The State Vs. Sree Jatish Chandra Roy, 3 LNJ (2014) 498

Case No: DEATH REFERENCE NO. 32 OF 2008

Judge: Abdur Rob,

Court: High Court Division,,

Advocate: Bishmadeb Chakraborty,Mr. Nizamul Hoque Nizam,Mr. Md. Khairul Alam,Ms. Shirin Afroz ,,

Citation: 3 LNJ (2014) 498

Case Year: 2014

Appellant: The State

Respondent: Sree Jatish Chandra Roy

Subject: Commutation of Sentence,

Delivery Date: 2013-05-13


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


Judgment on
13.05.2013
 
  The State
Versus
Sree Jatish Chandra Roy
. . .Condemned-Prisoner.
( In Death Reference No. 32 of 2008)
With
Sree Jatish Chandra Roy
. . .Convict-appellant
Versus
The State
. . .Respondent
(In Criminal Appeal No. 1741 of 2008)
With
Sree Jatish Chandra Roy
. . . Convict-appellant
Versus
The State
. . .Respondent
(In Jail Appeal No. 361 of 2008)
 
 
Evidence Act (I of 1872)
Section 8
There are as many as four circumstances which do not at all suggest innocence of convict appellant, rather, formidably suggest his involvement in the murder of his wife deceased Moyna and all the circumstances unerringly point to the gilt of convict-appellant. . . . (29 and 30)

Penal Code (XLV of 1860)
Section 302
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 11(Ka)
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 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 be very much pressed into service against the convict-appellant and he could be conveniently tried and convicted for offence of section  302 of Penal Code.  Since offence of murder is punishable under section 302 of Penal Code was carried to the door of convict appellant he can be very much convicted for offence of section 302 of the Penal Code and, as such, we convert the offence of section 11(ka) of the Ain of 2000 to offence of section 302 of Penal Code. Convict appellant, thus stands convicted for offence of section 302 of the Code. . . . (38 and 42)
 
Code of Criminal Procedure (V of 1898)
Section 376
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 of 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. . . . (45)

Asiman Begum Vs. State, 51 DLR (AD) 18; State Vs. Abul Kalam, 5 BLC 230; Shibu Pada Acharjee Vs. State, 56 DLR 285 ref.
 
Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Nizamul Haque Nizam, A.A.G.
. . . For the State
(In Death Reference No. 32 of 2008)

Mr. Khairul Alam, Advocate,
. . . For the convict-appellant.

Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Nizamul Haque Nizam, A.A.G.
. . . For the State
(In Criminal Appeal No. 1741 of 2008)

Ms. Shirin Afroz (Shelley), Advocate
. . . For the convict-appellant.

Mr. Bishmadev Chakrabortty, D.A.G. with
Mr. Nizamul Haque Nizam, A.A.G.
. . . For the State
(In Jail Appeal No. 361 of 2008)

Death  Reference No. 32 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 Shisu Nirjatan Daman, Tribunal, Dinajpur (hereinafter referred to as Tribunal) for confirmation of death sentence imposed upon accused Sree Jatish Chandra Roy on his conviction under section 11(Ka) of the Nari-Shisu-Nirjatan Daman Ain, 2000 (in short, Ain of 2000) awarded by the judgment dated 18.03.2008 passed in Nari-O-Shisu Case No. 246 of 2004 arising out of  Birgonj Police Station Case No. 09 dated 15.03.2004 corresponding to G.R. No. 94 of 2004.

The prosecution case, in brief, is that one Chandra Dhar (P.W.1) lodged a First Information Report, shortly, “FIR” on 15.03.2004 with Birganj police station alleging, inter alia, that marriage was held between the informant’s daughter and the accused Jotish Chandra Ray about 2/3 years ago; that after few days from the date of their marriage accused Jotish Chandra Ray demanded Tk. 40,000/= as dowry to the informant’s daughter; that the informant disclosed his inability to pay the same as result the accused Jotish Chandra and his brother, father mother used to torture upon the daughter of the informant; that the informant considering the peace of his daughter paid Tk. 15,000/= as dowry to the accused Jotish Chandra Ray to purchase a shallow machine but the accused persons did not stop the torture; that the informant informed the matter to the local respectable persons; that on 14.03.2004 at about 3.30 A.M the accused Jotish and his uncle Kaltu came to the house of the informant and disclosed that informant’s daughter Moyna Rani committed suicide by hanging herself; that being informed the said news ;the informant along with his son and others went to the place of occurrence and found the death body of his daughter covered by a cloth; that the informant found sign of injuries on the various part of body of the victim.

