High Court Division
The State v Md. Nur Islam
Death Reference 98/2019 · Decided 27 July 2026
The Nari-o-Shishu Nirjatan Daman Tribunal No. 1, Sirajganj convicted a neighbour of rape followed by murder of an eight-year-old girl under section 9(2) of the Nari-o-Shishu Nirjatan Daman Ain, 2000, sentencing him to death, and of abduction under section 7, sentencing him to life imprisonment. The High Court Division found that the victim's mother and brother consistently testified that the accused called the child away in the evening to watch television, and her body was found the next morning in a nearby field. The autopsy showed vaginal injuries and a ligature mark, with death from strangulation after rape. The confession was properly recorded, consistent with the autopsy, and the Magistrate and investigating officer denied coercion, so the accused's isolated written claim of torture was not believed. The section 9(2) charge was proved, but the section 7 conviction was not sustained because calling the child away was in the natural course. Finding no mitigating circumstances, the Court accepted the reference and upheld the death sentence.
- Q1
Whether the prosecution proved beyond reasonable doubt that the accused raped and then strangled an eight-year-old child, so as to sustain a conviction under section 9(2) of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
- Q2
Whether the accused's confession was voluntary and true despite his later claim of police torture.
- Q3
Whether the conviction under section 7 of the Ain could stand and whether there were grounds to commute the death sentence.
- Consistent and unshaken evidence of the victim's mother and brother that the accused called the child away, together with the recovery of her body the next morning and the autopsy findings, supported the charge of rape followed by murder.
- A confession recorded in compliance with the law, consistent with the autopsy report, is not displaced by an isolated and unfounded written claim of police torture made at the examination under section 342 of the Code of Criminal Procedure.
- The charge under section 9(2) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 of rape followed by murder by strangulation was proved beyond reasonable doubt.
- The conviction and sentence under section 7 of the Ain could not be sustained because calling the victim away was in the natural course and the main offence under section 9(2) had been proved.
- Given the brutality of the offence against an eight-year-old child, custody during trial and more than seven years in the condemned cell were not grounds to commute the death sentence.
In the view of the brutality of the offence, we find that the period of custody of the condemned-prisoner during trial and that he remained in condemned cell for more than 7 (seven) years cannot be a ground to commute his sentence of death.
In the court’s own words.
Death Reference 98/2019, as published by the Supreme Court of Bangladesh. 26 pages, with paragraph numbers for citing.
1
Bench:
Mr. Justice Bhishmadev Chakrabortty
and
Mr. Justice K.M. Rasheduzzaman Raja
Death Reference No. 98 of 2019
The State …. petitioner
-Versus-
Md. Nur Islam …. condemned-prisoner
with
Criminal Appeal No. 10641 of 2019
and
Jail Appeal No. 275 of 2019
Md. Nurul Islam …. appellant
-Versus-
The State …. respondent
Mr. Mohammad Imam Hossain Tarek,
Deputy Attorney General with Mr.
Ashraful Alam and Mr. Al Amin Siddiqui,
Assistant Attorney Generals
…. for the state
(petitioner in reference and respondent in appeals)
Mr. Md. Hafizur Rahman Khan with
Mr. Jahurul Haque Kislu, Advocates
…. for the appellant
(in the appeals)
Judgment on 27.07.2026
Bhishmadev Chakrabortty, J:
1Learned Judge of Nar-o-Shishu Nirjatan Daman Tribunal No. 1, Sirajganj (the Tribunal) on trial in Nari-o- Shishu Nirjatan Daman Case 277 of 2015 found the condemned-prisoner Md. Nurul Islam guilty of offence under
sections 7 and 9(2) of Nar-o-Shishu Nirjatan Daman Ain, 2000 (the Ain, 2000) and convicted him under section 7 of the Ain sentencing thereunder to suffer rigorous imprisonment for life and to pay a fine of Taka 50,000/-, in default, to suffer simple imprisonment 01(one) year more; the Tribunal further convicted him under section 9(2) of the Ain, 2000 sentencing thereunder to death with fine of Taka 1 lac and sent the proceedings of the case to this Division for its confirmation. Against the selfsame judgment and order, the condemnedprisoner filed Jail Appeal 275 of 2019 and a regular appeal bearing Criminal Appeal 10641 of 2019, and as such these have been heard together and are being disposed of by this judgment.
