The State Vs. Nizam Uddin [4 LNJ (2015) 351]

Case No: Death Reference No. 12 of 2008

Judge: Abdur Rob,

Court: High Court Division,,

Advocate: Bishmadeb Chakraborty,Mr. Md. Atiqul Hoque,Mr. Nizamul Hoque Niam,Mr. A.S.M. Abdul Mobin,Mr. Md. Bahar Uddin-Al-Razi,,

Citation: 4 LNJ (2015) 351

Appellant: The State

Respondent: Nizam Uddin

Delivery Date: 2013-04-28


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Shahidul Islam, J.
And
Abdur Rob, J.
 
Judgment on
28.04.2013
  The State
-Versus-
Nizam Uddin
...Condemned-prisoner
(In Death Reference No. 12 of 2008)
 
Nizam Uddin. . . Convict-appellant
Versus
The State . . . Respondent
(in Criminal Appeal No. 935 of 2008)
With

Nizam Uddin . . .Convict-appellant
Versus
The State. . . Respondent
(In Jail Appeal No. 251 of 2008)
 
 
Penal Code (XLV of 1860)
Section- 302
Nari-o-Shishu Nirjaton Damon Ain (VIII of 2000)
Section- 11 (ka)
Since offence of murder is punishable under section 302 of the Penal Code was carried to the door of convict appellant he can be very much convicted for offence of section 302 of the Penal Code and, as such, we convert the offence of section 11(ka) of the Ain of 2000 to offence of section 302 of the Penal Code. Convict appellant, thus stands convicted for offence of section 302 of the Code. . . .(41)
 
Nari-O-Shishu Nirjaton Damon Ain (VIII of 2000)
Section- 11 (ka)
Though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice. . . . (44)
 
Asiman Begum Vs State, 51 DLR (AD) 18; State Vs Abul Kalam, 5 BLC 230 and Shibu Pada Acharjee Vs. State, 56 DLR 285 ref.
 
Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Md. Atiqul Hoque A.A.G. and
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State(In Death Reference No. 12 of 2008)

Mr. A.S.M. Abdul Mobin, Advocate with
Mr. Mohammad Shafiqur Rahman, Advocate.
. . . For the convict-appellant

Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Atiqul Hoque A.A.G. with
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State (In Criminal Appeal No. 935 of 2008)

With
Mr. Md. Bahar Uddin-Al-Razi, Advocate
. . . For the convict-appellant
 
Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Atiqul Hoque A.A.G. and
Mr. Nizamul Hoque Nizam, A.A.G
. . . For the State (In Jail Appeal No. 251 of 2008)
 
Death Reference No. 12 of 2008, Criminal Appeal No. 935 of 2008 with Jail Appeal No. 251 of 2008
 
JUDGMENT
Abdur Rob, J:
 
This reference under section 374 of the Code of Criminal Procedure, shortly, “the Code” has been made by the learned  Judge, Nari-O-Shisu Nirjatan Daman, Tribunal, Feni (hereinafter referred to as Tribunal) for confirmation of death sentence imposed upon accused Nizam Uddin, on his conviction under section 11(Ka) of the Nari-O-Shisu Nirjatan Daman Ain, 2000 (for short, Ain of 2000) awarded by the judgment dated 13.02.2008 passed in Nari-Shisu Case No. 38 of 2003 arising out of Feni Police Station Case No. 13 dated 15.07.2003 corresponding to G.R. No. 103 of 2003.
 
