Case No: DEATH REFERENCE NO. 63 OF 2006
Judge: Syed Md. Ziaul Karim,
Court: High Court Division,,
Advocate: Mr. M.A. Mannan Mahon,,
Citation: 3 LNJ (2014) 737
Case Year: 2014
Appellant: The State
Respondent: Sujon Deb and others
Delivery Date: 2012-03-07
HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
Syed Md. Ziaul Karim, J
A.N.M. Bashir Ullah, J.
2.Salam alias Abdus Salam (absconding),
3.Kalam alias Sylheti Kalam alias Masum (absconding),
(In Death Reference No. 63 of 2006)
Sujon Deb ...Convict-appellant.
The State ...Respondent.
(In Criminal Appeal No. 3341 of 2006)
Sujon Deb ....Convict-appellant.
The State ...Respondent.
(In Jail Appeal No. 663 of 2006)
Sohel Khan ...Convict-appellant.
The State ...Respondent.
(In Criminal Appeal No. 3462 of 2006)
The State ....Respondent.
(In Criminal Appeal No. 3630 of 2006)
P.W.1 arrested accused Sohel and seized record player of the stolen micro-bus from his house. The micro-bus was sold at the instance of Afsar Uddin and Borhanuddin to accused Sentu. Later, it was recovered from the house of Mafizuddin shown by Sentu. The accused Suhel, Borhanuddin, Afsar and Sentu were found responsible for keeping the stolen micro-bus in their possession and its selling. Their confessions also indicate their complicity as to keeping and selling the micro-bus. Therefore, the offence against them under Section 411 was well proved. . . . (71)
Islam Uddin (Md.) alias Din Islam Vs. The State, 13 BLC (AD) 81; Abdur Rashid and others Vs. The State, 3 BLD 206; Amir Hossain Vs. The State, 6 BLD (AD) 193; Gouranga Chandra Paul Vs. The State, 59 DLR 17 and 29 DLR (SC) 27; Shajahan Ali (Md.) alias Md. Shahjahan Vs. The State, 59 DLR 396; Hazrat Ali and others Vs. The State, 44 DLR (AD) 51 and The State Vs. Abul Kalam Azad and others, 8 BLC 464 ref.
Mr. Md. Mahbub Ul Alam,A.A.G. and
Mr. Md. Osman Goni Khan, A.A.G.
(In Death Reference No. 63 of 2006)
(In Death Reference No. 63 of 2006)
(In Criminal Appeal No. 3341 of 2006)
(In Jail Appeal No. 663 of 2006)
(In Criminal Appeal No. 3462 of 2006)
(In Criminal Appeal No. 3630 of 2006)
Death Reference No. 63 of 2006
With Criminal Appeal No. 3341 of 2006
with Jail Appeal No. 663 of 2006
with Criminal Appeal No. 3462 of 2006
with Criminal Appeal No. 3630 of 2006
This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Judge of Druto Bichar Tribunal, Sylhet (briefly as Tribunal), for confirmation of death sentences of condemned-prisoners.
By the above appeals the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 13-07-2006 passed by learned Judge of Tribunal in Druto Bichar (Sessions) Case no. 15 of 2006.
- Convicting appellant Sujon Deb under Sections 302,34 of the Penal Code and sentencing him to death by hanging and also to pay a fine of Tk.5,000/=.
- Convicting appellants Sohel Khan and Borhanuddin under Sections 411, 34 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for three years and also to pay a fine of Tk.500/= each in default to suffer rigorous imprisonment for one month more. However, acquitted the accused Alam Ahmed. Condemned prisoners Salam and Kalam remained absconding since beginning, they were defended by the State defence lawyer. Accused Sani Ahmed Sentu being enlarged on bail remained absconding.