On the basis of the aforesaid fact Birgonj Police station case No. 09 dated 15.03.2004 was lodged against the convict-appellant and (5) five others under section 11(ka)/30 of the Ain, 2000 corresponding to G.R. No. 94 of 2004.

The Investigating Officer took up the case for investigation; he visited the place of occurrence and prepared the Inquest Report of the dead body in the presence of respective witnesses. He duly sent the body of the deceased to the Forensic Medicine Department of Dinajpur Medical College Hospital for post mortem. Post mortem examination of the victim was performed by one Dr. Rafiqul Islam.

Ultimately, on conclusion of investigation the Investigating Officer, submitted charge-sheet against the accused Jotish along with two accused Pakhi Rani and Upananda under section 11(ka)/30 of the Ain, 2000 while final report submitted in the name of accused Bhamar, Fatik and Indra Mohan.

Later, the case was duly sent to the concerned Tribunal for trial. Learned Judge of the Tribunal on taking cognizance of the offence against all of the accused under section 11(ka)/30 of the Ain, 2000 framed charge against them under the said provision of law. On being read over and explained the charge to the accused they pleaded not guilty and claimed to be tried.

During the course of trial the prosecution produced as many as 13 witnesses including the Medical Officer and the Investigating Officer. However, the defense did not adduce any defense witness. The Tribunal after considering the evidence and materials on record found the accused Jatish guilty under section 11(Ka) of the Ain, 2000 and sentenced him to death and acquitted of the charge Pakhi Rani, Upananda, Bhamar, Fatik and Indra Mohan by its judgment and order dated 18.03.2008.

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. 32 of 2008. Convict Jotish however, presented a petition of Appeal from jail which has been numbered as Jail Appeal No. 361 of 2008. He also carried a petition of Appeal being registered as Criminal Appeal No. 1741 of 2008.

Death Reference, Jail Appeal and Criminal Appeal are heard together and are disposed of by this common judgment.

Mr. Bishmadev Chakrabortty, the learned Deputy Attorney General with Mr. Nizamul Haque Nizam, the learned Assistant Attorney General appeared in support of the Reference. While Mr. Khairul Alam, the learned Advocate appeared on behalf of the condemned prisoner. Mrs. Shirin Afroz (Shelley), learned Advocate appeared in support of Jail Appeal.

Mr. Bishmadev Chakrabortty, the learned DAG, submits that the prosecution had successfully established its case beyond any 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 there is no reason to disbelieve the witnesses nor the defence could shake the credibility of the witnesses. The story of the case clearly and exclusively suggests the involvement of the convict Jotish with the offence, that is, the accused has tainted his relationship with the victim over demand of dowry which the father of the victim was unable to pay. In this regard learned DAG contends that the victim was an  innocent village house wife who did not have any enmity with anyone so that and the defence has also failed to produce any evidence on that count. The alleged occurrence also took place after 2/3 years of the marriage as meted out by the accused. Learned DAG in this regard insisted that a close reading of the statements of the P. Ws will also suggest that the accused is solely responsible for the murder of the victim. 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.

Convict Jotish is defended by Mr. Khairul Alam learned Advocate who took us through the FIR, and the entire evidence on records including the materials exhibit and submitted that the Tribunal fell into error of law in finding the accused guilty of the charges so levelled against him, for the prosecution has miserably failed to prove the case beyond reasonable doubt. He further submits that allegation of killing the victim Moyna is not believable and the victim Moyna had committed suicide by hanging herself and that the accused has been implicated by the informant out of suspicion. Considering the same the Tribunal came to its findings merely upon conjectures and surmises, not upon legal evidence on records. The tainted 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.

