The New Nation - Internet Edition

Appellate Division

(Criminal)

Md Ruhul Amin J

MM Ruhul Amin J

Md Tafazzul Islam J

Judgment

February 5th, 2007

Islamuddin (Md) @

Din Islam t. Petitioner

vs

State ………

…………..Respondent”

Code of Criminal Procedure (V of 1898) Section 164

Evidence Act (I of 1872)

Section 24

It is now the settled principle of law that judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker of the same. The High Court Division has rightly found the judicial confession of the condemned prisoner true and voluntary and considering the same, the extra judicial confession and, circumslances of the case, found the condemned prisoner guilty and accordingly imposed the sentence of death upon him. .. t. (8)

Code of Criminal Procedure (V of 1898) Section 376

The High Court Division considered the argument of the learned Counsel for the condemned prisoner that the condemned prisoner being a young man of 33 years, the ends of justice would be met if the sentence of imprisonment for life was awarded on him instead of death sentence. But the High Court Division opined that in the facts and circumstances of the case and the heinous nature of offence, the condemned prisoner deserved punishment as has been imposed upon him by the trial Court.

The High Court Division upon correct assessment of the materials on record accepted the death reference and dismissed the jail appeal. There is no cogent reason to interfere with the same. .. t. (9-10)

Sarwar Ahmed, Advocate-For the Petitioner.

Fahima Nazrin, Deputy Attorney-General-For the State.

Judgment

MM Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 27-7-2004. passed by a Division Bench of the High Court Division in Death Reference No. 31 of 2003 (heard with Jail Appeal No. 205 of 2003) accepting the death reference and dismissing the jail appeal.

2. The prosecution case, in brief, is that the informant 'PW 1 Md Gousuddin lodged FIR stating that deceased Md Abu Salem Shablu who was a student of Class-VI of local Darul Ulum Kowmi Madrasah, used to say his prayers regularly in the local mosque of the village. The condemned prisoner Md Islamuddin @ Din Islam, an employee of an Ice Cream Factory belonging to Abdul Gafur, also used to say his prayers in the same mosque. On 4-10-2002 at about 5-00 AM when the deceased was proceeding towards the mosque for saying Fazar prayer, the condemned prisoner in a preplanned way forcibly took him inside the Ice Cream Factory, Abdul Gafur, the owner of the Ice Cream Factory, found his factory under lock and key on the same date at about 6-00/6-30 AM and he called the condemned prisoner who used to stay inside the factory but did not get any response. Abdul Gafur then peeped through the window of the Ice Cream Factory and found his nephew deceased Md Abu Salem Shablu lying on the floor with bleeding injuries. On getting such information, the informant went to the place of occurrence and after breaking open the door, entered inside the Ice Cream Factory and found the dead body of the deceased with grievous injuries on his neck and also found wooden stick in the rectum of the deceased. The neck of deceased was tied with a napkin and the condemned prisoner was found missing from the Ice Cream Factory. The informant along with the villagers then started searching for the condemned prisoner Md Islamuddin alias Din Islam. Ultimately, they apprehended him from Maizgaon Railway Station under Fenchugonj Police Station. The condemned prisoner was then brought to the place of occurrence where he confessed his guilt of murdering the deceased in presence of witnesses present. The condemned prisoner was then handed over to the police. On the basis of the information received from the informant, GD Entry No. 110 dated 4-10-2002 was recorded and SI Rupok Kumar Saha went to the place of occurrence and prepared the inquest report on the dead body of the deceased and sent the same to the morgue for postmortem examination. He also seized alamats under proper seizure list. Subsequently SI Rupok Kumar Saha also took up investigation of the case. During investigation he also visited the place of occurrence, recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure. The condemned prisoner also made judicial confession, which was recorded by a competent Magistrate. On completion of investigation police submitted charge sheet.

3. The plea of the concerned prisoner is that he was innocent and he has been falsely implicated in this case.

4. We have heard the learned Advocate for the petitioner and perused the judgment of the High Court Division and other connected papers.

5. During trial the prosecution has examined as many as 24 witnesses and the defence did not examine any witness. Of them PW 1 Md Gousuddin the informant of the case provided the FIR Exhibit 1. He stated that the condemned prisoner killed the deceased. He also stated that one piece of wooden stick was found introduced into anus i.e. rectum of the deceased. He also stated that the condemned prisoner was found missing from the Ice Cream Factory where he used to stay and he was apprehended from Maizgaon Railway Station after the occurrence. He also stated that the deceased confessed his guilt of murdering the deceased in presence of the witnesses. PW 2 Billal Uddin also stated that the deceased was found inside the Ice Cream Factory with injuries at the neck. He also stated that the condemned prisoner was found missing from the Ice Cream Factory where he used to stay and was apprehended from Maizgaon Railway Station and he admitted guilt in his presence of the witnesses. PW 3 Shahab Uddin, PW 4 Ruhul Quddus PW 5 Abdul Jabbar, PW 6 Helal Uddin and PW 8 Md Abdul Gafur owner of the lee Cream Factory, PW 9 Asod Ali Member, PW 13 Abdul Ahad also stated that they saw the dead body of .the deceased inside the Ice Cream Factory and the condemned prisoner was missing and was apprehended from Maizgaon Railway Station and he confessed his guilt in their presence, PW 18 Shoaib Ahmed Khan is the Magistrate who recorded the confessional statement of the condemned prisoner Islam Uddin @ Din Islam.

