(From previous issue) :
13. In reply to cross-examination the complainant as well as investigating officer of the case testified at a stage that he is the complainant as well as the investigating officer before whom for the 1st time one Aynal Hoque Member of the PO village gave an information about a floating dead body. Subsequent to that, the son of the deceased Mehbuba, Khokon and the brother of the deceased Sirajul identified the dead body. This witness during his deposition states at a stage in reply to a question of the defence that during his investigation he came to learn that Sukur Ali and Mehbuba are husband and wife and they used to reside in the residence of Mehbuba’s parents. In a reply to another question on the place of occurrence the investigating officer (PW1) categorically testified that the place of occurrence is situated beside Iramoti canal of Dupchachia Police Station and the condemned-prisoner Sukur Ali himself identified the same in his presence.
14. The witness No. 2 of the prosecution (PW 2) is Aynal Hoque Bepari. This witness testified that on 10-6-2006 finding the dead body in a canal he informed the matter to one Bablu Member and thereafter the inquest report of the dead body was prepared in his presence and he put a signature therein. PW 2 identified his signature in the inquest report which has been marked as Exhibit-1/2. During cross-examination PW 2 stated at a stage that finding the dead body of the deceased it was presumed that the dead body is decomposed.
15. PW 3 Md Khokon testified that the deceased Mehbuba was his mother and he along with his mother used to reside in the residence of his maternal grand father and after the death of his (PW 3) father, the accused Sukur Ali married his mother Mehbuba when she was widow. This witness further testifies that Sukur Ali was a carpenter in the village and prior to the date of occurrence Sukur Ali beat his mother Mehbuba and on 8-6-2006 in the name of “Kabiraj” Sukur Ali called his mother from the residence and after that his mother did not return. On the following day while his grandmother asked Sukur Ali about the where-abouts of Mehbuba, Sukur Ali being very much afraid of was trembling. Thereafter, this witness along with others of the locality started searching of Mehbuba and on 10-6-2006 from a newspaper he came to know about a dead body & then going before the dead body he identified the body as of his mother ‘Mehbuba’.
16. In a reply to cross-examination PW 3 testified at a stage that his mother prior to the occurrence used to live with his step-father Sukur Ali in the same residence and finding the wearing apparels of the dead body along with pictures of that; he could recognize the body as of his mother Mehbuba.
17. PW 4 M Shamsuddin was tendered from the side of the prosecution and defence cross examined him. During cross-examination PW 4 testified that he had two daughters namely Mehbuba and Mahima & PW 3 Khokon is the son of Mehbuba’s first husband. This witness further testified that for the second time Mehbuba got herself married with Sukur Ali who was a carpenter. They used to reside in the residence of this witness and on the date of occurrence in the name of doctor Sukur Ali taking his wife from his (PW 4) residence killed her daughter Mehbuba.
18. PW 5 Nurunnahar during her deposition testified before the learned trial court that she knows both the parties & on 8-6-2006 the occurrence took place and prior to that Mehbuba and Sukur Ali were husband and wife and they lived together. This witness further states that she is a lady Member of the locality. She testified that prior to the occurrence there was a hassle between Mehbuba and Sukur Ali.
19. PW 6 Nowroz Islam is a hear-say witness of this case.
20. PW 7· is Doctor Md Rezaul Karim, Lecturer, Forensic Medicine, Shahid Ziaur Rahman Medical College Hospital, Bogra. This witness in his testimony testified that on 11-6-2006 he did the postmortem and after that he gave his report, which reads as follows:
“Body was decomposed, Bruise black in colour over the skin just below right mandible on dissection bruise & haematoma just below the skin, fracture of the thyroid cartilage-congestion of larynx trachea. All injuries are ante mortem. In my opinion, death was due to asphyxia resulting from throatling which was ante mortem & homicidal in nature.”
