The New Nation - Internet Edition

High Court Division

(Criminal Appellate Jurisdiction)

Md Abdul Matin J

Md Abdul Hye J

Shahjahan Ali (Md) @ Md Shahjahan

ttttttConvict-Appellant

vs

State …………Respondent.

Judgment

February 26th, 2007

Code of Criminal Procedure (V of 1898)

Section 164

From the confession it transpires that accused Shahjahan made confessional statement being fully aware of its consequence and his repentance led him to make the confession as he killed the mother of his friend. Admittedly, police did not arrest accused Shahjahan who voluntarily surrendered and made the confession at the earliest possible time. During recording of the confessional statement accused Shahjahan did not complain of any torture by the police while in custody and the Magistrate also did not find any marks of assault on the person of accused Shahjahan and no such endorsement is found in Exhibit 6, confession.

In all consideration, Exhibit 6 confessional statement is proved to be inculpatory, voluntary and true and this confession can be the sole basis of conviction as per decision reported in 29 DLR (SC) 271. According to the confession, accused appellant Shahjahan brutally killed victim Sharifa Khatun with Chapati blows in the night following 4-8-2003. As per admission and showing of accused Shahjahan, police recovered the said Chapati from the ditch of Hamid Mia and Chapati has been marked Article Exhibit IV duly identified by PW 6. ………….( II)

Penal Code (XLV of 1860)

Section 302

Weapon, namely Chapati, used in the commission of murder of Sharifa, was also recovered from a ditch as per showing of accused appellant Shahjahan. So, victim Sharifa having been seen last with accused Shahjahan, recovery of Chapati and inculpatory confession made out an impregnable chain of evidence of murder committed by accused-appellant. ……………….( 13)

State vs Khasru 43 DLR (AD) 182; Shamsuddin Sarker vs State 11 DLR (SC) 365; Eradu and others vs State of Hyderabad PLD 1956 SC 286; Ismail Sarker and others vs State 33 DLR 320; Golam Rasul vs Emperor

107 IC 1928 774; AIR 1984 (SC) 759 ref.

Md Khurshid Alam Khan, Advocate-For the Convict-Appellant.

Moklesur Rahman Zahid. Deputy Attorney-General-For the State-Respondent.

Judgment

Md Abdul Hye J: This appeal is directed against the judgment and order of conviction and sentence dated 22-3-2005 passed by learned Sessions Judge, Kishoreganj convicting the accused-appellant under section 302 of the Panal Code and sentencing him to suffer RI for life along with fine of Taka 5000 in default to suffer RI for further 5(five) months in Sessions Case No. 272 of 2003.

2. Prosecution case, in brief, is that in the night following 4-8-2003 at about 2-30 hours victim Sharifa Khatun along with her son Al-Amin went out of the house for searching her eldest son Kamruzzaman Rana who was not found. They went to the residence of Shahjahan, friend of Rana, told Shahjahan that Rana is not traceable and thereafter Sharifa Khatun, Al-Amin and Shahjahan went to different places of the locality for searching Rana. When they reached at crossing point of Nagua Shamoly Road, victim Sharifa Khatun told her son Al-Amin to go back home. Then Sharifa Khatun and Shahjahan searched for Rana. Meanwhile on reaching home Al-Amin found his brother Rana present in the house and Al-Amin told Rana that his mother was searching him. Then Rana went to search his mother but came back in vain without getting her and had his sleep keeping the door open. On the following morning at 7-30 AM one Mannaf informed that a dead body of a woman was lying in front of the house of Taher Shaheb. hiformant's daughter Sadia Sultana went to that place and saw the dead body of her mother Sharifa Khatun with multiple injuries. Nuruzzaman Mia, husband of deceased victim Sharifa Khatun, lodged FIR with Kishoreganj Sadar Police Station, regarding the occurrence after hearing the same from his sons.

3. Police after investigation submitted charge sheet against accused Md Shahjahan Ali under section 302 of the Penal Code and case record was sent to the Court of Sessions Judge, Kishoreganj, for trial.

4. Sessions Judge, Kishoreganj, framed charge against accused Md Shahjahan Ali in his presence under section 302 of the Penal Code, held trial and found him guilty and sentenced him to suffer imprisonment for life with fine by judgment dated 22-3-2005.