The prosecution case, in brief, is that one Md. Shamsuddin (P.W.1) brother-in-law of the appellant lodged a First Information Report, shortly, “FIR” on 15.03.2003 with Feni Police Station against the appellant alleging, inter-alia, that about six years ago his youngest sister Ferdous Ara Begum alias Kazal was given into marriage with accused Nizam. She gave birth to two daughters. After her marriage the accused began demanding dowry and pressed her. On 15.03.2003 at around 7.30 A.M.  an unknown driver informed that his sister Kazal had died. On hearing this he along with other members of his family went to the house of the accused and saw dead body of his sister on the floor of the house with her head to north. He also saw the injuries on her the right side of the head and to the side of the face and bleeding cut marks under her ear. The family members of the accused Nizam said that on the night on 14.03.2003, at around 9.30 P.M. Nizam along with his wife and two daughters went to bed for the night and that at around 3.30 A.M. the husband and wife started to quarrel. At one stage accused Nizam hit his wife Kazal on the head and to the right side at her face and fled. While the people of that house were taking her to the Feni Sadar Hospital for treatment she expired. It is mentioned that after marriage the accused pressed her to bring money as dowry from her father and brother to invest in his trade and to go abroad. The informant believes that the accused Nizam had killed Kazal for dowry. Hence the case.   
 
On the basis of the aforesaid FIR Feni Police station case No. 13 dated 15.07.2003 was started under section 11(ka) of the Ain, 2000 corresponding to G.R.No.103 of 2003.
 
The Investigating Officer took the case for investigation; he visited the place of occurrence and prepared the Inquest Report of the dead body in presence of witnesses. He duly sent the dead body of the deceased to the Forensic Medicine Department of Feni Medical College Hospital for post mortem. Post mortem examination of the victim was performed by Dr. Md. Ayub Ali.
 
Ultimately, on conclusion of investigation the Investigating Officer submitted charge-sheet against the accused appellant under section 11(ka) of the Ain, 2000.
 
Later, the case was duly sent to the Tribunal for trial. Learned Judge of the Tribunal on taking cognizance of the offence against the accused under section 11(ka) of the Ain, 2000 framed charge against him under the said provision of law. On being read over and explained the charge to the accused he pleaded not guilty and claimed to be tried.
 
During the course of trial the prosecution produced as many as 12 witnesses including the Medical Officer and the Investigating Officer. However, the defense but did not adduce any defense witness. The Tribunal after considering the evidence and materials on record found the accused guilty under section 11(Ka) of the Ain, 2000 and sentenced to death by its judgment and order dated 13.03.2008.
 
Death sentence matter has been referred to this Court by way of a Reference by Tribunal and the Reference has been noted as Death Reference No. 12 of 2008. Convict Nizam presented a petition of Appeal from Jail which has been numbered as Jail Appeal No. 251 of 2008. He also carried a petition of Appeal being registered as Criminal Appeal No 935 of 2008.
 
Death Reference, Jail Appeal and Criminal Appeal are heard together and disposed of by this common judgment.
 
Mr. Bishmadev Chakrabortty, learned Deputy Attorney General with Mr. Md. Atiqul Hoque, the learned Assistant Attorney General appeared in support of the Reference. While Mr. A.S.M Abdul Mobin, Advocate with Mr. Mohammad Shafiqur Rahman, learned Advocate appeared on behalf of the condemned-prisoner. Mr. Md. Bahar Uddin-Al-Razi, learned Advocate appeared in support of Jail Appeal.
 
Mr. Bishmadev Chakrabortty, the learned DAG, submits that the prosecution had successfully established his case beyond reasonable doubt and that the ingredients of the aforesaid special provision of law having been attracted the Tribunal duly found that the condemned-prisoner had committed the offence as alleged. He also submits that reason to disbelieve the witnesses nor the defence could shake the credibility of the witnesses. The story of the case is clearly suggests the involvement of the convict Nizam with the offence and also by his confessional statement made under section 164 of the Code of the convict in the preparation of the offence. In this regard learned DAG contended that the victim was an innocent village house wife who did not have any enmity with anyone and the defence has also failed to produce any evidence on that count, the alleged occurrence also took place after about six years of the marriage as meted out by the accused. Learned DAG insisted that a close reading of the statement of the P.Ws. and the confessional statement of the accused Nizam proved that he is solely responsible for the murder of victim Kazal. He finally submits that the Tribunal committed no error of law or facts in passing the judgment of conviction and sentence against the convict and, therefore, there is no justifiable reason to interfere with the impugned judgment and order passed by the Tribunal.
 