21. This witness identified the postmortem report which has been marked as Exhibit-4.
22. The last witness of this case PW 8 is Md Mostafizur Rahman Mridha. This witness during his deposition before the Court testified that on 12-7-2006 he was Magistrate, 1st Class in Bogra. In connection of GR Case No. 45 of 2006 (Dhupchacia) he recorded the confessional statement of this condemned-prisoner Sukur Ali under Section 164 of the Code of Criminal Procedure. This witness identified the statement of condemned-prisoner and his signature therein which has been marked as Exhibit-5, 5/1 and 5/2 respectively.
23. During cross-examination Magistrate Mostafizur Rahman testified at a stage that he was satisfied at the time of recording the confessional HC-21 statement of the condemned- prisoner that the confession is true and voluntary and prior to recording of the confessional statement he has complied with all the legal formalities. He also rendered more than three hours time for reflection of the condemned-prisoner prior to statement and thereafter recorded the statement in the language of the condemned-prisoner.
24. Apart from the oral evidence of this case, the confessional· statement which has been marked as Exhibit-5 go to show that the condemned-prisoner Md Sukur Ali in his confession which was recorded under Section 164 of the Code of Criminal Procedure states as follows:
“??? ?????? ?? ???? ??? ???????? ????? ??????? ????¯’? ?????? ???????????? ???? ????????? ????? ???? ????? ????? ??? ???? ???? ??? ????? ??? ???? ?????? ??????? ?????? ??? ?”???? ???????? ???? ?????/??? ??????? ????? ???? ??? ????? ????? ??????? ?????? ??????? ????? ?? ?????? ????? ??? ?? ???? ???? ?? ?????? ?????? ???? ???????? ???????? ????? ???? ?? ?-?-???? ?????? ????? ????? ????? ??? ?????? ?????? ???? ???? ???????? ?????? ??? ??? ????? ????? ?? ???? ??? ??????? ?????? ??? ?????? ????? ???? ??? ???? ???? ?/? ??? ???? ???? ????? ??? ?????????? ????? ???? ???????? ????? ????? ???? ???? ????? ???????? ??????? ??????, ????? ????? ????? ??? ???????? ???? ???? ????????? ???????? ?? ????? ???? ??? ??? ?????? ??? ????? ?? ?????? ???? ????? ????? ???? ??????? ??????? ????? ??? ???? ?????? ???? ????? ??? ??????? ???? ???? ???? ?????? ????? ????? ??? ?? ??????? ??????? ????? ??????? ??????? ???? ???? ???? ????? ???? ??? ? ??? ???? ???? ???? ??????? ??? ???? ??? ??? ????? ? ???? ???? ???? ????? ??????? ?? ??? ??? ??? ???? ?? ???? ??????? ??? ???????? ?”? ??? ???? ???? ???????? ???? ??????????? ???? ????????? ?????? ???? ???????? ???????? ??? ??????? ????? ??? ????? ?? ???? ??? ???? ??????? ?? ??? ??? ???? ???? ???? ??? ??? ????? ?????? ???? ????? ????????? ??? ???? ??? ??? ?????, ??? ????”
25. Having gone through the above mentioned statement along with other material evidence on records; we find that in the instant case despite there is no eye-witness of the occurrence, even then; there is a confessional statement from the side of the condemned-prisoner Sukur Ali which was recorded by a Magistrate, I st Class, the witness No.8 of this case and against this substantive evidence of the prosecution, the defence has declined to produce any paper or adduce any witness to disproof or deny the prosecution’s contention/case. Besides this; during examination of the condemned-prisoner under Section 342 of the Code of Criminal Procedure all the incriminating evidence specially the confessional statement of him was pointed out and due attention of the accused was taken prior to recording of this reply, but the confessing accused Sukur Ali in his reply raised no objection or such claim that his confession was obtained by any threat, torture, coercion or provocation. The important matter which is transpired from his examination under Section 342 of the Code of Criminal Procedure is such that he raised no complain or allegation with regard to his confessional statcment in which he directly involved himself in the occurrence of killing his wife Mehbuba. The fact remains that, if it is found that the confessional statement of the accused is true and voluntary it is enough for conviction of the confessing accused. The incriminatina evidence in the instant case as we have come across is such that, prior to the date of occurrence the condemned-prisoner Sukur Ali and his wife the deceased Mehbuba used to reside in the residence of Mehbuba’s parents. It is also within evidence and proved conclusively by sufficient cogent, credible evidence that on the date of occurrence i.e. on 8-6-2006 the condemned-prisoner Sukur Ali prior to the death of his wife Mehbuba was with him and the husband and wife were coming from Bogra town together and reached to the place of occurrence which is a bank of a canal “Iramoti Khal” by name.
