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Tender age is also a factor of consideration

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14th-Apr-2018       
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High Court Division
(Criminal Appellate Jurisdiction)
Md Habibul Gani J
Md Akram Hossain Chowdhury J
Tanjila Begum .............
........ Convict-Appellant
vs
State...........Respondent*
Judgment
September 8th, 2016
Code of Criminal Procedure (V of 1898)
Section 342
The appellant is a lady of twenty years as it evident from the form of examination under Section 342 as and when she was examined and she was never enlarged on bail and is in Jail custody since of her arrest in the which is for near about 4 (four) years 10 (ten) months and by this time that will be for near about 5 (five) years and she is spending there her tendering age of her life with mental agony. Considering the tendering age and Custudy of the appellant we are inclined to reduce her sentence to which as she by this time has already served out and also has been undergone.     . ..... (20)
AM Md Azizul Haque, Advocate-For the Convict Appellant.
Rona Naharin, DAG, with Yesmin Begum Bithi, AAG and Monju Naznin, AAG-For the Respondent State.
Judgment
Md Akram Hossain Chowdhury J : This Jail appeal under Section 420 of the Code of Criminal Procedure is directed against the Judgment and order of conviction and sentence dated 28-11-2013 passed by the learned Sessions Judge, Gopalgonj in Sessions Case No. 75 of 2012 convicting the appellant under Section 302 of the Penal Code and sentencing her to suffer imprisonment for life and also to pay a fine of Taka 10,000 in default to suffer simple imprisonment for 6 (six) months more.
2. The prosecution case in brief is that the PW 1, Faizur Rahman Biswas being informant lodged an FIR with Tongipara Police Station on 14-12-2011 alleging inter-alia that he got married one Moriam Begum near about five years before the incident and in their wedlock a male child namely Mesba Biswas was born but due to misunderstanding divorce was held between them near about one year ago and pursuant to the Court's order he kept his three years old son with him. Later on 14-7-2011 he got married the accused appellant Tanjila Begum who looked after his son Mesba Biswas as like as his own son. However, the said divorcee wife of the informant, Moriom Begum now and then through the informant's elder brother wife PW 3 Monira Begum collected the news of his son Mesba over Mobile phone and talked with them. On 9-12-2011, Friday at about 7-30 am the informant went to his work place at Patgati Bazar and at about 9-25 am his wife accused Tanjila Begum over telephone called him to come hurriedly at Tongipara Hospital, as because the position of Mesba seems to be abnormal and getting such information the informant went to the Tongipara Hospital and found the dead body of his son Mesba on the Stretcher kept at the emergency of the hospital and having came to  learn from his elder brother Hafizur that while upon searching they could not found his son Mesba anywhere but soon after they saw a slipper was floating on the water of Solaiman Biswas's pond; from where after searching under the water they got the dead body of Mesba and rushed him to the Tongipara Hospital where the Doctor on duty declared him dead. The informant PWI while in writing informed the matter to the Tongipara Police Station an Unnatural Death Case being No.4 of 2011 dated 9-12-2011 was started. Then the police after preparing inquest report of the dead body sent the same to the Gopalgonj Central Hospital for its autopsy. Later on 12-12-2011 while the behavior of the informant's wife Tanjila Begum was found suspicion, the informant and other inhabitants of their house informed the matter to the investigating officer of the case and then the investigating officer at the evening took her in their custody for interrogation. At night of that day while the informant along with his brother Hafizur and uncle PW 6 BM Towfiqul Islam went to the police station taking supper with them for the accused the investigating officer asked the accused Tanjila Begum about the incident, while she in their presence confessed her guilt that she on 9-12-2011 became jealous on provocation that the informant's divorcee wife Moriom Begum in her sons affection may have to come again in the informant's house; as such she murdered the deceased Mesba by strangulation and for hiding the dead body she thrown out the same to a pond belongs to Solaiman Biswas. Then on the following day i.e. on 13-12-2011 the accused appellant Tanjila Begum made her confessional statement before the Magistrate concerned under Section 164 of the Code of Criminal Procedure.
3. Stating the above such facts the informant lodged the FIR with Tongipara Police Station which gave rise to Tongipara Police Station Case No.3 dated 14-12-2011 under Sections 302/201 of the Penal Code.
4. The police after holding investigation into the case preparing the sketch map and upon taking consideration of 161 statements of the witnesses along with the confessional statement of the accused submitted the chargesheet being No. 12 dated 31-1-2012 against the sole accused convict appellant Tanjila Begum under Sections 302/201 of the Penal Code.
5. In due course while the case record was transmitted to the Court of Sessions Judge, Gopalgonj it was registered as Sessions Case No. 75 of 2012 and the learned Sessions Judge upon taking cognizance against the accused appellant Tanjila. Begum under Sections 302 /201 of the Penal Code took the case in his own file for its trial and disposal. Then while the charge was framed and so read over the same to the accused appellant she pleaded not guilty and claimed to be tried.
6. At the trial out of 17 (seventeen) chargesheeted witnesses the prosecution examined 10 (ten) who were also cross-examined by the defence and after completion of the prosecution witnesses the accused appellant while was examined under Section 342 of the Code of Criminal procedure she claimed her innocence again; however, declined to adduce any defence witness.