Mr. A.S.M. Abdul Mobin, learned Advocate took us through the FIR, and the entire evidence on records, including the materials exhibits and submitted that the Tribunal fell into error of law in finding the accused guilty of the charges levelled against him, for the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submits that the allegation of killing the victim Kazal is not believable and the accused has been implicated by the informant out of suspicion. Considering the same the Tribunal came to its findings merely upon conjectures and surmises, not upon legal evidence on records. The taintive  relationship sought to be proved as a motive of the offence has not been proved by cogent and credible evidence. He further submits with emphasis that the sentence of death passed upon the accused is extremely harsh and too severe. Death sentence, he added, should not be passed as of routine and that this is not a case in which sentence of death is warranted.  
 
Informant Shiekh Shamsuddin was examined as P. W.1 who identified the FIR and his sister victim, Ferdous Ara Begum @ Kazal was given into marriage with the appellant about six years ago. She gave birth to two daughters; that after he marriage the accused began demanding dowry and pressed her. On 15.03.2003 at around 7.30 A.M.  an unknown driver informed that his sister Kazal had died. On hearing this he along with other members of his family went to the house of the accused and saw that dead body of his sister on the floor of the house with her head to north. He also saw the injuries on her right side of the head  and to the side of the face and bleeding cut marks under her ear. The family members of the accused Nizam said that on the night of 14.03.2003, at around 9.30 P.M. Nizam along with his wife and two daughters went to bed for the night and that at around 3.30 A.M. the husband and wife started to quarrel. At one stage accused Nizam hit his wife Kazal on the head and to the right side at her face and fled. While the people of that house were taking her to the Feni Sadar Hospital for treatment she expired. It is mentioned that after marriage the accused pressed her to bring money as dowry from her father and brother to invest in his trade and to go abroad. The informant believes that the accused Nizam had killed Kazal for dowry.
 
P.W. 2 Taslima Akter sister of the victim in his examination-in-chief stated that in the morning on  15.03.2003 at around 6.00 A.M that they came to know through a Tempo driver that her sister had died. After that she along with other members of the family went to the house of the accused and saw that her sister was lying on the floor of the house. She saw the sharp cut injuries on her head and to the right side at the face of the victim. She also stated that the local people said that upon hearing sobbing noises they came to the spot and saw that the victim lying on the floor seriously injured. They also informed that the accused Nizam had injured her with a sharp dao. In the morning she was taken to the Hospital and the doctor pronounced her dead.
 
P.W. 3 Saleha Begum mother of the accused stated that on the night of 14.03.2003 at around 3.30 A.M. her son, accused Nizam killed her daughter-in-law by inflicting with a sharp dao. They awoke at after the scream of the victim. After the occurrence her son fled to his sister’s house. Her husband and other sons local people took the victim to the hospital the doctor declared her dead.
 
P.W. 4. Parvin, sister-in-law of the victim, in his examination-in-chief stated that on the date of occurrence at night at about 3.30 A.M. the accused Nizam fled away after killing kazal. 
 
P.W. 5. Mafzalur Rahman father of the accused in his examination-in-chief stated that on 14.03.2003 at around 3.30 A.M. he heard scream of his daughter-in-law. He along with his wife entered the room and his wife said that his son, accused Nizam had killed their daughter-in-law. She was lying on the bed with injuries on her. Then the accused fled. The victim died on the way to the hospital. The victim had been taken to father’s house and burried there.
 
P.W. 7. Ayub Ali Member deposed that he did not see the occurrence, after 3/4 months of the marriage the accused was mad. Before marriage he was sound mined.
 
P.W. 8. Md. Anisur Rahman Sub-Inspector of Police deposed that on 15.03.2003 he was with Feni Police station. On the basis of verbal allegation of informant he wrote the FIR and filled up the FIR form and he identified his signature so endorsed thereon was marked as exhibits 2 and 2/1 respectively.  
 