26. On careful scrutiny over the evidence on record it is noticed that all the PWs were thoroughly cross-examined from the side of the defence but none of them appears to have been discredited and except some minor discrepancies which were natural, the evidence of the witnesses appears to be sound and cogent. The learned trial court during disposal of the case discussed the evidence on record vividly and evaluated the same in it’s true perspective and arrived at a concrete decision that on the date, in the manner and in the place as stated from the side of the prosecution the condemned-prisoner Sukur Ali killed his wife Mehbuba by throatling. It is also noticed from the papers on record that the police after apprehension of the condemned-prisoner Sukur Ali within 30 hours produced him before PW 8 Magistrate, 1st Class Md Mostafizur Rahman Mridha for recording his confessional statement and on perusal of the confessional statement of the condemned-prisoner which has been marked as exhibit-5 we have the reason to inclined such a view that the Magistrate who recorded the statement of the condemned-prisoner, before his recording; complied with the mandatory provisions of sections 164 and 364 of the Code of Criminal Procedure and we find nothing to disbelieve the learned Magistrate who was examined as PW 8. Besides this; from the papers on records it is apparent that after arrest police did no act of fear in the mind of the condemned-prisoner Sukur Ali prior to his confessional statement under section 164 of the Code of Criminal Procedure. The condemned-prisoner also did not raise any allegation on torture, threat, provocation or coercion from the side of the police or any body before recording of his confessional statement.
27. Consulting the evidence it further transpires that, the Autopsy Report is consistent with the prosecution case as well as investigating officer of this case and the cause of death which was given by the postmortem done doctor, Dr Md Rezaul Karim is identical with the symptom of the dead body and it is well established that the deceased of this case died due to throatling and after that; the dead body was dragged into the water of a canal to conceal the same.
28. Scanning the evidence on record it also appears that, there was a bitter relationship between the husband and wife prior to the date of occurrence and on the date of occurrence also i.e. on 8-6-2006 there was an altercation between Sukur Ali and the deceased Mehbuba. It is also within record that at the time of occurrence initially the wife Mehbuba tied of the collar of her husband Sukur Ali at the stage of altercation between them and thereafter the condemned-prisoner Sukur Ali by throttling killed his wife.
Therefore, obviously it can be easily held that the condemned-prisoner prior to commission of the offence was not in cool brain, rather; there was a provocation from the side of the victim Mehbuba which led him to kill the victim. Apart from this; we have come across from the evidence on record that the condemned-prisoner married twice and his first wife filed a criminal case against him.
29. It is a fact that in the instant case there is no eye witness which is very natural inasmuch as the occurrence is nothing but a wife killing case. The fact remains that prior to the date of occurrence both the victim as well as her husband the condemned-prisoner lived together as husband and wife in a same residence and it has come into evidence from the testimony of the father of the deceased who is PW 4 Md Samsuddin that from his residence prior to occurrence the condemned prisoner Sukur Ali took away his second wife the victim Mehbuba.
(To be continued)
It is true that; there is no eyewitness of the occurrence but undisputedly the deceased was the wife of the condemned-prisoner and she was living in the house of her parents with her husband the condemned-prisoner Sukur Ali as husband and wife. It is also in the evidence as testified by the prosecution witnesses No.3 and 4 that the condemned-prisoner Sukur Ali took away the deceased on 8-6-2006 from the house of her parents on the plea of treatment from a doctor and subsequent to that the dead body of the deceased was found in the water of a canal. In the case of Hamidur Rahman (Ms.) vs State, 15 BLC (AD) 127, their lordships held such a view that in the facts and circumstances of like nature the accused of a case cannot escape from his liability.
30. Let us now look into the next incriminating substantive evidence of this case viz. the confessional statement of the condemned-prisoner Sukur Ali (Exhibit-5).