7. From the trend of cross-examination of the prosecution witnesses the defence case as it appears that the accused appellant in no way involved with the murder of the deceased Mesba but she was falsely implicated in the case; the informant for taking his divorcee wife again in his house at the instigation of his other family members filed a false case against the accused appellant who is very much innocent.
8. The learned Sessions Judge, Gopalgonj considering the material and the evidence on record found the accused appellant guilty under Section 302 of the Penal Code and sentenced her to the aforementioned imprisonment along with the fine. The convict appellant through the Jail Super of Gopalgonj jail preferred this jail appeal being No. 30 of 2014 challenging and impugning the said judgment and order of conviction and sentence dated 28-11-2013 passed against her by the learned Sessions Judge, Gopalgonj in Sessions Case No.75 of 2012.
9. Mr AM Md Azizul Haque, the learned Advocate appointed by the Supreme Court Legal Aid office appearing for the convict appellant submits that most of the prosecution witnesses are the family members of the informant and they are very interested witness in the case who have been instigated the informant in accusing the appellant in order to return back the divorcee wife of the informant in their house again and that has been reflected in their cross-examination while suggestions have been put on to them on that regard. He further submits that there is no eye witness in the case to prove the allegation as brought against the present appellant and though the sentence was awarded only relying on the basis of the appellant's confessional statement but that was not held voluntarily; however, the learned Sessions Judge disbelieved the said factual aspects of the case and convicted the appellant for committing murder of the deceased. He also submits that the appellant herself disclosed that she loved the deceased boy and looked after him as his own son and also took care of him from the very beginning.
The prosecution witnesses were also in their testimony admitted the said facts that the convict-appellant sincerely looked after and took care of the deceased child as his own son. Moreover, the convict appellant is of a tendering age of between twenty years while she was tried in the case. Therefore, she may be acquitted from the charge as leveled against her. As such, the learned Advocate for the appellant urges that the impugned judgment and order of conviction and sentence dated 28-11-2013 convicting the present appellant is liable to be set aside.
10. In opposing the above submissions as advanced by the learned Advocate for the appellant, Ms. Yeasmin Begum Bithi, learned Assistant Attorney-General appearing for the state submits that though, there was no eye-witness in the case but the convict appellant herself made a confessional statement before the Magistrate concerned admitting her guilt which was happened to be voluntarily and the PW 9 the Magistrate himself deposed in the case and categorically stated that the confessional statement made by the convict appellant was very much voluntary and he has taken all legal formalities in recording the above confessional statements giving the accused appellant enough time to think about her confession. Learned AAG further submits that the prosecution witnesses by their corroborative evidence to each other has been able to prove the case and other than the family members of the informant the PW 5 and 6 being neighboring persons supported the prosecution case and the doctor PW 7 found that the deceased was murdered by strangulation who also supported and proved the postmortem report. Moreover, the postmortem report and the inquest report supported the facts as confessed by the appellant in her 164 statement reflecting that in the postmortem report, a slite cutting round mark was found at the neck of the deceased. She further submits that as per assertion of the convict appellant in her 164 statement that the jute yearn along with the thread which was at the neck of the deceased with amulet were used in committing the murder by strangulation; those materials were also exhibited in the case as material exhibit. Therefore, the prosecution was very much able to prove their case beyond a reasonable doubt. As such, she urges that the impugned judgment and order of conviction and sentence dated 28-11-2013 passed by the learned Sessions Judge, Gopalgonj deserves no interference.
11. Now let us examined how and what manner the prosecution by adducing their evidences claimed to have been able to prove the prosecution case beyond a reasonable doubt as also decided by the learned Sessions Judge, Gopalgonj in the impugned judgment and order of conviction and sentence dated 28-11-2013.
12. In all 10 (ten) prosecution witnesses were examined in the case who are the PW 1 Faizur Rahman Biswas is the informant of the case who also happened to be the father of the deceased as well as husband of the convict appellant has narrated the FIR case in his testimony; PW 2, Khairunnessa the grandmother of the deceased in her testimony has supported the prosecution case stating that she ultimately trace out the dead body of the deceased from the pond.
This witness also identified the seizure list and also her signature thereon. PW 3 & 4, Monira Begum and Nargis Begum are the aunties of the deceased who also supported the prosecution story and identified the seizure list and of their signatures thereon. PW 5, Nurjahan Begum a neighbouring lady of the place of occurrence stated in her testomony that she coming to the place of occurrence heard about the incident.  PW 6, B.M. Towfiq Islam who also a neighboring person of the informant gave his testimony supporting the prosecution case. PW 7, Dr. Niaz Mohammad who held the autopsy of the deceased child and issued the postmortem report stating therein "A circular continuous ligature mark seen around the neck with sub-continuous congestion, two small (1/2" x 1/2" in diameter) abrasion seen left angle of the mouth and upper lip. Another abrasion seen (1/2" x 1/2") near right side of the neck". And therefore, in his opinion he opined- "Cause of death was due to asphyxia resulting from strangulation which was homicidal and antemortem in nature".