The prosecution case put in a nutshell are that on 03-01-2005 at 09:25 a.m. S.I. Khandaker Halim of Bahubal Police Station (P.W.1) made an inquiry on an information recorded in G.D.E. no. 76 dated 03-01-2005 and found that two unknown male dead-bodies were lying at the eastern side of Dhaka-Sylhet high-way in between Daulatpur and Jashpal village (briefly as P.O.). The bodies bore ligature marks on the neck. It was suspected that the death was caused by strangulation. Meanwhile at 10:25 a.m. Advocate Bashir Ahmed Dulal (P.W.3) of Hobigonj Court happened at the scene and identified the dead-bodies as Babul and Ashraf Ali, driver and helper respectively of his micro-bus no. Dhaka-Metro-N-12-1590. He (P.W.3) informed that on 02-01-2005 at 2:30 p.m. driver and helper went to Chunarughat from his village Nizgaon with a passenger trip but they did not return in time. He unsuccessfully searched them. On 03-01-2005 at 9:00 a.m. he received an information of dead-bodies lying at the P.O. The locals were whispering that they found at 4:30 p.m. Sujon of village Nizgaon with his accomplice were roaming who were suspected to commit the crime of murder. With these allegations the prosecution was launched by lodging a first information report (briefly as FIR) by S.I. Khandaker Halim (P.W.1) as informant which was recorded as Bahubal P.S. Case no. 03 date 03-01-2005 corresponding to G.R. no. 03 of 2005.
During investigation accused Sujon Deb, Borhanuddin, Afsaruddin alias Afsu, Sohel Khan, and Sani Ahmed Sentu made confessions before the learned Magistrate implicating theirselves along with accused Salam and Kalam.
The Police after investigation submitted charge sheet under Sections 302,379,34,411 of the Penal Code accusing accused.
Eventually accused were called upon to answer the charge under Sections 302,34,379 and 411 of the Penal Code to which the accused on dock pleaded not guilty and claimed to be tried.
In course of trial the prosecution in all examined twenty witnesses out of twenty nine charge sheeted witnesses. Two witnesses were tendered by the prosecution. The defence examined none.
After closure of prosecution case, the accused were examined under Section 342 of the Code, again they repeated their innocence and led no evidence in defence.
The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that confession of Sujon deb was extracted by putting him in torture.
After trial the accused were convicted as aforesaid holding that:
(b) The stolen micro-bus was recovered from the possession of accused;
(c) There are corroborative evidence against the accused.
The learned Deputy Attorney General appearing for the State supports the reference and submits that soon after the occurrence arrestees Sujon deb and four others made confessions. He adds that confessions are true and voluntary and there are corroborative evidence against the accused. He submits that PWs. 8 and 19 stated that accused Sujon deb disclosed the names of accused Kalam and Salam before them. So the Court below after considering the materials on record rightly convicted the accused which calls for no interference by this Court.
The learned Counsels appearing for the condemned-prisoners and appellants by their common contention seek to impeach the impugned judgment and order of conviction and sentence on five fold arguments:
Secondly: The deceaseds were killed by their negligence and fault. In support of their contention they refer the case of State Vs. Lalu Mia and others 39 DLR(AD)-117 held:
“confession- Exculpatory and inculpatory confessions- Extent to which exculpatory confession can be taken into consideration in judging truth or otherwise of the whole confession.
Where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.”
Thirdly: The condemned-prisoners had no intention to murder the deceased.
Fourthly: The Court below convicted the accused relying the confessions of co-accused which cannot be sustained in law
Fifthly: The Judgment and order of conviction and sentence based on misreading and non-consideration of the evidence on record which cannot be sustained in the eye of law.
In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.
P.W.1, S. I. Khandaker Halim. He is the informant. He deposed that on 03-01-2005 he was attached with Bahubal Police Station. On an information recorded in G.D. Entry no.76 dated 03-01-2005 that two unknown dead-bodies were lying at Dhaka-Sylhet high-way in Daulatpur –Jashpal village, he along with other Police personnel rushed to the scene and found two male dead-bodies which bore ligature marks on the neck. It was suspected they were strangulated to death. Meanwhile Advocate Bashir Ahmed Dulal rushed to the spot and identified the dead-bodies as driver Babul and helper Ashraf Ali of his micro-bus bearing no.Dhaka-metro-N-12-1590, who informed that on 02-01-2005 at 2:30 p.m. driver and helper went to Chunarughat from the village Nizghaon on trip but they did not return in time. Then on the following day he came to learn that two dead-bodies were lying in Dhaka-Sylhet high-way. The locals were whispering that accused Sujon deb along with his accomplice hired the micro-bus at 4:30 a.m. With these allegations he lodged ejahar. He proved the same as Exhbt. 1 and his signature on it as Exhbt. 1/1. He held inquest upon the cadavers and sent it to the morgue for autopsy.