31. Whenever it is noticed that, all the legal mandatory formalities in recording the confessional statement are duly observed and the Magistrate; who recorded the confessional statement is satisfied that the confession is voluntary and free from all taint-in that case, such confession can be the sole basis of conviction of the confessing accused. In the case of ABM Nazmus Sakib Ashik vs State, 12 BLC (AD) 203 their lordships has given much importance on the satisfaction of the Magistrate who recorded the confession of the accused as to the voluntariness and spontaneous nature of the confession of the accused. Hence, it appears that the acceptability of a confession depends on the satisfaction of the confession recording Magistrate.
32. In the instant case; the confessional statement of the accused Sukur Ali inasmuch as is free from any legal lacking, this is no doubt a direct piece of evidence to hold such a view that the condemned-prisoner committed the offence killing his wife Mehbuba and such confessional statement of the accused can easily be relied on for the purpose of conviction and no further corroboration is necessary as it relates to the confessing accused himself since it is voluntary and also true. The trial Court here has believed that the confession is voluntary and free from taint. So, there is no legal bar on the court for ordering conviction. Accordingly, here in this ease; the learned trial court i.e. Additional Sessions Judge, Bogra finding the convict-appellant guilty under section 302 of the Penal Code sentenced him thereunder to death.
33. It is a fact; that as we have come across from the evidence on records that there was no pre-plan or premeditation from the side of the convict-appellant to kill his wife, we have the reason to hold such a view that there was a provocation from the side of the deceased prior to the occurrence of killing her by her husband Sukur Ali and definitely on the hit of the moment the deceased Mehbuba was killed by throatling. 1t is evident as we have already spelt out earlier that the relationship between the husband and wife was not good. Hence; the premeditation of killing the victim Mehbuba from the side of the condemned-prisoner prior to the occurrence of killing her is absent. In this circumstance of the case it amounts to culpable homicidal not amounting to murder, under the ambit of Section 304 (Part-I) of the Penal Code. Under this section punishment to be awarded when the injury is made with the intention of causing death. From the materials on record and nature of injury caused in this case, it is not difficult to hold that the condemned-prisoner assaulted his wife Mehbuba with intention of causing death inasmuch as it is obvious from the face of the papers that due to asphyxia resulting from throatling the deceased Mehbuba died instantly on the place of occurrence. Hence; this occurrence clearly lies under part-I of Section 304 of the Penal Code. [Ref State vs Abdul Barek 54 DLR (AD) 28, Nasir Howlader vs State 56 DLR 151].
34. In the instant case; meanwhile we have noticed that the condemned-prisoner Sukur Ali is in jail custody since 12-7-2006 and it appears that the condemned-prisoner have a poor economic social background, as reflected from the factual aspects of the case and it is already referred to above that the offence committed by the condemned-prisoner Sukur Ali was not under premeditation and in this context it appears that the learned Additional Sessions Judge, Bogra during passing the order of conviction and sentence has failed to appreciate the actual facts of the case as well as proposition of law which is incorporated in Section 302 and Section 304 of the Penal Code.
35. It is an appropriate case where the offence under Section 302 of the Penal Code is liable to be turned into an offence under Section 304 of the Penal Code and the factual aspects of the case lead us to believe that the sentence, of death as awarded by the trial Judge is liable to be commuted to the imprisonment for life under the purview of Section 304 (Part-I) of the Penal Code.
36. In the result, this Death Reference No. 39 of 2010 is rejected with modification of sentence from death to imprisonment for life and the connected appeal and Jail Appeal are dismissed. The conviction of sentence is altered under section 304 (Part-I) from Section 302 of the Penal Code. The punishment of death sentence is hereby commuted and substituted by imprisonment for life. Accordingly, the conviction of the condemned prisoner Md Sukur Ali is upheld and the death sentence be reduced to imprisonment of life.
37. The term of imprisonment would be counted under the provision laid down in section 35A of the Code of Criminal Procedure.
Communicate the Judgment and order immediately and send down the lower Court’s records at once and inform all concerned.