13. PW 8, SI Md Ekram Hossain has gave the testimony in the case who investigated the unnatural death case No. 4 dated 9-12-2011 as well as the subsequent murder case being Tongipara Police Station Case No.3 dated 14-12-2011; he also prepared the inquest report of the dead body, filled up the FIR form and ultimately he after investigation submitted the chargesheet in the case against only the present accused appellant on 3-1-2012 under Sections 302/201of the Penal Code. This witness also proved the FIR form as Ext. 6 and his signature thereon as Ext-6/1 and 6/2 who also proved the inquest report as Exts.l and indentified his signature thereon as Ext.-l/3 and the material Exts. 1-11 were also identified by this witness.
14. PW 9, Emdadul Hoque, the then Senior Judicial Magistrate who recorded the 164 statement of the accused appellant has deposed in the case and he identified the said statement as Ext.-9 and his five signatures thereon as Exts.-9-1/9-5 and two signatures of the accused thereon as Ext.-9/6-9/7.
15. PW 10, Constable Mozibur Rahman who accompanied the dead body of the deceased was also deposed in the case. He also identified the seizure list of the case as Ext.-l 0 and his signature thereon as Ext.- 10/1.
16. However, though the defence cross-examined the above prosecution witnesses but they could not make any shaky to those witnesses. Even, though a couple of suggestions have been put to them that the confessional statement of the accused appellant was not voluntary and the informant to take back her earlier divorcee wife again in his house falsely implicated the present appellant in the case; those suggestions also have been denied by the prosecution witnesses as being not true.  Having though there is no eye -witness in the case but the confessional statement made by the convict appellant admitting her guilt has been supported by the corroborating prosecution witnesses and the testimony of the informant narrating the prosecution story has also been supported by the other prosecution witnesses. Thus, we do not find any illegality or infirmity as to be committed by the trial Court.
17. However, from the trend of cross-examination of the prosecution witnesses and apparent from the face of the record it appears to us that there was u provocation to the effect that the informant's divorcee wife due to the affection to her· son may have to come again in the informant's house; as because she now and then over mobile phone touched with the informant's family and there was an apprehension in the mind of the convict appellant that the said lady due to affection of his son deceased Mesba may have to come again in the informant's house. Which gave rise to her mental torture and upon such mental anxiety she killed the baby deceased however admittedly though she loved and looked after the deceased child as his own son from the very beginning. This fact has come out from the confessional statement of the appellant itself as well as from the trend of cross-examination of the prosecution witnesses.
18. In the premises as above it has come to our believe that the murder was though happened but it was happened due to provocation. Thus, it comes within the exception of Section 300 of the Penal Code. As because a provocation was came out from the behavior and conversations over telecommunication between the prosectation witnesses i.e. the family members of the informant with his earlier wife namely Moriom Begum who happened to be the mother of the deceased child and by such provocation the convict appellant became mentally shocked and then the murder was took place on that provocation. Therefore, we are in a considered view that the conviction of the present appellant to be altered and she would be guilty of murder within the ambit of part-II of Section 304 instead of Section 302 of the Penal Code and accordingly the sentence of the appellant to be commuted to a lesser than of the imprisonment for life along with a fine as imposed against her under Section 302 of the Penal Code by the impugned judgment.
19. Having regards the above facts and circumstances of the case and the discussions made herein above, we are of the view that the impugned judgment and order of conviction and sentence dated 28-11-2013 passed by the learned Sessions Judge, Gopalgonj in Sessions Case No.75 of 2012 is liable to be interfered and modified as opined above. 20. It transpires from the record that the convict appellant is a lady of twenty years as it evident from the form of examination under Section 342 as and when she was examined under the said Section of the Code of Criminal Procedure and she was never enlarged on bail and is in Jail custody since of her arrest in the case on 12-12-2011 which is for near about 4 (four) years 10 (ten) months and by this time that will be for near about 5 (five) years and she is spending there her tendering age of her life with mental agony. Considering such of the tendering age and custody of the appellant we are inclined to reduce her sentence to which as she by this time has already served out and also has been undergone.
21. In the result, the appeal is dismissed with modification. The impugned judgment and order of conviction and sentence dated 28-11-2013, so far it relates to the conviction of the present appellant, is upheld with modification. The conviction of the present appellant under Section 302 of the Penal Code is hereby altered to one of under Section 304 part 11 of the Penal Code and therefore the sentence of imprisonment for life of the present appellant is reduced to a sentence of 5(five) years as she has already been served out by this time as mentioned hereinabove and the imposition of fine awarded to the convict appellant as of Taka 10,000 in default to suffer simple imprisonment for 6 (six) months more is hereby waived as well.
22. The Jail authority concerned is directed to set free the appellant Tanjila Begum, wife of Faizur Rahman Biswas and daughter of Late Tofazzel Biswas of Gimadanga, Police Station Tongipara, District-Gopalgonj forthwith, if she is not wanted to any other case.
Send down the Lower Court's record with a copy of this judgment and order to the Court below as well as to the jail authority concerned, at once, to take necessary steps on that regard.

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