2The prosecution case, in brief, is that PW1 Kohinur Begum, mother of victim Ritu Khatun lodged a first information report (FIR) with Sirajganj police station at about 14:15 hours on 12.10.2014 alleging that her victim daughter (aged about 8 years) was a student of class 1 of Sibnathpur Primary School. Accused Nurul Islam, a neighbour came to her house at about 7:00 pm on 11.10.2014 and called away the victim with him to watch television in their house. Thereafter,
the victim did not return home. They went to the house of the accused but found nobody there. The house was under lock and key. They looked for the victim in different places but did not find her out. Md. Rustom Ali (PW10) and Md. Mojibur Rahman two neighbours at about 7:00 am on 12.10.2014 went to their pointed gourd (fVm) field and found the victim’s dead body tied on a bamboo pole with gamchha. They found the victim naked. Her shoes and pant were found beside her body. On their hue and cry, the informant and other people rushed to the place of occurrence and found the dead body of victim. She (informant) found blood was coming out from her private organ and clotted blood on her two inguinals. The accused called away the victim with him on the pretext of watching television in their house, took her to the pointed gourd field and with the help of two other accused killed her after committing rape. They brought the dead body to her brother Al Mahmood’s house. Police came, held an inquest on the dead body prepared a report and sent the body to the morgue for holding autopsy. Thereafter, she lodged the FIR which was registered as Sirajganj Police Station Case No. 25 dated 12.10.2014 corresponding to GR No. 575 under sections 7,
39(2) and 30 of the Ain, 2000 against three accused including accused Md. Nurul Islam.
4PW11 Md. Golam Mostofa, a Sub-Inspector (SI) of police investigated the case. During investigation, he collected prosecution materials and submitted a charge sheet on 12.10.2014 only against accused Md. Nurul Islam under sections 7 and 9(2) of the Ain, 2000. The record of the case was then transmitted to the Tribunal for holding trial.
5In the Tribunal, the case was registered as Nari-o- Shishu Case 277 of 2015. Learned Judge of the Tribunal took cognizance of offence against sole accused on 23.03.2015 under sections 7 and 9(2) of the Ain, 2000. In course of time, the Tribunal framed charge against him on 26.04.2015 under the selfsame sections of the Ain. The charges so framed were read over to him, to which he claimed to be innocent and prayed for trial.
6During trial, the prosecution examined in all 11 witnesses out of 15 cited in the charge sheet. The witnesses were cross-examined by the defence. The defence case as it transpires from the trend of cross-examining the prosecution witness is of innocence; that he was implicated in the case
falsely and that the confession was extracted on duress and coercion.
7On conclusion examination of the prosecution of witnesses, learned Judge of the Tribunal examined the accused under section 342 of the Code, to which he reiterated his innocence and prayed for justice. In addition to that he submitted a written statement explaining his position the evidence available on the record against him. There he stated that police arrested him from his village home at about 9:00 pm on 10.03.2014, blind foalded his eyes with black cloth and pointing a pistal at him compelled him to make confession which was written by the Magistrate.
8However, the learned Judge of the Tribunal on evidence found the accused guilty of offence under both the sections of the Ain, 2000 and sentenced him thereunder as stated hereinabove.
9Mr. Mohammad Imam Hossain Tarek, learned Deputy Attorney General takes us through the evidence and other materials on record and submits that prosecution by evidence of witnesses proved that the condemned-prisoner committed rape upon the victim and thereafter killed her. PW4, a doctor
who conducted autopsy proved the report exhibit-4 which contends several injuries on the private organ of the victim and a circular ligature mark on the neck transverse and ecchymosis on either side of the ligature mark. He (PW4) proved the above injuries in evidence which is the conclusive proof that the victim was raped and thereafter strangulated to death. PWs 1 and 2, the mother and brother of the victim led corroborative evidence that the condemned-prisoner called away the victim in the evening on 11.10.2014 from their house to watch television and thereafter she did not return home. In the next morning her body was found on the pointed gourd field in the condition as abovesaid. The evidence of PWs 1 and 2 is sufficient to hold that the condemned-prisoner raped the victim in the place of occurrence and thereafter strangulated her to death. Apart from the above fact, PW5 a Judicial Magistrate, First Class recorded the confession of the condemned-prisoner exhibit-5. The aforesaid statement is found true and made voluntarily which only can be the basis of convict’s conviction. The Tribunal on assessment of oral evidence and other materials on record correctly found the condemned-prisoner guilty of the offences under relevant
10sections the Ain, 2000 and sentenced him thereunder which may not be interfered with by this Court. The reference, therefore, would be accepted and the appeals be dismissed.