13. In reply to cross-examination the complainant as well as investigating officer of the case testified at a stage that he is the complainant as well as the investigating officer before whom for the 1st time one Aynal Hoque Member of the PO village gave an information about a floating dead body. Subsequent to that, the son of the deceased Mehbuba, Khokon and the brother of the deceased Sirajul identified the dead body. This witness during his deposition states at a stage in reply to a question of the defence that during his investigation he came to learn that Sukur Ali and Mehbuba are husband and wife and they used to reside in the residence of Mehbuba’s parents. In a reply to another question on the place of occurrence the investigating officer (PW1) categorically testified that the place of occurrence is situated beside Iramoti canal of Dupchachia Police Station and the condemned-prisoner Sukur Ali himself identified the same in his presence.
14. The witness No. 2 of the prosecution (PW 2) is Aynal Hoque Bepari. This witness testified that on 10-6-2006 finding the dead body in a canal he informed the matter to one Bablu Member and thereafter the inquest report of the dead body was prepared in his presence and he put a signature therein. PW 2 identified his signature in the inquest report which has been marked as Exhibit-1/2. During cross-examination PW 2 stated at a stage that finding the dead body of the deceased it was presumed that the dead body is decomposed.
15. PW 3 Md Khokon testified that the deceased Mehbuba was his mother and he along with his mother used to reside in the residence of his maternal grand father and after the death of his (PW 3) father, the accused Sukur Ali married his mother Mehbuba when she was widow. This witness further testifies that Sukur Ali was a carpenter in the village and prior to the date of occurrence Sukur Ali beat his mother Mehbuba and on 8-6-2006 in the name of “Kabiraj” Sukur Ali called his mother from the residence and after that his mother did not return. On the following day while his grandmother asked Sukur Ali about the where-abouts of Mehbuba, Sukur Ali being very much afraid of was trembling. Thereafter, this witness along with others of the locality started searching of Mehbuba and on 10-6-2006 from a newspaper he came to know about a dead body & then going before the dead body he identified the body as of his mother ‘Mehbuba’.
16. In a reply to cross-examination PW 3 testified at a stage that his mother prior to the occurrence used to live with his step-father Sukur Ali in the same residence and finding the wearing apparels of the dead body along with pictures of that; he could recognize the body as of his mother Mehbuba.
17. PW 4 M Shamsuddin was tendered from the side of the prosecution and defence cross examined him. During cross-examination PW 4 testified that he had two daughters namely Mehbuba and Mahima & PW 3 Khokon is the son of Mehbuba’s first husband. This witness further testified that for the second time Mehbuba got herself married with Sukur Ali who was a carpenter. They used to reside in the residence of this witness and on the date of occurrence in the name of doctor Sukur Ali taking his wife from his (PW 4) residence killed her daughter Mehbuba.
18. PW 5 Nurunnahar during her deposition testified before the learned trial court that she knows both the parties & on 8-6-2006 the occurrence took place and prior to that Mehbuba and Sukur Ali were husband and wife and they lived together. This witness further states that she is a lady Member of the locality. She testified that prior to the occurrence there was a hassle between Mehbuba and Sukur Ali.
19. PW 6 Nowroz Islam is a hear-say witness of this case.
20. PW 7· is Doctor Md Rezaul Karim, Lecturer, Forensic Medicine, Shahid Ziaur Rahman Medical College Hospital, Bogra. This witness in his testimony testified that on 11-6-2006 he did the postmortem and after that he gave his report, which reads as follows:
“Body was decomposed, Bruise black in colour over the skin just below right mandible on dissection bruise & haematoma just below the skin, fracture of the thyroid cartilage-congestion of larynx trachea. All injuries are ante mortem. In my opinion, death was due to asphyxia resulting from throatling which was ante mortem & homicidal in nature.”
