(From previous issue) :
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.
(Concluded)
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.
(Concluded)