11Mr. Md. Hafizur Rahman Khan, learned Advocate for the condemned-prisoner and appellant in the appeals submits that there are contradictions in the evidence of PW1 with the statements made by her in the FIR as to the calling away of the victim from the house of the informant. There is no independent witness expect PWs 1 and 2, mother and brother of the victim of calling away the victim from her house and there are contradictions as to the decamping of the appellant from his own house. Mr. Khan then submits that police produced accused before the learned Magistrate for recording his confession with an application for taking remand which was rejected subsequently. The condemned-prisoner in reply to his examination by the learned Judge under section 342 of the Code made a brief statement describing the situation under which he was compelled to make confession. The confession so recorded is neither true nor voluntary because it was obtained from him by torture, coercion and threat. Such confession cannot be the basis of appellant’s conviction. It
would be unsafe to relay only on the evidence of PWs 1 and 2 who are interested witnesses. The chain of circumstances of taking away the victim from the house of informant and finding her dead body in the pointed gourd field in the next morning is found incomplete and broken. In the premises above, the reference would rejected and the appeal be allowed.
12To dispose of the reference and the appeals, let us have a blink on the prosecution witnesses.
13PW1 Mst. Khohinur Khatun alias Kohinur, mother of the victim stated that at about 7:00 pm on 11.10.2014 accused Nurul Islam came to their house and called away victim Ritu to watch television. The victim did not return therefrom. Then they rushed to the house of the accused but they found no one there. They started looking for the victim but could not find her out. Rustom Ali (PW10) at about 7:00 am on 12.10.2014 found the dead body of victim in his pointed gourd field tied on a bamboo pole with gamchha. He made hue and cry and she (PW1) rushed there and found the victim dead. Blood was coming out from his private organ, she further found blood clotted on the inguinals of the victim. The accused called the victim away from her house to the field technically, raped her
and throttled her to death to screen the offence. She brought the dead body, police came and held an inquest on it in her presence and she put her signature in the report. She found mark on the throat of victim, scratch marks on her nose and injury on her left neck. She found the private organ of the victim bloodied. Police sent the dead body to morgue for holding autopsy. She proved the inquest exhibit-1 and FIR exhibit-2. In cross-examination by defence, she stated that in the occurrence evening, the accused called away her daughter to watch television but thereafter she did not find her. Police found the dead body in the house of her brother. She lodged the FIR against accused Nurul Islam only. She used to go to the house of the accused to watch television. She had loved the accused and for that reason allowed her daughter to go with him. While they went to the house of the accused in search of her daughter then father of the accused attacked her. She denied the defence suggestion that accused Nurul Islam did not call away her daughter or that she deposed falsely.
14PW2 Kabirul, son of PW1 and sister of the victim stated in the similar line of PW1. She stated that accused Nurul Islam at about 7:00 pm on 11.10.2014 came to their house. He was
then in the house. The accused then called away his sister Ritu for watching television. His sister did not return home. They searched for her sister. He went to the house of Nurul Islam but found the house under lock and key. Neighbour Rustom Ali at about 7:00 am on 12.10.2014 saw the dead body of victim in their field and started hue and cry. They all rushed to the field and found the victim dead tied on a bamboo pole with gamchha. They found blood was staining from the private organ of the victim. They also found clotted blood on the victim’s inguinals. They found blood in the soil also. They took the dead body in the house of his elder maternal uncle. Police appeared there, held inquest and prepared a report. He saw mark of injuries on the right side of victim’s throat and also behind the neck. He found scratch mark on the nose of victim and injury on the left neck. His mother lodged the FIR. He told the fact to police that accused Nurul Islam abducted her sister, raped her and throttled her to death. He was a witness to the inquest exhibit-1. In cross-examination by the defence, he stated that at about 9:00-10:00 pm on 11.10.2014 they went out to search the victim. They did not go the police station at night because they did not suspect that such kind of
15occurrence could be happened. He was sitting in his house and in front of him accused called away the victim from his mother. He denied the defence suggestion that accused Nurul Islam did not call away his sister. He further denied all other material suggestions put to him including the suggestion that they have planted the case falsely.