The informant Chakradhar was examined as P. W.1 who identified the FIR and his signature as endorsed therein was marked as exhibits 1 and 1/1 respectively. The said witness specifically stated in his deposition that the informant gave his daughter into marriage with accused Jatish about 2/3 years ago; that after a few days of their marriage the accused Jotish demanded Tk. 40,000/= as dowry from the informant’s daughter and began to torture the victim. However, the informant could not fulfill this unlawful demand; but considering the peace of his daughter he paid Tk. 15,000/= as dowry to the accused. But the accused continued to torture her. The informant to the brought this the notice of the local elite that on 14.03.2004 at about 3.30 A.M the accused and his uncle Kaltu came to the house of the informant and informed that Moyna had committed suicide by hanging herself that on receiving the news the informant along with his son and others rushed to the house of the accused and saw the dead body of his daughter covered with a cloth.  That the informant also found injuries on her person.

P.W. 2 Amal, brother of the victim, in his examination-in-chief stated that the victim Moyna was given into marriage with accused Jatish. She gave birth to one child. The accused used to demand Tk. 40,000 as dowry from his father-in-law and wife and tortured her. On 14.03.2004 the accused assaulted and killed his sister because the deceased failed to pay the dowry. On the morning of 14.03.2004, he and his father and others went to the spot and saw the dead body of Moyna covered with a cloth. He also saw the injuries on her body. After that the police came to the spot and took away the dead body.

P.W. 3 Zanaky Rani, mother of the victim deposed that Moyna was given into marriage with accused Jatish. After marriage Jatish used to demand Tk. 40,000/- as dowry from and tortured her daughter. After receiving news of the death of Moyna, they rushed to Jatish’s house and saw the dead body. She also saw the injuries on her body. In her cross-examination, she deposed that it is not a fact that her daughter committed suicide.

P.W.4. Uttom, brother of the victim, in his examination-in-chief stated that victim Moyna, after marriage with accused Jatish, started conjugal life with the accused at his house. The accused used to assault Moyna demanding Tk. 40,000/- as dowry. On 14.03.2004 he learnt that his sister had died and went to Jatish’s house and saw the dead body of Moyna. The dead body was covered with a cloth. He also saw the injuries on her body.

In his cross-examination, he stated that he went to the house to the accused and saw the dead body of his sister. The accused told him that his sister Moyna had committed suicide.

P.W. 5. Shib Proshad deposed that after marriage, Jatish and Moyna started consugal life and from the beginning the accused used to assault her for dowry. On 14.03.2004 he came to know that Moyna had died and he went to the house of the accused and saw the dead body of Moyna. He also saw the injuries on her body. In his cross-examination he deposed that it is not a fact that the accused had not killed Moyna for dowry. 

P.W. 6. Provananda in his examination-in-chief stated that he heard that Moyna had committed suicide. Victim Moyna had died in the house of Jatish.

P.W. 7. Bishawnath in his examination-in-chief stated that Moyna had died in the house of Jatish. Moyna had committed suicide by hanging herself.

P.W. 8. Dilip, deposed that Moyna had died in the house of accused Jatish about 2/3 years before.

P.W. 9. Debesh, he is a Chairman and deposed that Moyna had died in the house of her husband Jatish and he also said that Moyna had committed suicide.

P.W. 10. Tunkunath, he deposed that on 14.03.2004 Moyna had died and he went to house of accused Jatish and saw the dead body of Moyna. He also heard that Moyna died for assault injuries.

P.W. 11. Dilip, deposed that he went to house of accused Jatish and saw the dead body of Moyna.

P.W. 12. Dr. Rafiqul Islam deposed that he was the Medical Officer at Dinajpur Medical College Hospital and Dr. Jalal Uddin performed the post mortem on 16.03.2004. His hand writing and signature was known to Dr. Rafiqul Islam (PW.12). Dr. Jalal Uddin also found the following injuries:

1. Blood coming from right ear.
2. Swelling on right cheek.
3. A thin mark from left ear to right side of neck.
4. Blood coming from vagina.

Death, in his opinion, was caused due to haemorrhage, shock and asphyxia which was antimortem and homicidal in nature.

