Appellate Division
(Criminal)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Azizul Haque Bacchu (Md)
…………………………………..Petitioner
vs
State…………………..Respondent
Judgment
February 25th, 2013.
Code of Criminal Procedure (V of 1898)
Section 374
In view of the gruesomeness of the attack upon two very young, innocent and helpless children and noting of the ruthlessness of the attack and the callous disregard of the condemned prisoner for human life, no compunction to commute the sentence of death awarded by the trial Court which was confirmed by the High Court Division. .. …. (13)
Helal Uddin Mollah, Advocate-For the Petitioner.
Md Selim, Deputy Attorney-General-For Respondent.
Judgment
Md Imman Ali J: This jail petition for leave to appeal at the instance of the condemned prisoner-petitioner Md Azizul Haque Bacchu is directed against the judgment and order dated 10-1-2011 passed by the High Court Division in Death Reference No. 169 of 2005, which was heard along with Jail Appeal No. 1429 of 2005 accepting the reference and dismissing the jail appeal.
2. The prosecution case, in brief, is that the condemned-prisoner-petitioner Azizul Huq Bacchu started living in a house as a monthly tenant for 2/3 years before the date of occurrence and he used to run his fertilizer business there-from. The informant proposed to give the daughter of his brother-in-law in marriage to the condemned-prisoner-petitioner, but he did not agree, rather he wanted to marry the informant’s daughter Pakhi Khatun alias Chandni who was aged about 13 years. Since they had refused, his proposal, he became annoyed. On 27-2-2005 while the informant went to have dinner in a different village at about 20-00 hours, he came to know from co-villager Royezuddin that condemned-prisoner-petitioner Azizul Hoque went inside the room and killed his two daughters namely Pakhi Khatoon and Sumaya Khatoon aged about 12 years by striking indiscriminately with a knife. His wife seeing the occurrence raised hue and cry and then Md Sukur Ali, Sahidul Islam, another Sahidul Islam, Md Azat and others came there and saw the condemned-prisoner-petitioner Azizul Hoque in the room with the knife in his hand. They locked the door from outside. Local people informed the Police Station and the police came to the place of occurrence and apprehended the condemned-prisoner-petitioner with the blood stained knife and brought him to the Police Station. The informant stated that the condemned-prisoner-petitioner in a pre-planned way killed his two daughters with a knife. Accordingly, the informant lodged the ‘First Information Report (FIR) on 27-2-2005 against the condemned-prisoner-petitioner under Section 302 of the Penal Code before the officer-in-charge of Baraigram Police Station, Natore. Hence, the Baraigram PS Case No. 18 dated 27-2-2005 corresponding to GR No. 35/2005 was started.
3. The Investigating Officer visited the place of occurrence, prepared the sketch map with index prepared inquest report and recorded the statement of witnesses under Section 161 of the Code of Criminal Procedure. After completion of investigation he submitted Chargesheet No, 65 dated 15-4-2005 under Section 302 of the Penal Code against the condemned-prisoner-petitioner,
4. The case was transferred to the Court of Sessions Judge, Natore where it was numbered as Sessions Case No. 63 of 2005. Charge was framed under Section 302 of the Penal Code against the condemned-prisoner-petitioner and read over to him to which he pleaded not guilty and claimed to be tried. During trial the prosecution examined as many as 16 (sixteen) PWs who were cross-examined by the defence. The condemned-prisoner-petitioner was examined under Section 342 of the Code of Criminal Procedure when again he pleaded not guilty and repeated his claim of innocence.
5. The trial Court after hearing the parties and upon consideration of the evidence and material is on record convicted the condemned prisoner-petitioner Md Azizul Haque Bacchu under Section 302 of the Penal Code and sentenced him to death by judgment and order of conviction and sentence dated 28-11-2005.
6. Reference under Section 374 of the Code of Criminal Procedure was made to the High Court Division for confirmation of the sentence of death, which was numbered as Death Reference No, 169 of 2005.
7. Before the High Court Division the Jail Appeal No. 1429 of 2005 was preferred by the condemned-prisoner-petitioner, which was heard along with the Death Reference. By the impugned judgment and order the High Court Division accepted the reference and dismissed the jail appeal. Hence, the condemned-prisoner-petitioner has filed the instant jail petition before this Division.
8. In his jail petition the condemned-prisoner-petitioner has stated that upon hearing the cry of a female he ran from his shop to the place of occurrence. When he entered the room someone locked the door from the outside with a chain. Upon hearing hue and cry people from the neighborhood arrived and later the police arrived and he was handed over to the police. The condemned-prisoner-petitioner claimed that he had no part to play in the occurrence. He further stated that at the behest of the Chairman of the Pourashava the police tortured him inhumanly and later police took him to the Magistrate and made him confess on the promise that he would be released. He further claimed that he was the sole earner in his family having old aged parents.
9. Mr Helaluddin Mollah, the learned Advocate appearing on behalf of the petitioner concedes so far as the conviction under Section 302 of the Penal Code is concerned, but pleads for mercy of this Division and submits that on humanitarian grounds the petitioner’s sentence of death may be commutated to one of imprisonment for life. The learned Advocate further submits that the occurrence took place on the spur of the moment and the petitioner acted due to his anger because his proposal to marry the victim was rejected. With regard to the death of the victim’s baby sister, the learned Advocate submits that the petitioner was not aware of her presence and therefore, in the facts and circumstances, he submits that the capital punishment may be commutated to imprisonment for life.
10. We have considered the submissions of the learned Advocate for the petitioner and perused the impugned judgment of the High Court Division and other connected papers on record.
11. We find from the judgment of the High Court Division that the evidence of the witnesses has been thoroughly discussed, as was done by the trial Court. The condemned prisoner-petitioner was caught red handed inside the room where he had struck the two victims with a sharp knife causing as many as 16 (sixteen) incised injuries on the thirteen years old victim Pakhi Khatoon alias Chandni. There were also more than four incised injuries on the body of 12 year old victim Sumaya Khatoon on various parts of her body. Evidently, the injuries caused demonstrate extreme brutality and wanton disregard for human life. Moreover, the condemned-prisoner-petitioner made a confessional statement which was recorded by a Magistrate under section 164 of the Code of Criminal Procedure in which he admitted to have attacked the victim Pakhi Khatoon with a knife and struck her indiscriminately. He also admitted that two days prior to the occurrence he had the knife sharpened at Lakhkikol Bazaar.
12. As noted by the High Court Division, PWs. 2, 3, 4 and 9 are eye witnesses who saw the occurrence with the help of torch light. Such evidence of the witnesses could not be shaken in cross-examination. The accused is alleged to have entered into the room where the victims were standing. He was armed with a long knife and straightaway the helpless victims were struck mercilessly with the knife. The High Court Division rightly observed that “it cannot be said that he had no intention to kill or there is no premeditation”.
13. Having considered the evidence and materials on record and in view of the gruesomeness of the attack upon two very young, innocent and helpless children and noting also the ruthlessness of the attack and the callous disregard of the condemned prisoner for human life, we feel no compunction to commute the sentence of death awarded by the trial Court which was confirmed by the High Court Division.
Accordingly, the Jail Petition is dismissed.