As investigating officer he deposed that Md. Sekender Ali O/C recorded the case and filled up the form of FIR. He proved the same as Exhbt. 1(L) and signature of Sekander Ali as 1(L)/1. The case was entrusted to him for investigation. He visited the place of occurrence (briefly as P.O.) and prepared sketch map and index( Exhbts. 5, 6). On 03-01-2005 at 12:10 p.m. he seized some blood stained clothes(Exhbt. 3). He identified the alamats in the Court. On 04-01-2005 he arrested the accused Sujon deb from in-law’s house and recorded his statement under Section 161 of the Code. According to his confessions on 05-01-2005 at 4:15 p.m. he seized one Audio Cassette Player from the house of accused Sohel tenant of Abdus Salam of Fatullah Police Station and prepared seizure list( Exhbt.3(L)). It was given to the jimma of Dulal (Exhbt.2). On interrogation arrestee accused Sohel informed that on 03-01-2005 at 5:30 p.m. the accused Salam and Kalam came to him to sale the micro-bus. He sold it to accused Suny Ahmed Sentu with the assistance of accused Borhanuddin and Afsar. According to his confession he arrested accused Borhanuddin who informed that on 03-01-2005 at 6:00 am. accused Sohel came to sale the micro-bus. Then Borhanuddin went to the house of Sohel and fixed the price of the micro-bus at Tk.44,000/=. Accordingly Sohel, Afsaruddin, Sujon, Salam, Kalam handed over the micro-bus to Suny Ahmed Sentu at 19:00 hours in Sine-board area. He arrested Suny Ahmed Sentu from that area and according to his confession on 05-01-2005 at 9:55 a.m. the said micro-bus was recovered from the house of Mafizuddin shown by Sentu. He prepared seizure list( Exhbt. 3(M) and his signature on it 3(M)/1. Then it was given to the jimma of Bashir Ahmed Dulal. On 05-01-2005 at 20:30 hours he seized two nylon rope near the P.O. shown by accused Sujon and prepared seizure list (Exhbt. 3(M) and his signature on it 3(M)/3. He identified the alamats on dock. He arranged for recording confessions of accused Sujon deb, Sohel, Borhanuddin, Afsaruddin, and Sani Ahmed Sentu under Section 164 of the Code before the Magistrate on 06-01-2005. On 08-01-2005 at 13:25 a.m. he seized some wearing apparels and prepared seizure list 3(N) and his signature on it as Exhbt. 3(N)/3. He took photograph of deceased Babul and Ashraf Ali and kept it in the case docked. He recorded the statements of the witnesses under Section 161 of the Code of eight witnesses. On 08-01-2005 he handed over the case to his successor.
In cross-examination he stated that Sujon was arrested from Chitlachhara which is about 8/9 k.m. away from Bahubal. The accused Sujon was arrested from that village and brought to the Kamaichara Police camp. He denied the suggestion that no rope was seized at the instance of Sujon and recorded the confession by alluring him and did not investigate the case properly.
P.W. 2 Md. Abid, President of Hobigonj micro-bus samity. He deposed that the deceased Babul Mia and Ashraf were driver and helper of a micro-bus belonged to Advocate Bashir Ahmed Dulal. On 02-01-2005 at 3:00 p.m. he went to Chunarughat with passengers but did not return in the night. On the following day he heard that they were murdered and micro-bus was stolen away. He saw the dead-bodies which bore ligature marks on the neck. In his presence inquest was held and he signed in the inquest report.
In cross-examination he denied the suggestion that he was deposing falsely.
P.W. 3 Advocate Bashir Ahmed Dulal. He deposed that he is the owner of micro-bus bearing no. Dhaka-metro-N-12-1590, deceaseds Babul and Afsar Ali were driver and helper respectively of his micro-bus. On 02-01-2005 at 2:30 p.m. they went to Chunarughat but did not return on the same night. On 03-01-2005 at 9:00 a.m. he came to learn that two dead-bodies were lying at Daulatpur. He rushed there and identified them as his driver and helper. He also found the ligature marks on neck. Police came and the dead-bodies were sent to the morgue for autopsy. On 04-01-2005 accused Sujon was arrested and according to his statement accused Afsu, Suny, Salam, Alam were arrested and the micro-bus was recovered from their possession. Those accused confessed before the Magistrate. He took the micro-bus in his own jimma. He proved his jimma-nama as Exhbt. 2 and his signature on it as Exhbt.2/1.
