Severity of crime, not age determines type of sentence

Appellate Division (Criminal) MM Ruhul Amin CJ Md Fazlul Karim J Md Tafazzul Islam J Md Joynul Abedin J Alam Uddin alias Shapan….... Petitioner vs State ……….Respondent* Judgment March 3rd, 2009. Code of Criminal Procedure (V of 1898) Section 374 The death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region, which was antemortem and homicidal in nature and it is ex-facie clear that the petitioner strangled the victim with the intention of causing her death and there is no circumstances that may impel the Court to take a lenient view in commuting the death sentence as there is no mitigating or extenuating circumstances on record for the purpose of commutation of the death sentence, rather all the circumstances are aggravating. . .. ( 5) Md Helaluddin Mollah. Advocate-For Petitioner SM Abdul Mobin. Deputy Attorney-General -For the Respondent. Judgment Md Tafazzul Islam J : This jail petition seeking leave to appeal is directed against the judgment and order dated 22-11-2005 of the High Court Division passed in Death Reference No.112 of 2003 accepting the same. 2. The prosecution case, in short, is that Khodeja Bibi alias Komola, the victim, was given marriage to the petitioner who, after the marriage, started maltreating her for money and, as a result, the relationship between them became strained and on the night following 1-12-1997 at about 12-30 0' clock, Saaduddin, the father of the petitioner and one Shajal came to the house of the PW 2, the father of the victim, and told him that the condition of the victim was critical and then PW 2 rushed to the house of Saaduddin and found the victim dead and though PW 1 saw finger marks on the throat of the victim but it was given out that the victim had committed suicide by taking poison and so PW 2 lodged Unnatural Death Case No.13 of 1997; after holding the inquest on the dead body of the victim, the same was sent to the hospital for autopsy where autopsy was held but opinion on autopsy was withheld pending receipt of the viscera examination report; then viscera examination report was received with the opinion that no poison was detected and the Medical Board opined that the death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region of the victim which was ante-mortem and homicidal in nature. The police, after investigation, submitted charge sheet against the petitioner under section 302 of the Penal Code. At the commencement of the trial of the case, the petitioner was charged under section 302 of the Penal Code but the same could not be read over and explained to him because of his abscondence and for the abscondence of the petitioner ultimately the trial case had to be concluded in absentia. The defence plea, as it appears from the trend of cross-examination of the prosecution witnesses, is that the victim committed suicide by taking poison in the house of the petitioner and the petitioner is not responsible for her death and he had been falsely implicated in the case out of oblique motive. After conclusion of the trial, the learned Sessions Judge Moulvibazar, by judgment and order dated 20-9-2003 convicted the petitioner under section 302 of the Penal Code and sentenced him to death and then made the reference to the High Court Division under section 374 of the Code of Criminal Procedure. The High Court Division, after hearing, accepted the reference upholding the sentence of death. 3. The learned counsel for the petitioner submits that the prosecution failed to prove that the death was due to demand of dowry and the High Court Division without any discussion on this point upheld the death sentence and further the High Court Division, without considering that the Doctor who conducted chemical examination, is the most important and vital witness of this case but he has not been examined; further the police, who took the death body to the hospital, has also not been examined which creates serious doubt on the prosecution case regarding the identification of dead body of the victim; moreover the petitioner was also not duly examined under section 342 of the Code of Criminal Procedure which is a mandatory provision; moreover, it is also evident from the record (postmortem report) that the age of the victim was 20 years and so the age of the condemned prisoner may be similar or a bit more and accordingly considering the tender age of the petitioner, the sentence of death may be commuted to sentence of imprisonment for life. 4. As it appears the High Court Division accepted the death reference holding that admittedly on the night following 1-12-1997 the victim lives with the petitioner in his house and the dead body was found there and the evidence on record does not show that the petitioner took any step for the treatment of the victim at the material time when her condition was critical and further the unexplained and continuous abscondence of the petitioner after the occurrence is a relevant fact under section 8 of the Evidence Act which is indicative of his 'mens rea' in the commission of the offence and there is also no evidence or suggestion or circumstances to show that the other inmates, if any, of the house of the petitioner assaulted her to death and further the petitioner did not bring the matter of the unnatural death of the victim to the notice of the police and moreover the evidence on record does not indicate that the petitioner attended the funeral rites of the victim; further as per viscera examination report. Exhibit 2, no poison was detected in the viscera in the victim and the opinion of the Medical Board is that the death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region which was ante-mortem and homicidal in nature and further the motive of killing of the victim-wife by the husband/petitioner has been firmly

18 June, 2013 Tuesday

Severity of crime, not age determines type of sentence