P.W. 9. Dr. Md. Ayub Ali deposed that he was the Medical Officer of the Feni Modern Medical College Hospital and he performed the post mortem on 15.03.2003. Constable 525 Delwar Hossain identified dead body of the deceased. He opined that the death was due to heomrrhage and shock which was antemortem and homicidal in nature.
 
P.W. 10 A. B. M. Shawkat Iqbal Shahin was the First Class, Magistrate of Feni. He deposed that on 16.03.2003 accused Nizam made confessional statement under section 164 of the Code where he disclosed that he injured the victim Kazal implicating by sharp cut dao for which she had died. The said statement and his signature therein was marked as exhibits 4,4/1,4/2,4/3,4/4 and 4/5 respectively.  
 
P.W.11. Constable 976 Delwar Hossain deposed that on 15.03.2003 he was with Feni Police station. He was taken the dead body from her house to Feni Sadar Hospital. He identified c/c and his signature therein was marked as exhibits 5 and 5/1 respectively.
 
P.W. 12. Appela Razu Naha in his examination-in-chief stated that on 15.03.2003 Sub Inspector of Police Yeasin Investigating Officer of the case was with Feni Police station who was Known to him. The signature of the said Yeasin was known to him. He identified his signature. He identified the material exhibits I-V and sketch map, index, seizure list and inquest report and his signature therein was marked as exhibits 6,6/1,7,7/1,8,8/1, 9 and 9/1 respectively.
 
They were thoroughly cross-examined by the defence but nothing was found to doubt their evidence. Moreover, the convict appellant Nizam made confessional statement under section 164 of the Code (exhibit 5) where he had disclosed that he injured the victim Kazal with sharp dao, for which she had died.
 
In the case there is no ocular evidence witnessing the commission of crime by convict-appellant. Prosecution relied upon circumstantial evidence in proof of its case. It is always to be remembered that there is no law that commission of a crime must by witnessed by witnesses and they are to stand in witness box to prove the crime. Commission of crime can be also, well proved by circumstantial evidence. Circumstantial evidence is more cogent and convincing than the ocular evidence. It is correctly said that witnesses may tell a lie and it is not difficult to procure false, tutored and biased witness but it was very much difficult to procure circumstantial evidence.
 
Prosecution in proof of guilt of offence relied upon the following circumstances:
  1. First Circumstance: Deceased and convict-appellant were admittedly husband and wife and they lived in the same house at the time of commission of offence. Ordinarily an accused has no obligation to account for the death for which he is placed on trial but in a wife murder case position of law is altogether different. The murder having taken place while the convict-appellant was living with the deceased wife Kazal in the same house, the convict-appellant had an obligation to explain how his wife met with death. From the above, the legitimate conclusion that inevitably flows is that it is the husband convict-appellant who had killed his wife deceased Kazal.
  2. Second Circumstance: Medical evidence: Dr. Ayub Ali (PW 9) found injuries on her right side of the head and to the side of face and bleeding cut marks under her ear. Dr. PW. 9 on extensin dissection there is clotted blood was found after subarachnoid space and subdural space and right eye is protruded out and lacerated and congested right mandice as fructure.  He recorded opinion that the victim died due to hemorrhage and shock which was atemortem and homicidal in nature.
  3. Third Circumstance: Convict-appellant did not even lodge any information to police station in respect of the death of his wife deceased Kazal or took any medical help for saving the life of the deceased and this conduct speaks volumes against him and inference of guilt of convict-appellant can be easily gathered.
Circumstance noted above do not at all suggest innocence of convict-appellant rather formidably suggest his involvement in the murder of his wife deceased Kazal and all the circumstances taken together unerringly point to guilt of convict-appellant and the irresistible conclusion that flows is that convict-appellant is perpetrator of crime who killed his wife deceased Kazal. 
 