In cross-examination he stated that deceased Babul was appointed as driver before one month ago. He denied the suggestion that he was deposing falsely.
P.W. 4 Abdul Hasim, Chairman. He deposed that on 03-01-2005 at 9/9:30 a.m. he came to know that two dead-bodies were lying at Dhaka-Sylhet high-way. He rushed there and found the bodies which bore ligature marks on neck. After sometime Police came. Advocate Bashir Ahmed Dulal identified them as his driver and helper. Police held inquest and he stood as witness. On 03-01-2005 at 12:10 a.m. Police seized some wearing apparels (Exhbts. 3, 3/1) and he identified alamats as material Exhbts. i-iv.
In cross- examination he stated that since 9:00 a.m. to 12:00 a.m. he was staying at the P.O. but nobody disclosed the name of any accused.
P.W. 5 Ramiz Ali, Chairman. He deposed that on 03-01-2005 at 10/10:30 a.m. he found two dead-bodies in between Daulatpur and Jashpal village. The locals were whispering that the dead-bodies were the driver and helper of a micro-bus belonged to Advocate Bashir Ahmed Dulal. He stood as one of the witness in inquest.
In cross-examination he stated that he had no knowledge about the murder.
P.W. 6 Khorshed Alam. He deposed that accused Sohel was his tenant. On 05-01-2005 at 4:15 a.m. Police seized one Audio Cassette Player from the house of Sohel and prepared seizure list and proved the same as Exhbt. 3(L) and his signature on it 3(L)/1.
In cross-examination he denied the suggestion that nothing was recovered from the house of Sohel in his presence.
P.W.7 Raju Miah and P.W. 10 Abdul Jalil were tendered by the prosecution and the defence declined to cross examination them.
P.W.8 Bulbul Chowdhury, a local witness. He deposed that on 05-01-2005 at 8:30 p.m. Police seized two pieces of nylon rope shown by accused Sujon deb and prepared seizure list (3M) and his signature on it Exhbt. (3M)/1. Accused Sujon deb stated that driver Babul and helper Ashraf Ali were strangulated to death by nylon rope and accused Kalam and Salam sold the micro-bus in Dhaka. He identified accused Sujon on dock.
In cross-examination he denied the suggestion that in his presence no alamats were seized and Sujon did not admit his guilt.
P.W 9 C-Musabbir Hossain. He deposed that on 03-01-2005 he carried the dead-bodies of the deceaseds to the morgue and identified it to the doctor. On 08-01-2005 S.I. Khandaker Halim seized some wearing apparels (Exhbt. 3L) and his signature on it Exhbt. 3(N)1z
The defence declined to cross-examine him.
P.W. 11 Dr. Md. Abdullah. He deposed that on 03-01-2005 he was attached with Hobigonj Modern sadar hospital as R.M.O. He held autopsy upon the cadaver of Babul and found the following injuries:
2. Multiple black spot on neck.
On dissection muscle layers of neck contained clotted blood, trachea found fractured and congested. Both lungs highly congested. Liver, spleen, kidney also congested.
In our opinion death was due to asphyxia resulting from strangulation which were ante mortem and homicidal in nature.”
On the same day he also held inquest upon the cadaver of Ashab Ali and found the following injuries:
On dissection clotted blood found in muscle layers of neck. Trachea depressed and its lumen contained clotted blood. Both lungs highly congested. Liver spleen, kidney congested.
In our opinion death was due to asphyxia resulting from strangulation which was ante mortem and homicidal in nature.”
P.W.12 Parimol Singh, Magistrate, first Class. He deposed that on 06-01-2005 he recorded confessions under Section 164 of the Code of accused Sujon deb, Sohel Khan, Borhanuddin, Afsaruddin alias Afsu, Suny Ahmed Sentu after complying of legal formalities. He proved the same as Exhbts. 4, 4(L), 4(M), 4(N) and 4(O). The accused did not complain anything to him.