21. This witness identified the postmortem report which has been marked as Exhibit-4.
22. The last witness of this case PW 8 is Md Mostafizur Rahman Mridha. This witness during his deposition before the Court testified that on 12-7-2006 he was Magistrate, 1st Class in Bogra. In connection of GR Case No. 45 of 2006 (Dhupchacia) he recorded the confessional statement of this condemned-prisoner Sukur Ali under Section 164 of the Code of Criminal Procedure. This witness identified the statement of condemned-prisoner and his signature therein which has been marked as Exhibit-5, 5/1 and 5/2 respectively.
23. During cross-examination Magistrate Mostafizur Rahman testified at a stage that he was satisfied at the time of recording the confessional HC-21 statement of the condemned- prisoner that the confession is true and voluntary and prior to recording of the confessional statement he has complied with all the legal formalities. He also rendered more than three hours time for reflection of the condemned-prisoner prior to statement and thereafter recorded the statement in the language of the condemned-prisoner.
24. Apart from the oral evidence of this case, the confessional· statement which has been marked as Exhibit-5 go to show that the condemned-prisoner Md Sukur Ali in his confession which was recorded under Section 164 of the Code of Criminal Procedure states as follows:
“??? ?????? ?? ???? ??? ???????? ????? ??????? ????¯’? ?????? ???????????? ???? ????????? ????? ???? ????? ????? ??? ???? ???? ??? ????? ??? ???? ?????? ??????? ?????? ??? ?”???? ???????? ???? ?????/??? ??????? ????? ???? ??? ????? ????? ??????? ?????? ??????? ????? ?? ?????? ????? ??? ?? ???? ???? ?? ?????? ?????? ???? ???????? ???????? ????? ???? ?? ?-?-???? ?????? ????? ????? ????? ??? ?????? ?????? ???? ???? ???????? ?????? ??? ??? ????? ????? ?? ???? ??? ??????? ?????? ??? ?????? ????? ???? ??? ???? ???? ?/? ??? ???? ???? ????? ??? ?????????? ????? ???? ???????? ????? ????? ???? ???? ????? ???????? ??????? ??????, ????? ????? ????? ??? ???????? ???? ???? ????????? ???????? ?? ????? ???? ??? ??? ?????? ??? ????? ?? ?????? ???? ????? ????? ???? ??????? ??????? ????? ??? ???? ?????? ???? ????? ??? ??????? ???? ???? ???? ?????? ????? ????? ??? ?? ??????? ??????? ????? ??????? ??????? ???? ???? ???? ????? ???? ??? ? ??? ???? ???? ???? ??????? ??? ???? ??? ??? ????? ? ???? ???? ???? ????? ??????? ?? ??? ??? ??? ???? ?? ???? ??????? ??? ???????? ?”? ??? ???? ???? ???????? ???? ??????????? ???? ????????? ?????? ???? ???????? ???????? ??? ??????? ????? ??? ????? ?? ???? ??? ???? ??????? ?? ??? ??? ???? ???? ???? ??? ??? ????? ?????? ???? ????? ????????? ??? ???? ??? ??? ?????, ??? ????”
25. Having gone through the above mentioned statement along with other material evidence on records; we find that in the instant case despite there is no eye-witness of the occurrence, even then; there is a confessional statement from the side of the condemned-prisoner Sukur Ali which was recorded by a Magistrate, I st Class, the witness No.8 of this case and against this substantive evidence of the prosecution, the defence has declined to produce any paper or adduce any witness to disproof or deny the prosecution’s contention/case. Besides this; during examination of the condemned-prisoner under Section 342 of the Code of Criminal Procedure all the incriminating evidence specially the confessional statement of him was pointed out and due attention of the accused was taken prior to recording of this reply, but the confessing accused Sukur Ali in his reply raised no objection or such claim that his confession was obtained by any threat, torture, coercion or provocation. The important matter which is transpired from his examination under Section 342 of the Code of Criminal Procedure is such that he raised no complain or allegation with regard to his confessional statcment in which he directly involved himself in the occurrence of killing his wife Mehbuba. The fact remains that, if it is found that the confessional statement of the accused is true and voluntary it is enough for conviction of the confessing accused. The incriminatina evidence in the instant case as we have come across is such that, prior to the date of occurrence the condemned-prisoner Sukur Ali and his wife the deceased Mehbuba used to reside in the residence of Mehbuba’s parents. It is also within evidence and proved conclusively by sufficient cogent, credible evidence that on the date of occurrence i.e. on 8-6-2006 the condemned-prisoner Sukur Ali prior to the death of his wife Mehbuba was with him and the husband and wife were coming from Bogra town together and reached to the place of occurrence which is a bank of a canal “Iramoti Khal” by name.