PW 6 Nurul Hoque had been tendered from prosecution. Cross-examination from the accused person had been declined. PW 1 Md. Shamsuddin and PW 2 Taslima Akter brother and sister of deceased Kazal had given a total go bye to prosecution case when they offered version that no demand of dowry had been put forward by their brother-in-law who is no other than the husband of deceased PW 9 is Doctor who proved Post Mortem Report and gave evidence that deceased Ferdous Ara Kazal died due to hemorrhage and shock which was antemortem and homicidal in nature. P.W 12 Appela Razu Naha Police Personnel who identified the signature of the Investigating Officer, inquest report of the dead body of Kazal, sketch Map, index, seizure list etc. instead of S.I Yeasin who was abroad at the moment serving with the Bangladesh Mission at the United Nations.
 
The Tribunal found the husband Nizamuddin guilty of offence of section 11(Ka) of the Ain of 2000 and convicted him thereunder. Consequential sentence was gallows.
 
This brings us to a legal aspect of the matter. Convict-appellant stood charged and convicted for offence of section 11(ka) of the Ain of 2000. Section 11(Ka) enjoins that if the husband of a woman or the father, mother, guardian, relations or any other person on behalf of the husband for dowry causes death to a woman or ventures to cause death or causes hurt or have a try to cause hurt that  husband, father, mother, guardian, relation or the person (a) shall stand sentenced to death for causing death or shall stand sentenced to imprisonment for life for mounting endeavor to cause death and in both the counts he shall be, also, liable to pay fine, and (b) shall be sentenced to imprisonment for life for causing hurt or be sentenced to rigorous imprisonment for a period not more than fourteen (14) years and less than five (5) years for striving to cause hurt and in both counts shall be liable to fine.
 
In order to attract section 11(Ka) it is to be proved that death was caused in view of demand of dowry put forward from the side of husband or father, mother, guardian, or relation of the husband or any person for and on behalf of husband. 
 
In the case putting forward demand of dowry by convict-appellant could not be proved by legal evidence. PW 1 and PW 2, brother and sister of deceased Kazal, would have been the best witnesses to testify the demand of dowry by convict-appellant but both PW 1 and PW 2 had totally given a go-bye to the prosecution case and betrayed the cause of their own sister who was done to death by convict-appellant.
 
This takes us to a legal debate of fundamental character, which is,
  1. Whether the convict-appellant can be graced with a verdict of acquittal when charge of section 11(Ka) of the Ain of 2000 could not be pressed into service against him.
  2. When a clear case of murder has been established by the confessional statement recorded under section 164 of the code by the accused and medical evidence against him whether the convict-appellant can be convicted for the offence of murder punishable under section 302 of the Penal Code.
  3. Whether the case is required to be sent back to Tribunal or Court of Sessions for fresh trial. 
Section 25 of the Ain of 2000 postulates that Tribunal defined section 2 (Ghha=W) shall be treated as Court of Sessions and Tribunal shall be able to exercise all powers of Sessions Court in holding trial of an offence.
 
Section 26 of the Ain of 2000 enshrines that Tribunal so constituted shall be recorded as Nari-O-Shishu Nirjatan Daman Tribunal and shall be constituted with one Judge and Judge of Tribunal shall be appointed from amongst District and Sessions Judges to the Government and Government, if necessary, shall appoint any District and Sessions Judge as Tribunal Judge in addition to his charge. Section 20 further enjoins that under the section Additional District and Sessions Judge shall, also, stand included as District and Sessions Judge.
 
From the above it becomes manifestly clear that a Tribunal trying a case under the Ain of 2000 is, also, a Court of District and Sessions Judge. When a Judge sits in a Tribunal or Special Tribunal Case holding trial of an offence under a Statute or Special Statute is a Tribunal or Special Tribunal and a Judge when sits in Sessions Case trying an offence punishable under Penal sections of Penal Code sits as Sessions Judge.
 