5. Being aggrieved by impugned judgment dated 22-3-2005 accused Md Shahjahan Ali lodged an appeal.

6. Mr Md Khurshid Alam Khan. learned Advocate for convict appellant, submits that the impugned judgment of conviction and sentence is not in accordance with the provision of section 367 of the Code of Criminal, Procedure and, as such, the same is liable to be set aside. Accused-appellant made a confessional statement out of police inducement and threat, and, as such, the same cannot be treated as voluntary and true. Moreover, in recording the confessional statement, the mandatory provision of sub-section 3 of section 164 of the Code of Criminal Procedure has not been complied with and, as such, 'the said confessional statement is not admissible in evidence. Prolonged detention of accused-appellant in Thana Hajat before recording his confession without any order of remand from the competent Court of Magistrate, renders the confession totally unacceptable. He further submits that the alleged offence does not come within the purview of ingredients of section 302 of the Penal Code and, as such, the appeal should be allowed and the accused-appellant be acquitted as the impugned judgment is not legal and proper; In this connection, learned Advocate, has cited some decisions on "Last Seen" reported in 43 DLR (AD) 182 (State vs Khasru), 11 DLR (SC) 365 (Shamsuddin Sarker vs State). PLD 1.1956 SC 286 (Eradu and others vs State of Hyderabad) 33 DLR 320 (Ismail Sarker and others vs State)107 IC 1928 774 (Golam Rasul vs Emperor) as well as of offence under section 304 Part 11of the Penal Code reported in AIR 1984 (SC) 759.

7. Mr Moklesur Rahman Zahid, learned Deputy Attorney-General for the State-respondent submits that victim Sharifa Khatun was last seen with accused-appellant Shahjahan Ali who killed her with Chapati blows and as per admission of accused Shahjahan that Chapati was recovered from a ditch, as, shown by him. Besides that accused, Shahjahan made a confessional statement before the Magistrate admitting that he murdered Sharifa Khatun. He further submits that the learned Sessions Judge rightly passed the conviction and sentence which call for no interference and, as such, the appeal should be dismissed. In this connection learned Deputy Attorney-General has referred to some decisions reported in 43 DLR (SC) 182. 13 DLR 431. AIR 1999 (SC) 1406 (Delhi), 1BLC 185, AIR 1946 Nagpur 119 and 29 DLR (SC) 271.

8. We have perused the paper books, LC record including FIR, charge sheet, deposition of PW, confessional statement of accused Shahjahan, impugned judgment dated 22-3-2005, memo of appeal with grounds stated therein and heard the learned Advocate for the convict-appellant as well as the learned Deputy Attorney-General for the State. To establish the charge of murder. prosecution examined 18 witnesses but the defence examined none. To appreciate the impugned judgment followed by rigorous imprisonment for life, let us scrutinise the testimony of PWs.