P.W.13. Sayeed, Sub-Inspector of Police in his examination-in-chief stated that on 15.03.2004 he was performing his duty at Birgonj Police Station. On the basis of verbal allegation of the informant the Officer-in- Charge recorded the FIR with Birgonj Police Station against Jatish alleging that he had killed his daughter Moyna for dowry. Earlier unnatural Death Case No. 08 dated 15.03.2004 was started. Offcer-in-Charge, handed over the case to him for investigation. He prepared inquest report of dead body of Moyna. He took up the case for investigation. During investigation of the said unnatural Death Case and on the basis of said FIR he visited the place of occurrence, examined witness, prepared sketch map and index. He proved the sketch map and index and his signatures thereon so endorsed was marked as exhibits 3, 3/1, 4 and 4/1 respectively. He further deposed that he had arrested the accused and seized a rope as alamat.

All the prosecution witnesses were cross-examined by the defence but nothing acceptable or tangible could be made out by the defence in support of his claimed innocence. P.Ws. 2 and 3 brother and mother of  deceased were not examined by the police. Accordingly, their statements are not considerable. P.W. 12 is a Doctor who proved Post Mortem Report and gave evidence that deceased Sreemoti Moyna Rani died due to haemorrhage, shock and asphyxia which was antemortem and homicidal in nature. P.W. 13 who is the Investigating Officer gave evidence and proved inquest report of the dead body of Moyna, sketch Map, index, and seizure list.
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 Moyna in the same house, the convict-appellant had an obligation to explain how his wife met with death. The plea adopted from the side of husband convict-appellant stood proved to be false. From the above, the legitimate conclusion that inevitably flows is that it is the husband convict-appellant who had killed his wife deceased Moyna.
  2. Second Circumstance: Medical evidence: Dr. Jalal found injuries on her right ear, swelling on right cheek, a thin mark from left ear to right side of neck and blood amitting of her vagina. Dr. Jalal recorded opinion that the victim died due to haemorrhage, shock and asphyxia which was antemortem and homicidal in nature.
  3. Third Circumstance: Convict-appellant did not even lodge any information to the police station about the unnatural death of his wife; deceased Moyna by way of commission of suicide nor did he take any medical help for saving the life of the deceased and this conduct speaks volumes against him and is an inference of guilt on the part of convict-appellant.
  4. Fourth Circumstance:  False plea adopted by convict-appellant: Strategy adopted by convict-appellant was the deceased  Moyna committed suicide by hanging        herself. This plea totally nullified by medical evidence of Dr. PW.12. This false plea added an additional link to complete the chain of circumstance.
Circumstances noted above do not at all suggest innocence of convict-appellant rather formidably suggest his involvement in the murder of his wife deceased Moyna and all the circumstances unerringly point to the guilt of convict-appellant.

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. 

The demand of dowry by convict-appellant could not be proved by evidence. PWs. 2 and 3, brother and mother of deceased Moyna, would have been the best witnesses to testify to the demand of dowry by convict-appellant but they were not examined by the police.

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 circumstantial and medical evidence against him whether the convict-appellant can be convicted for the offence of murder punishable under section 302 of the Penal Code.
  3. Whether the case is required to be sent back to Tribunal or Court of Sessions for fresh trial.
Section 25 of the Ain of 2000 postulates that Tribunal defined section 2 (Ghha=W) shall be treated as Court of Sessions and Tribunal shall be able to exercise all powers of Sessions Court in holding trial of an offence.

Section 26 of the Ain of 2000 enshrines that Tribunal so constituted shall be recorded as Nari-O-Shishu Nirjatan Daman Tribunal and shall be constituted with one Judge and Judge of Tribunal shall be appointed from amongst District and Sessions Judges to the Government and Government, if necessary, shall appoint any District and Sessions Judge as Tribunal Judge in addition to his charge. Section 20 further enjoins that under the section Additional District and Sessions Judge shall, also, stand included as District and Sessions Judge.