The case in hand, although, tried by a Tribunal constituted under the Ain of 2000 that Tribunal was, also, the Court of sessions. In the judgment learned judge was described as District and Sessions Judge, Fani as well as Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Feni. Judgment demonstrates that learned District and Sessions Judge had been, also, exercising the power and jurisdiction of Nari-O-Shishu Nirjatan Daman Tribunal. Fate of the convict-appellant and result of the case would have been the same whether it would have been tried either as a Nari-O-Shishi case by the Tribunal or as a Sessions case by learned Sessions Judge of Tribunal and if section 11(ka) of The Ain, 2000 was not attracted in respect of convict-appellant, the offence of section 302 of the Penal Code could be very much pressed into service against the convict-appellant and he could be conveniently tried and convicted for offence of section  302 of the Penal Code. 
 
In Asiman Begum Vs State represented by Deputy Commissioner, 51 DLR(AD) 18 the accused-appellant along with 6 others was put on trial before Nari-O-Shishu Nirjatan Bishesh Adalat, Patuakhali to answer a charge of section 10(1) of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995  in Nari-O-Shishu Case No. 2 of 1996. Accused-appellant was found guilty under the first part of section 304 of the Penal Code and sentenced to rigorous imprisonment for four (4) years and, also, a fine of Taka 1,000 in default of payment of fine to suffer rigorous imprisonment for one (1) year more. A single Judge of High Court Division disposing of the Criminal appeal preferred by convict-appellant observed that the trial had been vitiated for want of jurisdiction inasmuch as Nari-O-Shishu Nirjatan (Bishesh Bidhan) Adalat, could only try an offence under the aforesaid Bishesh Bidhan Ain, 1995 and not an offence under The Penal Code, learned Single Judge sent the case back on remand to learned Sessions Judge to try it in accordance with law. Before Appellate Division it was argued from side of accused-appellant that the remand order for trial of the case as a Sessions Case in the particular circumstances of the case will be a mere formality because Nari-O-Shishu Case No. 2 of 1996, although, tried under Bishesh Bidhan Ain, 1995 by a Bishesh Adalat, the presiding officer was no other than the Sessions Judge himself and, as such, it was unlikely that the result would be anything different if the case was tried by him as a Sessions Case. Appellate Division found considerable substance in the submission of learned Advocate for accused-appellant. Appellate Division, thus sent the appeal to High Court Division to consider the case on merit and to pass whatever order or orders it might think appropriate in the interest of justice.
 
In State Vs Abul Kalam, 5 BLC 230 one Abul Kalam stood convicted for offence of section 10(1) of The Ain of 1995 for murder of his wife for dowry by learned Sessions Judge and Special Tribunal No. 1, Noakhali. Consequential sentence was death. Condemned-prisoner preferred Jail appeal and, also, regular Criminal appeal before High Court Division. There had been, also, Death Reference. A Division Bench of High Court Division heard Death Reference, Jail Appeal and Criminal Appeal together and disposed of those by a common Judgment. High Court Division found that there had not been cogent evidence as to committing murder for dowry and no evidence had been led as to the real cause of killing of wife by husband and held that the case did not come under section 10(1) of The Ain of 1995 and the case comes under section 302 of The Penal Code. The High Court Division further held that Sessions Judge, in fact, was the Special Tribunal No. 1 who tried the case and for no fault of the accused the case had been tried as Special Tribunal Case. High Court Division instead of sending the case back for fresh trial under section 302 of The Penal Code by learned Sessions Judge disposed of the appeal. High Court Division altered conviction from section 10(1) of The Ain, 1995 to one under section 302 of Penal Code. Sentence of death was altered to one of imprisonment for life. The High Court Division in rendering decision took into account Asiman Begum vs State, (Supra).
 