In cross-examination he denied the suggestion that confessions were not true and voluntary and did not note the marks of injuries.
P.W. 13 S.I. Abdur Rahman Biswas. He deposed that on 05-01-2005 on the requisition of S.I. Khandaker Halim and direction by the O/C he recovered the micro-bus from the house of Mofizuddin shown by accused Sentu and Alam. Later, he inquired about the address of the accused.
In cross-examination he denied the suggestion that he had no knowledge about the recovery of micro-bus was recovered.
P.W. 14 S.I. Siddiqur Rahman, P.W. 15 A.S.I. Delwar Hossain, P.W. 16 A.S.I. Alamgir Hossain, P.W.20 S.I. Hekmot Ali, P.W. 21 A.S.I. Md. Hanif, they deposed about collection of P.C. & P.R. of accused Sujon, Salam, Kalam, Ashrafuddin, Sohel, Borhanuddin and Sentu and submitted respective report.
P.W.17 Munsor Ahmed, a local witness. He deposed that on 03-01-2005 at 9:00 a.m. he heard that two unknown dead-bodies were lying at the high-way in between Daulatpur-Jashpal village. He rushed there. The Police held inquest and he stood as one of the witness.
In cross-examination he stated that he came to know about the name of the deceased later in the news-paper.
P.W. 18 Bachu Miah, a local witness. He deposed that on 03-01-2005 at 8:00 a.m. he found two dead-bodies on the high-way and heard that those were driver Babul and helper Ashraf Ali of micro-bus was belonged to Advocate Bashir Ahmed Dulal.
In cross-examination he stated that he has a shop at Mirpur Bazar.
P.W. 19 Jitu Miah, a local witness. He deposed that on 05-01-2005 at 10:30 p.m. Police seized two rope and prepared seizure list Exhbt. 3(M) and signed in the seizure list Exhbt. 3( M)/2.
Accused Sujon stated to him that he along with Salam and Kalam strangulated driver and helper to death.
He was declared hostile by the prosecution.
In cross-examination by the prosecution he denied the suggestion that micro-bus was seized shown by accused Sujon and deposing falsely.
P.W. 22, Inspector, Subas Chandra Saha. He deposed that on 29-04-2005 he took over investigation and after scrutiny of the case docked he submitted charge sheet under Sections 302, 379,34 and 411 of the Penal Code accusing accused Sujon deb, Sohel Khan, Afsaruddin alias Afsu, Borhanuddin, Suny Ahmed Sentu, Alam Ahmed, Salam and Kalam alias Sylheti Kalam.
In cross-examination he denied the suggestion that by perfunctory investigation he submitted the charge sheet.
These are all of the evidence on record adduced by the prosecution to prove the charge.
It is indisputable that slain Babul and Ashab Ali were lynched.
On going to the materials on record it transpires that prosecution in all examined twenty witnesses out of twenty nine charge sheeted witnesses. Of whom, P.W.1 is the informant and partly investigated the case, P.W. 2 is a local micro-bus Samity President and heard the occurrence of murder. P.W. 3 owner of the micro-bus. P.Ws.4 and 6 were the seizure list witnesses. P.Ws. 5, 17 are the witnesses of inquest. P.Ws. 7 and 10 were tendered by the prosecution. P.Ws. 8 and 19 are the local witnesses who stated that accused Sujon along with Kalam, Salam murdered the deceaseds. P.W. 9 carried the dead-bodies to morgue. P.W.11 held inquest upon the cadavers. P.W.12 recorded the confessions of accused (Exhbts.4, 4(L), 4(M), 4(N),4(O)z P.Ws. 14, 15, 16, 20 and 21 are the Police personnel who inquired the P.C. & PR of accused. P.W.22 lastly investigated the case and submitted charge sheet.
We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
d) There must be clear and unequivocal proof of the corpus delicit.
e) The hypothesis of delinquency should be consistent with all the facts proved.
Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.
It is true that there is no eye witness to the occurrence but the case is absolutely rest upon the confessions of accused Sujon, Borhan, Afsar uddin, Sohel Khan and Sani Ahmed Sentu [Exhbts.4,4(L),4(M), 4(N),4(O)].