9. PW 1 Nuruzzaman Mia is the informant of the case as well as husband of deceased victim Sharifa Khatun and he proved his FIR marked Exhibit 1. After lodging FIR PW I came to know that accused Shahjahan killed his wife and as per his admission and showing police recovered a Chapati from the ditch of Hamid Mia. In reply to cross examination, PW 1 says that he did not see the occurrence but after lodging FIR accused Shahjahan himself went to thana and admitted the commission of murder. PW 2. PW 3, PW 4, PW 5 of heard the occurrence, saw the dead body of Sharifa Khatun with multiple injuries and also heard that accused Shahjuhan admitted the commission of murder of Sharifa Khatun by making confessional statement. PW 6 Rafique Mia is a witness of seizure list Exhibit 4 for the recovered Chapati marked Article Exhibit IV and he co-operated the police in the recovery of Chapati from a ditch as shown by accused Shahjahan. PW 6 also identified accused Shahjahan in the dock along with seized Chapati. PW 7 Al-Amin is the son of deceased victim Sharifa Khatun. In his examination-in-chief, Al-Amin says that he along with his mother Sharifa went to the house or accused Shahjahan to search his elder brother Rana and therefrom Shahjahan, Al-Amin with his mother Sharifa Khatun went out to search Rana. When they reached at the crossing of three roads by the north-east side of' house of accused Shahjahan, Sharifa Khatun told Al-Amin to go back home and accordingly, PW 7 Al-Amin went back to his house leaving his mother Sharifa Khatun with accused Shahjahan. On coming back Al-Amin saw his brother Rana present in the house and told him that his mother Sharifa Khatun with accused Shahjahan are searching him. PW 7 being tired had his sleep and his brother Rana went to search his mother but could not find her. On the following morning PW 7 with his family members saw the dead body of his mother with injury lying in front of residence of Taher Shaheb. PW 7 called his father who lodged FIR regarding the occurrence of murder and police recovered a Chapati from the ditch of Abdul Hamid as per showing of accused Shahjahan who made a confessional statement before the Magistrate to the effect that he murdered victim Sharifa Khatun with Chapati blows. In his cross-examination PW 7 remained unshaken and disclosed that accused Shahjahan himself surrendered to the police, PW 8 Kamruzzaman Raria is the eldest son of deceased victim Sharifa Khatun and he corroborated his brother PW 7. PW 9. PW 10 and PW 11 are the witnesses of seizure list of Chapati which was recovered as shown by accused Shahjahan. PW 12 is a daughter of victim Sharifa Khatun and she also corroborated PW 7 Al-Amin. PWs 13 and 14 are tendered and the defence declined to cross-examine PW 13. In reply to cross-examination, PW 14 admits that her brother Rana had friendship with the accused before the occurrence. PW 15 constable No. 557 Mahtabuddin brought the dead body of Sharifa Khatun to Kishoreganj Sadar Hospital Morgue for Post Mortem, PW 16 Magistrate Md Anisuzzaman recorded the confessional statement of accused Shahjahan after observing all the formalities of law and the said confessional statement is marked Exhibit 6 while the signature of magistrate therein is marked Exhibit 6/1 and that of accused is marked Exhibit 6(a). In reply to cross examination, PW 16 says that he put 5 questions to the accused, disclosed his identity as Magistrate, cautioned the accused about the consequence of making confession and gave him 3 hours' time to think before making confession and thereafter accused Shahjahan voluntarily made the confession without any inducement. PW 17 Doctor ABM Abdul Latif held the post-mortem of dead body of Sharifa Khatun and found injuries caused by heavy sharp cutting weapon like chapati as shown to him by the learned defence lawyer. In his opinion. death of victim Sharifa Khatun was due to haemorrhage and shock as a result of injuries which were ante mortem and homicidal in nature and the post mortem report is marked Exhibit 7 while, the signature of PW 17 therein is marked Exhibit 7/1. PW 18 SI Munir Hossain went to the place of occurrence, made the inquest of dead body of Sharifa Khatun, prepared the sketch map with index of place of occurrence, collected the alamats, recorded the statement of witnesses under section 161 of the Code of Criminal Procedure, arrested accused Shahjahan who voluntarily surrendered, recovered one chapati as shown by accused Shahjahan as well as used in the commission of murder, sent the accused to the Magistrate for recording-his confessional statement and thereafter submitted charge sheet against accused Shahjahan Ali under section 302 of the Penal Code. In cross examination. PW 18 admits that he sent the accused in the Court after 19 hours of arrest and he did not seek any permission of Magistrate as to taking the accused to ditch for recovery of chapati. It. appears that the accused was produced in the Court within 24 hours of surrender and recovery of chapati by the accused from a ditch without the permission of Magistrate, may be irregular but not illegal. It is suggested that the accused was compelled to make confessional statement by' keeping him in police custody, that no chapati was recovered .as .per showing of accused Shahjahan and that no proper investigation of the case took place which PW 18 denies. We also do not find any defect in the investigation which is done properly. After examining the PWs accused Shahjahan Ali was duly examined under section 342 of the Code of Criminal Procedure but neither he adduced any DW nor submitted any written statement in support of his defence.

10. It appears that PW 7 Al-Amin, his mother Sharifa Khatun along with accused Shahjahan went to search Rana, elder brother of Al-Amin and in midway Al-Amin went back home leaving behind his mother with accused Shahjahan and, accordingly, victim Sharifa Khatun was lastly seen with accused Shahjahan before her disappearance. Defence has no suggestion that victim Sharifa Khatun was seen with some other person other than accused Shahjahan. Let us now go through the confessional statement of accused Shahjahan wherein he admitted the commission of murder of victim Sharifa Khatun and the said confession is quoted below in verbatim:

ÒAvwg Rvbvw”Q †h, ivbv Avgvi nvB¯‹zj Rxe‡bi eÜz| †mB †_‡K Avgiv GKmv‡_ Pjv‡div Kwi| MZ 4-8-2003wLªt ZvwiL w`evMZ ivZ Abygvb 1.30Uvq ivbvi gv Zvi †g‡Rv †Q‡j Avj Avwgb‡K mv‡_ wb‡q Avgv‡`i b¸qvi evmvq Av‡m| evev `iRv Ly‡j †`q| ZLb ivbvi gv e‡j ivbv‡K Ly‡R cv‡”Qbv| ZLb Avwg ivbvi gvi Aby‡iv‡a Zv‡K mv‡_ wb‡q Avwg ivbv‡K LyR‡Z †ei nB| †Kvg‡i AvbygvwbK 3 †KwR IR‡bi GKwU PvcvwZ †bB| wUUzi dv‡g© mvg‡b †_‡K Avj Avwgb evmvq P‡j hvq| Avwg ivbvi gv‡K wb‡q b¸qvi 1g †gv‡o Kvgvj wgqvi evmvq ivbv‡K LyR‡Z hvB| ivbv‡`i evmv Avgv‡`i evmv †_‡K 200 MR `y‡i| A‡bK †LvRv LywRi ci ivbv‡K bv †c‡q AvbygvwbK ivZ 3.00 Uvi w`‡K Avgv‡`i evmvi w`‡K wdiwQjvg| k¨vgjxMwj‡Z Xy‡K ivbvi gv D‡ËwRZ n‡q Avgv‡K e‡j Ò‡Zvi mv‡_ P‡jB Avgvi †Q‡ji Lvivc n‡q‡QÓ| G K_v e‡jB ivbvi gv Avgvi Mv‡j `y‡Uv Pi gv‡i| Pi †L‡q Avwg D‡ËwRZ n‡q cwo Ges Avgvi gv_vq i³ D‡V hvq| Avwg Zrbvr †Kvgi †_‡K PvcvwZ †ei K‡i Dchy©cwi 5wU †Kvc gvwi| ZLb ivbvi gv NuUbv¯’‡jB g„Zz¨ eib K‡ib| ZLb Avwg †mLvb †_‡K G‡m wUUz wgqvi dv‡g©i cv‡k cvMv‡i PvcvwZ †d‡j w`‡q †mvRv evwo P‡j Avwm| A‡bK ivZ nIqvq Avi G NuUbv †Kn †`‡L bvB| Avwg I Avi KvD‡K RvbvB bvq| c‡i Avwg evmvq Nywg‡q _v‡K| we‡e‡Ki Zvobvq MZKvj¨ mÜ¨vq †m”Qvq _vbvq AvZ¥mgc©b K‡i AvR †m”Qvq G Revbew›` w`jvg|Ó

11. From above confession it transpires that accused Shahjahan made confessional statement being fully aware of its consequence and his repentance led him to make the confession as he killed the mother of his friend. Admittedly, police did not arrest accused Shahjahan who voluntarily surrendered and made the confession at the earliest possible time. During recording of the confessional statement accused Shahjahan did not complain of any torture by the police while in custody and the Magistrate also did not find any marks of assault on the person of accused Shahjahan and no such endorsement is found in Exhibit 6, confession. In all consideration, Exhibit 6, confessional, statement is proved to be inculpatory, voluntary and true and this confession can be the "sole basis of conviction as per decision reported in 29 DLR (SC) 271. According to the confession, accused appellant Shahjahan brutally killed victim Sharifa Khatun with Chapati blows in the night following 4-8-2003. As per admission and showing of accused Shahjahan, police recovered the said Chapati from the ditch of Hamid Mia and Chapati has been marked Article Exhibit IV duly identified by PW 6.

12. Learned Advocate for convict-appellant submits that if the conviction is relied upon confessional statement of appellant, then the conviction cannot be under section 302 of the Penal Code, rather it will come under the purview of section 304, part II of the Penal Code. As per averment of confession, victim Sharifa Khatun slapped the accused appellant saying that Ò†Zvi mv‡_ P‡jB Avgvi †Q‡j Lvivc n‡q‡QÓ| and this sort of abuse is very much prevalent in our society. However, being furious in turn accused Shahjahan could also slap Sharifa Khatun but instead he took undue advantage of having a Chapati in his possession and killed Sharifa Khatun who had no weapon to resist the Chapati blows of accused. Evidently there was no fight, no such quarrel of accused-appellant with bare handed aged woman Sharifa Khatun who became the victim of cruel murder by the Chapati blows of accused appellant and, as such, question of right of self-defence does not arise at all. We find no ingredients of section 304 part II of the Penal Code and the decisions of cases cited by the learned Advocate, have no manner of application in the facts and circumstances of this case.

13. Accused Shahjahan admitted in his confession that in midway Al-Amin left for home and thereafter accused Shahjahan along with Sharifa Khatun searched for Rana and this fact has been corroborated by PW 7 AI-Amin. Weapon, namely Chapati, used in the commission of murder of Sharifa, was also recovered from a ditch as per showing of accused appellant Shahjahan. So, victim Snarifa having been seen last with accused Shahjahan, recovery of Chapati and inculpatory confession made out an impregnable chain of evidence of murder committed by accused appellant.

14. Charge of murder has been proved beyond all reasonable doubt and the learned Sessions Judge rightly found accused appellant Shahjahan Ali guilty under section 301 of the Penal Code and he is liable to be convicted thereunder. Consequently, the impugned judgment and order of conviction and sentence do not call for interference by this Court.

15. In the result, the appeal is dismissed and the impugned judgment and order of conviction and sentence dated 22-3-2005 is upheld and confirmed.

Send down the lower Court records at once along with a copy of the judgment.