16PW3 Md. Nazrul Islam, father of the victim stated in the similar line of PWs 1 and 2 as to the finding of the dead body in the next morning and its external condition. He stated that he heard from his wife PW 1 and son PW 2 that the accused called away the victim to watch television. He saw the dead body of victim in the pointed gourd field of Rustom Ali. He was a witnesses to the seizure exhibit-3. He also proved the materials seized from the place of occurrence including a gamchha, a bamboo pole, a pair of pink colour shoe, a green colour pant and blood stained soil. In cross-examination by the defence, he stated that he returned home after 7:30 pm. He went to the house of the accused in search of victim. They filed the case against Nurul Islam only and police recorded the case taking information from them. He went to the place of occurrence in the next morning but they did not find the dead
body there because PW1 took it to victim’s maternal uncle’s house situated nearby. He did not witness the actual occurrence of committing rape and murder. He denied the defence suggestion that accused Nurul Islam did not call away his daughter.
17PW4 Md. Faridul Islam, a Resident Medical Officer (RMO) of Sirajganaj General Hospital at the material time, conducted autopsy of the deceased. He stated that at about 14:30 hours on 12.10.2014 he held autopsy on the dead body and found the following injures:
ଵ
18(i) One " (half) inch width ligature mark on the neck
ଶ
19which was transverse, circular (completely encircling the neck) and at the mid level of the neck. Tinny echymosis found on either sides of the ligature mark.
20(ii) Lacerative injury found around the vaginal canal with bleeding present and posterior fourcette was found teared.
21Hymen-reptured.
22Labia minora-swollen and inflammed.
23High vaginal swab examination shows no spermatozoa.
24Dissection:
25On dissection of the neck parchmentization found under the skin along the ligature mark. Trachea was found highly congested. On dissection of the chest both lungs were found highly congested. On dissection of the Labia minora of the Vulva clotted blood was found under the skin and into the soft tissues which resist washing.
26He passed opinion as under:
27In our opinion the cause of death of the deceased was due to asphyxia as a result of strangulation which was antemortem and homicidal in nature. She was raped before strangulation and death.
28In cross-examination by the defence, he stated that in the report he did not state the age of injuries. The injury caused by strangulation and rape are different. The age of injuries would be different. He did not mention which injury was caused earlier. But it was mentioned that she was raped before her death. Injury 1 was caused by material like rope. A similar nature of ligature mark may be found if gamchha is twisted like rope. He denied the defence suggestion that the autopsy report is against medical jurisprudence. He further denied of deposing falsely.
29PW5 Md. Julfikar Ullah, a Judicial Magistrate, First Class posted to the Magistracy of Sirajganj at the material
time, recorded the confession of accused Nurul Islam. In evidence he stated that an SI of Sadar police station produced the accused before him. He explained him the consequence of making confession in Bangla and then allowing him time for reflection recorded his statement. The physical condition of the accused was well. The statement made by the accused was true and made voluntarily. He read over the statement to the accused who put his signatures therein. He proved his signatures and that of the accused in exhibit-5. In crossexamination by the defence, he stated that the accused was not taken on police remand. He recorded the statement at about 4:00 pm in his chamber and no police personnel was present there. The accused did not make his confession on coercion and threat. He denied the defence suggestion that police tortured the accused after his arrest or police was present at the time of recording the confession.