The material excerpt of confession of Sujon deb( Exhbt. 4) reads as hereunder:
সুজন দেব ।
২য় শ্রণীর ম্যাজিষ্ট্রট
কগনিজন্স কোর্ট ন০১, হবিগজ্ঞ /”
We find that the occurrence took place on the night following 02-01-2005. The dead-bodies of deceaseds were found at the P.O. on 03-01-2005 in the morning. On the same day at 10:35 a.m. FIR was lodged by P.W.1. He (P.W.1) categorically stated that on 04-01-2005 he arrested accused Sujon from his in-law’s house. According to his confession he arrested accused Sohel on 05-01-2005 and seized one Audio Cassette player (Exhbt. 3(L) which was affixed to the micro-bus. He also stated that the deceaseds were identified by Advocate Bashir Ahmed Dulal (P.W.3) as his driver Babul and helper Ashab Ali of his micro-bus bearing no. Dhaka-metro N-12-1590 which was ultimately given to the jimma of P.W. 3. Later, accused Sohel was interrogated who informed to him that on 03-01-2005 at 5:30 p.m. accused Sujon and his accomplice Salam and Sylheti Kalam came to him to sale the stolen micro-bus. Later, with the help of accused Borhan and Afsar he managed to sale it to Suny Ahmed Sentu at the price of Tk.44,000/-. The stolen micro-bus was handed over to Suny in Sineboard area. Subsequently he arrested accused Sentu and at his showing the micro-bus was recovered from the house of Mofizuddin. Thereafter on 06-01-2005 the accused Sujon made confession (Exhbt.4), the contents of it is absolutely corroborative with the evidence of P.W.1 and such confession was recorded by P.W.12 after complying all legal formalities laid down in Section 364 of the Code. The accused Sujon deb did not complain regarding torture or coercion or allurement. But at the later stage of trial accused Sujon deb raised a plea that by alluring him such confession was extracted. The plea raised by him has no leg to stand and as such the defence having not deliberately led any evidence, in support of his pseudo plea, so it recoils against him. Moreover PWs. 2, 4-6, 8, 11, 17, 18, 19 were examined to corroborate the evidence of above witnesses. They categor-ically corroborated their evidence. However all the PWs. were extensively cross examined by the defence but nothing could be elucidated to shake their credibility in any manner whatso-ever. Therefore, such pseudo plea should be left out of consideration.
On critical analysis of the evidence on record along with the confession of accused Sujon deb we find that at the instance of Salam he ( Sujon deb) took over the seat of the driver of micro-bus and drived the car and at night he reached to his in-laws house wherein they took meal allowing time to reach Kalam to there. Thereafter they started to their destination. In view of such facts we hold that the confession of Sujon deb is true, voluntary and inculpatory voluntary in nature.
It further appears to us that above confessing accused implicated himself in commission of murdering. The materials on record shows that his confession was shown as voluntary and inculpatory in nature. So it is well established that confessional statement if found inculpatory in nature and also true and voluntary it can be used against its maker and conviction can solely be based on it without any further corroborative evidence.
In the instant case the confession made by accused Sujon deb (Exhbt.4) was not only inculpatory in nature, but also true and voluntary and as such the Tribunal very rightly based solely on the confession and correctly convicted and sentenced the above accused by the impugned judgment and order, having duly found him guilty for the offence committed under Sections 302, 34 of the Penal Code.
In the case of Islam Uddin (Md.) alias Din Islam Vs. The State 13 BLC (AD)81 held:
Similar views were taken in the cases of Abdur Rashid and others Vs. The State 3 BLD 206, Amir Hossain Vs. The State 6 BLD (AD)193, Gouranga Chandra Paul Vs. The State 59 DLR 17, 29 DLR(SC)27, Shajahan Ali (Md.) alias Md. Shahjahan Vs. The State 59 DLR 396, Hazrat Ali and others Vs. The State 44 DLR (AD) 51, The State Vs. Abul Kalam Azad and others 8 BLC 464. Therefore we hold that the Court below rightly convicted the condemned prisoner Sujon deb after considering the evidence on record.