26. On careful scrutiny over the evidence on record it is noticed that all the PWs were thoroughly cross-examined from the side of the defence but none of them appears to have been discredited and except some minor discrepancies which were natural, the evidence of the witnesses appears to be sound and cogent. The learned trial court during disposal of the case discussed the evidence on record vividly and evaluated the same in it’s true perspective and arrived at a concrete decision that on the date, in the manner and in the place as stated from the side of the prosecution the condemned-prisoner Sukur Ali killed his wife Mehbuba by throatling. It is also noticed from the papers on record that the police after apprehension of the condemned-prisoner Sukur Ali within 30 hours produced him before PW 8 Magistrate, 1st Class Md Mostafizur Rahman Mridha for recording his confessional statement and on perusal of the confessional statement of the condemned-prisoner which has been marked as exhibit-5 we have the reason to inclined such a view that the Magistrate who recorded the statement of the condemned-prisoner, before his recording; complied with the mandatory provisions of sections 164 and 364 of the Code of Criminal Procedure and we find nothing to disbelieve the learned Magistrate who was examined as PW 8. Besides this; from the papers on records it is apparent that after arrest police did no act of fear in the mind of the condemned-prisoner Sukur Ali prior to his confessional statement under section 164 of the Code of Criminal Procedure. The condemned-prisoner also did not raise any allegation on torture, threat, provocation or coercion from the side of the police or any body before recording of his confessional statement.
27. Consulting the evidence it further transpires that, the Autopsy Report is consistent with the prosecution case as well as investigating officer of this case and the cause of death which was given by the postmortem done doctor, Dr Md Rezaul Karim is identical with the symptom of the dead body and it is well established that the deceased of this case died due to throatling and after that; the dead body was dragged into the water of a canal to conceal the same.
28. Scanning the evidence on record it also appears that, there was a bitter relationship between the husband and wife prior to the date of occurrence and on the date of occurrence also i.e. on 8-6-2006 there was an altercation between Sukur Ali and the deceased Mehbuba. It is also within record that at the time of occurrence initially the wife Mehbuba tied of the collar of her husband Sukur Ali at the stage of altercation between them and thereafter the condemned-prisoner Sukur Ali by throttling killed his wife.
Therefore, obviously it can be easily held that the condemned-prisoner prior to commission of the offence was not in cool brain, rather; there was a provocation from the side of the victim Mehbuba which led him to kill the victim. Apart from this; we have come across from the evidence on record that the condemned-prisoner married twice and his first wife filed a criminal case against him.
29. It is a fact that in the instant case there is no eye witness which is very natural inasmuch as the occurrence is nothing but a wife killing case. The fact remains that prior to the date of occurrence both the victim as well as her husband the condemned-prisoner lived together as husband and wife in a same residence and it has come into evidence from the testimony of the father of the deceased who is PW 4 Md Samsuddin that from his residence prior to occurrence the condemned prisoner Sukur Ali took away his second wife the victim Mehbuba.
(To be continued)
It is true that; there is no eyewitness of the occurrence but undisputedly the deceased was the wife of the condemned-prisoner and she was living in the house of her parents with her husband the condemned-prisoner Sukur Ali as husband and wife. It is also in the evidence as testified by the prosecution witnesses No.3 and 4 that the condemned-prisoner Sukur Ali took away the deceased on 8-6-2006 from the house of her parents on the plea of treatment from a doctor and subsequent to that the dead body of the deceased was found in the water of a canal. In the case of Hamidur Rahman (Ms.) vs State, 15 BLC (AD) 127, their lordships held such a view that in the facts and circumstances of like nature the accused of a case cannot escape from his liability.
30. Let us now look into the next incriminating substantive evidence of this case viz. the confessional statement of the condemned-prisoner Sukur Ali (Exhibit-5).