30PW6 Md. Awal, a maternal uncle of the victim stated in the similar line of PW3 as to the fact of calling away the victim in the evening on 11.10.2014 from informant’s house and thereafter her missing. He further stated in the similar line of recovery of the dead body from the place of occurrence
field and finding injuries on the person of the victim including her private organ. Police held inquest in his presence. He proved the inquest exhibit-1, seizure of wearing apparel of the victim, a gamchha, the bamboo pole, blood stained mud and others under seizure exhibit-3. He also proved the alamots material exhibits-I-V. In cross-examination by the defence, he stated that he did not see to call away the victim from informant’s house. Police went to the place of occurrence. At the time of lodgment of the FIR he was with the informant. He did not know the number of accused named in the FIR. Police took his signature in two separate papers. He denied the defence suggestion that he knew nothing and deposed falsely.
31PW7 Md. Samidul Islam alias Samidul, a neighbour of PWs 1, 2 and 3 and a cousin of PW1 stated in the similar line of PWs 3 and 6 as to the fact of accused’s calling away the victim from her house which he heard from PW1. He saw the dead body in the field and in the condition as stated by other witnesses. In cross-examination by the defence, he stated that he heard about calling away the victim at about 9:00 pm. The dead body was brought in the house of Al Mahmud, victim’s maternal uncle. He did not witness the occurrence of
committing rape and murder. He denied the defence suggestion that he deposed falsely.
32PW8 Sima Khatun alias Sima, a cousin of the victim stated in the similar line of PWs 3, 6 and 7 as to the calling away of victim, recovery of her dead body from the occurrence field and condition of the body as stated by the other witnesses. She was a witnesses to the inquest exhibit-1. In cross-examination by the defence, she stated that she did not see the accused to call away the victim but she heard it from her aunt, the informant. Police went in the place of occurrence after one hour of receipt of the news. They found the dead body in the house of Al Mahmud. The case was filed against three accused but she could not remember the names of other accused. She denied the defence suggestion that there was enmity with PW1 and the accused and consequently the case was filed falsely. She denied all other material suggestion put to her.
33PW9 Anwara Begum alias Anera, a sister of the informant and maternal aunt of the victim, stated in the similar line of PWs 3, 6, 7 and 8 as to the calling away victim by accused Nurul Islam; that they searched for the victim in the
occurrence night and that they recovered the dead body from the field. She stated describing the condition of the dead body she found as stated and deposed by other witnesses who have witnessed the condition. She was a witnesses to the inquest exhibit-1. In cross-examination by the defence, she stated of staying at home in the evening on 11.10.2014. She received the news afterwards. She rushed to the occurrence house. She did not see accused Nurul Islam to call away the victim. She heard that accused Nurul Islam called away the victim and killed her after committing rape. Police took her signatures in some papers but she could not say what were written in those papers. She denied all other material suggestions put to her.
34PW10 Md. Rustom Ali alias Ustom, a neighbour of the victim and owner of the pointed gourd field wherefrom the victim was recovered dead, stated in the similar line of PW3. He stated that the accused called away the victim from her house in the evening on 11.10.2014. He further stated that at about 7:00 am on the next morning they went to the field and found the dead body of victim. He make hue and cry, the people rushed there and saw the dead body of victim tied on a bamboo pole with gamchha. Her pant was found beside her
body. They found blood on victim’s private organ as well as inguinals and injures on her body. He heard that on the previous evening accused Nurul Islam called away the victim to watch television and killed her after committing rape. He proved the seizure of articles seized under exhibit-3. In crossexamination by defence, he stated that at about 10:00 pm he came to learn that the victim was found missing. The informant was crying. He did not here the fact of calling away victim in the night but he heard it in the morning. His field was adjacent to his house. He and his brother had gone to the field first and found victim’s dead body there. Police came and visited the occurrence field. He did not see the accused to call away the victim and kill her after committing rape.