The complicity of the accused Sujon deb was also corroborated by P.Ws. 8 and 19 who categorically stated that accused Sujon deb stated in their presence that he along with accused Salam and Kalam strangulated the deceaseds to death.
It is true that confessions of co-accused is not a substantive peace of evidence against other co-accused who did not confess but in this case it appears to us that soon-after the occurrence the accused Salam and Kalam remained absconding. After occurrence accused Sujon made confession on 06-01-2005 disclosing the complicity of accused Salam and Kalam. So those accused had responsi-bilities to discharge their duties and explain their position towards the occurrence but they did not do so.
Abscondence of an accused is an incriminating circumstances connecting him in the offence and conduct of a person in abscondence after commission of crime is an evidence to show that he is concerned in the offence (Vide PLD 1965 Lah. 656). Therefore, anything, which tends to explain his conduct and furnishes a motive other than a guilty conscience, will be relevant under the Evidence Act. Failure to explain reason for absconding after occurrence favours prosecution (39 DLR 437). Abscondence of accused is a relevant fact. Unless accused explain his conduct, abscondence may indicate guilt of accused (33 DLR 274). Where accused absconded immediately after occurrence and remained out of reach of hand of law for more than years without showing any convincing reason for his absence, it would be an important factor going against absconder accused (AIR-1998 SC-107). Abscondence immediately after incident and trial in absentia and abscondence till today is a strong incriminating circumstances while can be considered sufficient corroboration of his participation in commission of crime (11 BLT 155).
Therefore, we hold that accused Salam and Kalam are squarely responsible for committing the murder of deceaseds with Sujon deb.
The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature cannot be reduced as a set formula (40 DLR 58).
The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.
Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straightforward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth( 40 DLR 58).
On appraisal of the evidence on record we find that P.W.1 arrested accused Sohel and seized record player of the stolen micro-bus from his house. The micro-bus was sold at the instance of Afsar Uddin and Borhanuddin to accused Sentu. Later, it was recovered from the house of Mafizuddin shown by Sentu. The accused Suhel, Borhanuddin, Afsar and Sentu were found responsible for keeping the stolen micro-bus in their possession and its selling. Their confessions also indicate their complicity as to keeping and selling the micro-bus. Therefore, the offence against them under Section 411 was well proved.
In view of such facts, the evidence regarding taking away, micro-bus, murdering the deceaseds and recovery of the micro-bus from the accused are consistent, uniform and corroborative with each other with all materials particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to dispose falsely against them. The defence extensively cross-examined them but nothing could be elucidated to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility. Therefore, we hold that the complicity of the accused in murdering the deceaseds and recovery of stolen micro-bus from their possession are well proved by convincing and unimpeachable evidence.
Moreover, the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So the submissions advance by the learned Deputy Attorney General prevails and appears to have a good deals of force. On the contrary we failed to discover any merit in the submissions advanced by the learned Counsel for the defence.
In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned judgment and order of conviction and sentence suffers from no legal infirmities. However as to the sentence the learned Advocates for the condemned prisoners submits that there was no premediation for murder so the sentence of death should be committed. Regards being had to the facts and circumstances of the case we are of the view that the sentence of imprisonment for life will meet the ends of justice instead of death.
In the result:-
(b) The impugned Judgment and order of conviction and sentence dated 13-07-2006 passed by learned Judge of Tribunal, in Druto Bichar (Sessions) Case No. 15 of 2006 is hereby maintained with a modific-ation of sentence of condemned-prisoners to imprisonment for life instead of death under Sections 302,34 of the Penal Code and the same in respect of appellants Sohel Khan, and Borhanuddin is maintained.
(b) Accordingly Criminal appeal no. 3341 of 2006 and Jail appeal no. 663 of 2006 are dismissed with a modification of sentence in the above terms.
(c) Criminal appeal no. 3462 of 2006 and 3630 of 2006 are dismissed. The convicts Sohel and Borhanuddin are directed to surrender to their respective bail bond within fifteen days from the date of receipt of this order to serve out the remaining part of sentence.
d) The learned Judge of the Court below will take appropriate step to secure the arrest of absconding condemned-prisoners Salam and Kalam and appellants Shohel Khan and Borhanuddin and commit them to jail to serve out their sentence.
The Office is directed to send down the records at once.