A similar question was, also, considered in Shibu Pada Acharjee Vs. State, 56 DLR 285. In the said case, accused-appellant was convicted for offence of Section 4(c) of The Ordinance of 1983 for commission of rape upon victim Ratna Rani but ingredients of Section 4(c) of the Ordinance of 1983 could not brought home to accused appellant. In the case it had been laid down:
 
“To take the prosecution out of Court on a question of technicality, will be a traversity of justice and technicality must bend to cause of justice inasmuch as fact of law is justice”.
Accused appellant can be fastened for offence of section 376 of the Penal Code and conviction under section 4(c) of The Ordinance of 1983 can be altered to one of section 376 of the Penal Code.
In the said case conviction under section 4 (c) of the Ordinace of 1983 was altered to one of section 376 of the Penal Code. Asiman Begum vs State, (Supra) and State Vs Abul Kalam, (Supra) had been, also, discussed considered and meditated in Shibupada Acharjee Vs. State (supra).
In the event of sending the case either to Tribunal or Court of Sessions for fresh trial proceeding would be protracted which cannot be allowed in the interest of true dispensation of criminal Justice.
 
Since offence of murder is punishable under section 302 of the Penal Code was carried to the door of convict appellant he can be very much convicted for offence of section 302 of the Penal Code and, as such, we convert the offence of section 11(ka) of the Ain of 2000 to offence of section 302 of the Penal Code. Convict appellant, thus stands convicted for offence of section 302 of the Code.
 
Legal debate stands solved in the following terms and language:
  1. Convict appellant can not be graced with a verdict of acquittal.
  2. Convict appellant can be convicted for the offence punishable under section 302 of the Penal Code
  3. Case is not required to be sent either to tribunal or Court of Sessions for fresh trial. 
What sentence is to be imposed upon convict-appellant—death or imprisonment for life?
Sentencing discretion on the part of a Judge is the most difficult task to perform. There is no system or procedure in the Criminal Justice administration method or Rule to exercise such discretion. In sentencing process, two important factors come out which shall shape appropriate sentence a. Aggravating factor, and b. Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and Court responded to the society’s cry for justice. Under section 302 of The Code, though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice.
Convict-appellant is aged about 39 years when he was examined under section 342 of the Code of Criminal Procedure. Record indicates that convict-appellant is not a hard criminal and he cannot be at all characterised to be a menace to the society. Taking an account of aggravating and mitigating circumstance, we are of this considered view that ends of justice will be met if death sentence is altered to one at imprisonment for life. Convict-appellant thus, stands sentenced to imprisonment for life. Convict-appellant, also, is to pay a fine of Taka 10,000 and in default of payment of fine to suffer rigorous imprisonment for six (6) months more.
 
On the premises of the foregoing discussion, the following orders are passed:
  1. Death Reference No.12 of 2008 is rejected.
  2. Jail Appeal No. 251 of 2008 and Criminal Appeal No. 935 of 2008 stand dismissed with modification of conviction and sentence. Judgment of conviction and sentence dated 13th March, 2008 passed by Nari-O-Shishu Nirjatan Daman Bishesh Adalat (Tribunal), Feni in Nari-O-Shishu Case No. 38 of 2003 is modified in the epithet that convict-appellant is found guilty of the offence of section 302 of the Penal Code and not for an offence of section 11(ka) of Nari-O-Shishu Nirjatan Daman Ain, 2000 and conviction for offence of section 11(ka) of The Ain of 2000 is altered to one of section 302 of The Penal Code and death  sentence is altered to one of sentence of imprisonment for life and he is to pay a fine of Tk. 10,000 and in default of payment of fine to undergo rigorous imprisonment for six (6) months more. Out of this awarded sentence the quantum of sentence he has already served out shall be deducted on the application of the provision of section 35A of the Code of Criminal Procedure. The period in custody before commencement of Trial and after commencement of Trial be deducted from the total sentence under section 35A of the Code of Criminal Procedure. Let a copy of the judgment be sent to the Nari-O-Shishu Nirjatan Daman Tribunal, Feni. The Jail Superintendent, Feni is directed to shift the condemned-prisoner from death cell into the common accommodation for the convict-person.  
Send down the lower court records at once.

Communicate this order at once.

Ed.