31. Whenever it is noticed that, all the legal mandatory formalities in recording the confessional statement are duly observed and the Magistrate; who recorded the confessional statement is satisfied that the confession is voluntary and free from all taint-in that case, such confession can be the sole basis of conviction of the confessing accused. In the case of ABM Nazmus Sakib Ashik vs State, 12 BLC (AD) 203 their lordships has given much importance on the satisfaction of the Magistrate who recorded the confession of the accused as to the voluntariness and spontaneous nature of the confession of the accused. Hence, it appears that the acceptability of a confession depends on the satisfaction of the confession recording Magistrate.
32. In the instant case; the confessional statement of the accused Sukur Ali inasmuch as is free from any legal lacking, this is no doubt a direct piece of evidence to hold such a view that the condemned-prisoner committed the offence killing his wife Mehbuba and such confessional statement of the accused can easily be relied on for the purpose of conviction and no further corroboration is necessary as it relates to the confessing accused himself since it is voluntary and also true. The trial Court here has believed that the confession is voluntary and free from taint. So, there is no legal bar on the court for ordering conviction. Accordingly, here in this ease; the learned trial court i.e. Additional Sessions Judge, Bogra finding the convict-appellant guilty under section 302 of the Penal Code sentenced him thereunder to death.
33. It is a fact; that as we have come across from the evidence on records that there was no pre-plan or premeditation from the side of the convict-appellant to kill his wife, we have the reason to hold such a view that there was a provocation from the side of the deceased prior to the occurrence of killing her by her husband Sukur Ali and definitely on the hit of the moment the deceased Mehbuba was killed by throatling. 1t is evident as we have already spelt out earlier that the relationship between the husband and wife was not good. Hence; the premeditation of killing the victim Mehbuba from the side of the condemned-prisoner prior to the occurrence of killing her is absent. In this circumstance of the case it amounts to culpable homicidal not amounting to murder, under the ambit of Section 304 (Part-I) of the Penal Code. Under this section punishment to be awarded when the injury is made with the intention of causing death. From the materials on record and nature of injury caused in this case, it is not difficult to hold that the condemned-prisoner assaulted his wife Mehbuba with intention of causing death inasmuch as it is obvious from the face of the papers that due to asphyxia resulting from throatling the deceased Mehbuba died instantly on the place of occurrence. Hence; this occurrence clearly lies under part-I of Section 304 of the Penal Code. [Ref State vs Abdul Barek 54 DLR (AD) 28, Nasir Howlader vs State 56 DLR 151].
34. In the instant case; meanwhile we have noticed that the condemned-prisoner Sukur Ali is in jail custody since 12-7-2006 and it appears that the condemned-prisoner have a poor economic social background, as reflected from the factual aspects of the case and it is already referred to above that the offence committed by the condemned-prisoner Sukur Ali was not under premeditation and in this context it appears that the learned Additional Sessions Judge, Bogra during passing the order of conviction and sentence has failed to appreciate the actual facts of the case as well as proposition of law which is incorporated in Section 302 and Section 304 of the Penal Code.
35. It is an appropriate case where the offence under Section 302 of the Penal Code is liable to be turned into an offence under Section 304 of the Penal Code and the factual aspects of the case lead us to believe that the sentence, of death as awarded by the trial Judge is liable to be commuted to the imprisonment for life under the purview of Section 304 (Part-I) of the Penal Code.
36. In the result, this Death Reference No. 39 of 2010 is rejected with modification of sentence from death to imprisonment for life and the connected appeal and Jail Appeal are dismissed. The conviction of sentence is altered under section 304 (Part-I) from Section 302 of the Penal Code. The punishment of death sentence is hereby commuted and substituted by imprisonment for life. Accordingly, the conviction of the condemned prisoner Md Sukur Ali is upheld and the death sentence be reduced to imprisonment of life.
37. The term of imprisonment would be counted under the provision laid down in section 35A of the Code of Criminal Procedure.
Communicate the Judgment and order immediately and send down the lower Court’s records at once and inform all concerned.