He stated that he recorded the confessional statement, Exhibit-6, of the condemned prisoner after observing all formalities as required under sections 164 and, 364 of the Code of Criminal Procedure and, in his opinion, the confessional statement is true and voluntary. He further stated that the confessional statement after being recorded was read over to the condemned prisoner who after knowing the contents thereof put his LTI admitting the same to be correct PW 19 Constable Nil Moni Pal and PW 20 Constable Belayet Hossain carried the dead body of deceased to the morgue for post-mortem examination and identified the same before the Medical Officer on duty. PW 23 SI Rupok Kumar Saha is the Investigating Officer of the case PW 24 Dr SA Shahid of Forensic Medicine Department of Sylhet MAG Osmani Medical College Hospital held the post-mortem examination on the dead body of deceased and found one cut throat wound on the front of the neck measuring 6” x 2” x cervical vertebra with ante mortem clotted blood on the wound region including face. One wooden stick introduced into the anus. In his opinion, the death of the deceased was due to haemorrhage and shock as a result of cut throat which is ante mortem and homicidal in nature.

6. Thus it is clear that the prosecution witnesses who are inhabitants of the locality in one voice stated that the condemned prisoner made extra judicial confession in their presence that he killed the deceased. Coupled with this extra judicial confession, we have the judicial confession of the condemned prisoner recorded by PW 18 Shoaib Ahmed. For ready reference, let us reproduce below the confessional statement of condemned prisoner:

Avwg weMZ cÖvq 20 eQi KwigMÄ wQjvg| MZ wZb eQi hveZ †MvjvcMÄ _vbvi Pb`icyi MÖv‡g _vwK| Avwg Lvivc gvbyl wQjvg| MZ cÖvq `yeQi Av‡M Avgvi g‡b cwieZ©b Av‡m| kvejy bv‡g gv`ªvmvq covqv GKwU †Q‡j‡K Avwg Lye Av`i †mœn Ki‡Z _v‡K| Avgvi ¯¿x I †Q‡j mšÍvb bv _vKvq Avgvi Avq n‡Z wKQy UvKv kvejy‡K w`Zvg| Avwg GK wmR‡b ev`v‡gi e¨emv I Ab¨ wmR‡b AvBmµx‡gi e¨emv KiZvg| AvR †_‡K eQi Lv‡bK Av‡M ïwb Avgvi †mœ‡ni kvejy Lvivc †Q‡j‡`i mv‡Z wg‡k Lvivc c‡_ cv evov‡”Q| Avwg ïb‡Z cvB `yRb †Q‡j kvejy‡K ejrKvi K‡i| Avwg kvej~‡K wRÄvmv Ki‡j †m GKR‡bi mv‡_ Lvivc Kv‡Ri K_v ¯^xKvi K‡i Ab¨ R‡bi mv‡_ Lvivc Kv‡Ri K_v A¯^xKvi K‡i| Avgvi cwiwPZ kvnAvjg Rvbvq kvejy Zvi mv‡_ Lvivc Kv‡R wjß| kvn Avjvg AvBmµx‡gi d¨v±ix‡Z KvR KiZ Ges AvBmµx‡gi †jvf †`wL‡q Zvi mv‡_ Lvivc KvR KiZ| Avwg `yw`b NUbv cÖZ¨¶ K‡iwQ| GKw`b K¨v‡givq QweI Zz‡jwQ| kveyj‡K Lvivc KvR Kwi‡Z weiZ ivLvi †Póv K‡i e¨_© nB| Avwg Zv‡K gvivi wm×všÍ ‡bB| 4-10-2002 (A‡±vei, 4, 2002) Avwg dR‡ii bvgv‡Ri Rb¨ Ni †_‡K †ei nB| kvejy‡K, bvgv‡R †h‡Z †`wL| Zv‡K WvwK| †m Avgv‡K Pvqbv| Avwg Zv‡K bv‡K gy‡L a‡i Avgvi N‡i wb‡q Avwm| Zvi bvK w`qv i³ †ei nq| Avwg Zv‡K Lvivc KvR n‡Z weiZ _vKvi Rb¨ ewj| †m mvov kã †`q bv| cv‡k¦© Zvi gv‡qi kã ïwb| Zvi gv †Ui †c‡Z cv‡i †Q‡ji wPrKvi ïb‡Z cv‡i ZvB kvejy‡K AveviI gyL Kvco w`‡q †eu‡a †dwj Ges cvqLvbvi iv¯Ív w`‡q evu‡ki LyuwU XyKvB †m AÁvb n‡q c‡o| aviv‡jv `v w`‡q Zvi Mjv †K‡U †dwj| Avwg kvejy‡K †g‡i cvjv‡bvi †Póv Kwi ¯’vbxq †jvKRb gvBSMuvI †ij‡ókb †_‡K Avgv‡K AvUK K‡i cywjk †mvc`© K‡i|

7. It is true there is no eye-witnesses to the occurrence. The High Court Division it appears, considering the circumstantial evidence of the case, the extra- judicial confession and judicial confession of the condemned prisoner, found the condemned prisoner guilty. The High Court Division upon consideration found judicial confession of condemned prisoner to be true and voluntary. The judicial confession of the condemned prisoner was not retracted at any stage.

8. It is now the settled principle of law that judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker, of the same. The High Court Division as noticed earlier found the judicial confession of the condemned prisoner true and voluntary and, considering the same, the extra- judicial confession and circumstances of the case, found the condemned prisoner· guilty and accordingly, imposed the sentence of death upon him.

9. It further appears that the High Court Division also considered the argument of the learned Counsel for the condemned prisoner that the condemned prisoner being a young man of 33 years, the ends of justice would be met if the sentence of imprisonment for life was awarded on him instead of death sentence. But the High Court Division opined that in the facts and circumstances of the case and the heinous nature of offence, the condemned prisoner deserved punishment as has been imposed upon him by the trial Court.

10. In view of the discussion made above, we are of the view that the High Court Division upon correct assessment of the materials on record accepted the death reference and dismissed the jail appeal. There is no cogent reason to interfere with the same.

Accordingly, the jail petition is dismissed.