From the above it becomes manifestly clear that a Tribunal trying a case under the Ain of 2000 is, also, a Court of District and Sessions Judge. When a Judge sits in a Tribunal or Special Tribunal Case holding trial of an offence under a Statute or Special Statute is a Tribunal or Special Tribunal and a Judge when sits in Sessions Case trying an offence punishable under Penal sections of Penal Code sits as Sessions Judge.

The case in hand, 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, Dinajpur as well as Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Dinajpur. 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 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 be very much pressed into service against the convict-appellant and he could be conveniently tried and convicted for offence of section  302 of Penal Code. 
 
In Asiman Begum Vs State represented by Deputy Commissioner, 51 DLR(AD) 18 the accused-appellant along with 6 others was put on trial before Nari-O-Shishu Nirjatan Bishesh Adalat, Patuakhali to answer a charge of section 10(1) of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995  in Nari-O-Shishu Case No. 2 of 1996. Accused-appellant was found guilty under the first part of section 304 of the Penal Code and sentenced to rigorous imprisonment for four (4) years and, also, a fine of Tk. 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 Section4(c) of The Ordinance of 1983 for commission of rape upon victim Ratna Rani but ingredients of Section 4(c) of the Ordinance of 1983 could not be brought home to accused appellant. In the case it had been laid down: “To take the prosecution out of Court on a question of technicality, will be a travesty of justice and technicality must bend to cause of Justice inasmuch as Ends of law is Justice”.

Accused appellant can be fastened for offence of section 376 of the Penal Code and conviction under section 4(c) of The Ordinance of 1983 can be altered to one of section 376 of the Penal Code.
In the said case conviction under section 4 (c) of the Ordinace of 1983 was altered to one of section 376 of the Penal Code. Asiman Begum vs State, (Supra) and State Vs Abul Kalam, (Supra) had been, also, discussed considered and meditated in Shibupada Acharjee vs State (supra).

In the event of sending the case either to Tribunal or Court of Sessions for fresh trial proceeding would be protracted which cannot be allowed in the interest of true dispensation of criminal Justice.
 
Since offence of murder is punishable under section 302 of Penal Code was carried to the door of convict appellant he can be very much convicted for offence of section 302 of the Penal Code and, as such, we convert the offence of section 11(ka) of the Ain of 2000 to offence of section 302 of Penal Code. Convict appellant, thus stands convicted for offence of section 302 of the code.
 
Legal debate stands solved in the following terms and language:
  1. Convict appellant can not be graced with a verdict of acquittal.
  2. Convict appellant can be convicted for the offence punishable under section 302 of the Penal Code
  3. Case is not required to be sent either to   
Tribunal or Court of Sessions for fresh trial.
 
What sentence is to be imposed upon convict-appellant—death or imprisonment for life? Sentencing discretion on the part of a Judge is the most difficult task to perform. There is no system or procedure in the Criminal Justice administration method or Rule to exercise such discretion. In sentencing process, two important factors come out which shall shape appropriate sentence a. Aggravating factor, and b. Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and Court responded to the society’s cry for justice. Under section 302 of The Code, though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice.
 
Convict-appellant 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.
  1. On the premises of the foregoing discussion, the following orders are passed: Death Reference No. 32 of 2008 is rejected.
  2. Jail Appeal No. 361 of 2008 and Criminal Appeal No. 1741 of 2008 stand dismissed with modification of conviction and sentence. Judgment of conviction and sentence dated 18th March, 2008 passed by Nari-O-Shishu Nirjatan Daman Bishesh Adalat (Tribunal), Dinajpur in Nari-O-Shishu Case No. 246 of 2004 is modified in the epithet that convict-appellant is found guilty of the offence of section 302 of Penal Code and not for an offence of section 11(ka) of Nari-O-Shishu Nirjatan Daman Ain, 2000 and conviction for offence of section 11(ka) of The Ain of 2000 is altered to one of section 302 of The Penal Code and death sentence is altered to one of sentence of imprisonment for life and he is to pay a fine of Tk. 10,000 and in default of payment of fine to undergo rigorous imprisonment for six (6) months more. 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, Dinajpur. The Jail Superintendent, Dinajpur is directed to shift the condemned prisoner from death cell into the common accommodation for the convict-appellant. 
Lower Court record be sent down as immediate as possible.

Ed.