to do so rendered the entire subsequent proceedings illegal and is of no legal effect which would vitiate the conviction and sentence. With this regard reliance can be placed in the case of Khan Baig Vs. State reported in PLD 1984 Lahore 434”
  1. From the decisions cited above, we are constrained to hold that the learned Sessions Judge should have obtained specialist doctor’s opinion before rejecting the application on the basis of his unprofessional knowledge. On the point of insanity, we also hold the view that since the accused brought to the notice of the learned Session Judge about the insanity long back on 12.11.2007, the learned Sessions Judge should have given his decision on the point of insanity before examination of witnesses and he should not have examined on many as 13 witnesses before giving his decision as the point of insanity.
  2. Dr. Md. Bashir Ullah, the learned Deputy Attorney General, on the other hand, refers to the case of Dahyabhai Chhaganbhai Thakkar, appellant Vs The State of Gujarat, reported in AIR 1964(SC) 1563 (V 51 C 210) at page 1563. In the case referred to above it has been held as under:
“When a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime”.
  1. Though the learned D.A.G referred to the above decision, we do not under stand how this decision helps the prosecution. In our view this decision is equally helpful for the accused ……
  2. The learned D.A.G. lastly refers to the case of Mobarak Ali Vs Md. Hachi Miah, reported in 17 DLR (1965) 68. In the case referred to above it has been held as under:
“The law on this point is clear under section 464 of the Code of Criminal Procedure the Magistrate has to make an enquiry only when he finds that there is reason to believe that the accused is unsound mind. Similarly when a case is before a Court of Sessions that Court may also enquire into the question of insanity if it “appears to that Court”, that the accused is of unsound mind.
If the accused is reasonably believed to be of unsound mind, it is always open to a Court of Sessions to take action under section 465”.
  1. There is no dispute about the decisions cited above. In our view the above decision is not applicable in the case in hand as the facts and circumstances of the case in hand and the facts and circumstances of the case referred to above are not similar and identical. Because in the case in hand, the defence has been insisting right from the beginning of the case that the accused is insane. On 02.09.2007, the defence first brought to the notice of the Magistrate that the accused was insane and the learned Magistrate being convinced directed the jail authority to provide the accused with proper treatment. With such State of affairs the Sessions Judge should not have arrived at a decision that the accused was not insane with his unprofessional knowledge.
  2. We find that the defence did not leave no stone unturned to bring the allegation of insanity before the Sessions Judge right from the very beginning. But the learned Sessions Judge without having any opinion from the professional person held that the accused was not insane. In our view since the accused brought to the notice of the learned Sessions Judge about the insanity of the accused right from his beginning, the learned Sessions Judge should have obtained opinion from the professional person (in the present case, it is specialist doctor) before giving the decision that the accused was not insane. In any view of the matter, the learned Sessions Judge should not have proceeded with the case and recorded the evidence of the prosecution witnesses before giving decision on the point of insanity of the accused.
  3. Again, in his statement under section 164 of the Code of Criminal Procedure, the accused has stated: “শোভনকে নিয়ে অামি মশুরির চরায় যাইz তারপর ওকে অামি পানিতে ঠেসে ধরি- ও ছটফট করেছিলz কোন কথা বলেনিz কিছুক্ষণ পরে মারা যায়z লাশটা পানিতে ভেসে যায়z শোভনের পরনে একটা হাফপ্যান্ট ছিলz অ্যাশ কালারেরz গায়ে কোন জামা ছিল নাz লাশ ওখানেই ভেসেছিলz যে জমিতে অামি শোভনকে মারি, সেই জমি সেরাজ মুন্সীরz''
  4. But in the post mortem report it has been mentioned that the death was due to asphyxia following manual strangulation (throttling). But according to the confessional statement the cause of death was drowning. Therefore, we find that the confessional statement of the accused is not consistent with the prosecution case, the post mortem report and the inquest report.
  5. Another important point is required to be addressed here is that in the inquest report it has been stated that there was sign of burn on the person of the body of the deceased. But no where it has been stated in the post mortem report that there was sign of burn on the person of the body of the deceased. Again, the investigating officer (P.W. 15) has stated that on 06.08.2007, a G.D. Entry was lodged but he did not procure a copy of the G.D. Entry. Moreover, there is nothing in the record to show the result of the G. D. Entry. P.W. 4 who is the maternal grandfather of the deceased and the father of the informant stated that police arrested his two sons, namely, Ruhul and Reha in connection with the case. But they have not been made by accused in the case, even they have not been cited as witness in this case.
  6. Considering all these facts, circumstances and the evidence on record we are of the opinion that the prosecution has not been able to prove the charge against the condemned prisoner beyond doubt. Therefore, the condemned prisoner is liable to be acquitted.
  7. In the result, the Death Reference No. 133 of 2008 is rejected and the Criminal Appeal No. 8657 of 2008 and the Jail Appeal No. 30 of 2009 are allowed. The impugned judgment and order dated 01.12.2008 passed by the learned Sessions Judge, Rajshahi, in Sessions Case No. 609 of 2008 arising out of Motihar P. S. Case No. 03 dated 07.08.2007, corresponding to MGR No. 690 of 2007 is set aside. The condemned prisoner Md. Sajjad Ali is found not guilty of the charge brought against him and he is acquitted there from. The condemned prisoner shall be at liberty forthwith if not wanted in connection with any other case.
  8. Send down the lower court records with a copy of this judgment to the concerned court at once.
         Ed.