35PW11 Md. Golam Mostafa, Investigating Officer stated that he visited the place of occurrence, held inquest on the body, prepared a report and sent a dead body to the morgue for holding autopsy. He prepared the sketch map and index exhibits-6 and 7, seized alamots under seizure exhibit-3 and recorded the statements of witnesses under section 161 of the Code of Criminal Procedure (the Code) and. He arrested the accused who confessed his guilt to the learned Magistrate. In
the investigation, he found prima facie case against the accused and submitted a charge sheet under sections 7 and 9(2) of the Ain, 2000 against him on 16.11.2014. In crossexamination by the defence, he stated that he did not find any missing diary in the police station about victim’s news of disappearance. He found the dead body in the courtyard of the house of Al Mahmud. He held inquest and sent the body to the morgue. He did not send the alamots to the finger expert of forensic department. He did not collect any finger print on the dead body. He did not collect sparm from the dead body. At that time no forensic lab was established in that area. He did not find any other witness of calling away the victim except informant. There is no ocular evidence of committing rape and killing the victim. They arrested Nurul Islam at about 9:00 pm on 12.10.2014 from village Sibnathpur. He did not arrest other accused named in the FIR. He filed application to the learned Magistrate on 13.10.2014 for recording the confession of the accused and prayed for his remand on the same day. He denied the defence suggestion that he told the accused to make confession, otherwise he would take him on remand. He denied that upon physical and mental torture the accused was
36bound to make confession. He denied all other material suggestions put to him.
37These are all evidence of prosecution witnesses.
38We have considered the submissions of the learned Deputy Attorney General and Mr. Md. Hafizur Rahman Khan, learned Advocate for the appellant and gone through the evidence and other materials on record.
39To bring home the charge against the condemnedprisoner under sections 7 and 9(2) of the Ain, 2000 the prosecution in all examined 11 witnesses; of them PW4 Md. Faridul Islam (doctor), PW5 Md. Zulfikar Ullah (magistrate) and PW11 Md. Golam Mostafa (IO) are formal witnesses. PW1 Mst. Kohinur Begum is the mother of victim, PW2 Kabirul is the brother of victim and PW3 Md. Nazrul Islam is the father of victim. PWs 6, 7, 8, 9 and 10 are the relations and neighbours of the informant. The informant mother stated in the FIR that at about 7:00 pm on 11.10.2014, the condemnedprisoner came to their house and called away victim Ritu to watch television and thereafter the victim did not return. The aforesaid fact has been corroborated by the evidence of PWs 1 and 2, the mother and brother of the victim. They stated in
evidence that in their presence, the condemned-prisoner called away the victim on the pretext of watching television. Even in cross-examination by the defence PW1 stated that they used to go to accused’s house to watch television. She had loved the accused and consequently she allowed the victim to go with him. PW2 in cross-examination by the defence also stated that he was sitting in his room while the accused in front of him called away the victim from his (PW2) mother. The aforesaid firm evidence of PWs 1 and 2 proves the fact that condemnedprisoner Nurul Islam called away the victim in the evening on 11.10.2014. The evidence of PWs 1 and 2 was not shaken in any manner in the cross-examination of defence. The other public witnesses PWs 3, 6, 7, 8, 9 and 10 led corroborative evidence that they heard from PW1 that in the occurrence evening condemned-prisoner Nurul Islam called away the victim from their (PW1’s) house and thereafter she was found missing. Most of the witnesses looked for the victim even in the house of the condemned-prisoner but they could not find her out. The condemned-prisoner was absent from his house. All the public witnesses in a voice told that the body of the victim was found at about 7:00 am on the next morning in the
40pointed gourd field of PW10 Rustum Ali. PW10 after finding the dead body in the field made hue and cry and then everybody rushed there and found the dead body of the victim tied on a bamboo pole with a gamchha. Her pant was lying beside her body, blood was coming out from his genital organ and clotted blood was found in both her inguinals. They also found scratch mark on the nose and neck of the victim, a ligature mark on the throat and blood on the soil. PW4, the doctor who held post mortem examination on the dead body of victim found several mark of injuries on the person of the deceased. Among the injuries he found a circular ligature mark at the mid level of the neck. Tinny echymosis was found on either side of the ligature mark. They found lacerative injuries around the vaginal canal with bleeding present, posterior fourcette was found torn, hymen was ruptured and labia minora were found swollen and inflammed. He prepared and issued the autopsy report exhibit-4 which has been corroborated by the evidence of PW4. The aforesaid injuries found on the private organ and throat of the victim supports the commission of rape upon her and killing by strangulation. The condemned-prisoner admitted of committing the offence
in his confession exhibit-5 recorded by PW5 Md. Zulfiqur Ullah, a Judicial Magistrate, First Class. The confession he made is reproduced below-""¢la¥ (hup 7 hRl) Bj¡l fË¢ahn£z ¢la¥l i¡C L¢hl Hl p¡b Bj¡l nœ¦a¡ ¢Rmz L¢hl Bj¡L Bj L¡Va ¢Nu q¡a O¡J (BO¡a) L¢lu¡¢Rmz aMe B¢j (®Rs¡) h¢mu¡¢Rm¡j ®a¡L j¡la f¡¢l Bl e¡ f¡¢l h¡s£l ®m¡LL j¡¢lhz OVe¡l a¡¢lM 11.10.2014 påÉ¡ 7×00 V¡l ¢cLz B¢j ¢la¥L ®V¢m¢ine ®cM¡l Lb¡ h¢mu¡ Bj¡l p‰ L¢lu¡ l¦Øa¥j Hl fVm ®ra ¢eu¡ k¡Cz ®pM¡e ¢eu¡ ¢la¥l fÉ¡¾V M¤¢mz a¡lfl a¡L 1j h¡l doÑe L¢lz 2u h¡l doÑe L¢lm a¡q¡l AeL lš² fsz aMe ¢la¥ j¡ h¢mu¡ BJu¡S ¢cu¡ E¢Wm B¢j a¡q¡l Nm¡ Q¡¢fu¡ d¢lz ¢LR¤re es¡Qs¡ Ll¡l fl ®p ¢Øql qCu¡ ®Nm B¢j a¡q¡L fVm ®ral HL f¡n ¢eu¡ ¢Nu¡ h¡ynl M¤y¢Vl p¡b N¡jR¡ ¢cu¡ Nm¡ ®fQ¡Cu¡ l¡¢Mu¡ B¢pz B¢j ¢la¥L qaÉ¡ L¢lu¡¢Rz Bj¡l p¡b JC pju Bl ®LE ¢Rm e¡z''. On going through confession exhibit- 5, we find that PW5 recorded the statement in compliance with the provisions as were required by the law. He filled the columns of the recording form and made statements as to its truth and voluntariness. In the confession, the condemnedprisoner gave a vivid picture of calling away the victim, taking her to the field, committing rape upon her and strangulating to death which are found in consonance with the autopsy report exhibit-4 and evidence of PW5 Magistrate. Although the
41defence tried to make out a case that the confession was extracted on duress and coercion but in cross-examination by defence PW5, learned Magistrate and IO PW11 denied those suggestions. The statement filed by the condemned-prisoner in writing at the event of his examination under section 342 of the Code that police tortured him after his arrest and extracted the confession being isolated and not founded cannot be believed.
42In view of the discussion made hereinabove, we find that the condemned-prisoner called away the victim from her house, took her to the pointed ground field of PW10, committed rape upon her and in order to screen the offence strangulated her to death with gamchha. The prosecution successfully proved the charge against the condemnedprisoner under section 9(2) of the Ain, 2000 beyond reasonable doubt of committing rape followed by murder by strangulation. But considering facts and evidence on record, we find that the conviction and sentence under section 7 of the Ain, 2009 imposed by the learned Judge of the Tribunal upon the condemned-prisoner cannot be sustained in law because calling away of victim was usual of the natural course and
subsequent main offence under section 9(2) of the Ain has been proved.
43However, we find that this is a brutal murder of a female child eight years of age. The condemned-prisoner called away her on the pretext of watching television, took her to the field, raped her forcefully for twice and then strangulated her to death to screen the offence and wraped the throat of the body on bamboo pole with gamchha. The offence is brutal and heinous in nature. PW10 Rustom Ali who at first saw the dead body in his field was seriously socked saying, ""¢hivp qaÉ¡L¡ä m¡n ®cM Bj¡l M¤h M¡l¡f m¡N¢Rm''z In the view of the brutality of the offence, we find that the period of custody of the condemned-prisoner during trial and that he remained in condemned cell for more than 7 (seven) years cannot be a ground to commute his sentence of death. We find no mitigating and extenuating circumstance to commute the sentence of death.
44Consequently, the reference is accepted. The sentence of death imposed by the Tribunal is hereby upheld. The criminal appeal is, therefore, dismissed and the jail appeal is accordingly disposed of.
45Communicate this judgment and order and send down the records of the Tribunal.
46K.M. Rasheduzzaman Raja, J.
I agree
47Rajib
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