State vs Shahadat Hossain (2021) 73 DLR 278

Fact:

 

Babar Ali Pramanik came back from Saudi Arabia for his daughter’s wedding with an amount of 2500 Riyal and was kept in the custody of his daughter Momtaz Begum on 6-6- 2002. His cousin Mukhlesur Rahman requested to send his daughter (Momtaz Begum) to stay with his son's wife shyamoli Begum would be alone if he went to Sirajganj. Accordingly, Shyamoli took Momtaz to their house at about 8:00 p.m. But Momtaz did not return home the next morning. Shyamoli said that Momtaz went back home at night from their house after a little while staying over there. The victim Momtaz was finally found dead in the field and the money was not found. The father of the victim lodges FIR under section 364/ 302/ 34 of the Penal Code. Police submitted charge sheets against Shahadat Hussain and Shyamoli Begum under sections 7 /9(2) and 30 of the Nari-O- Shishu Nirjaton Daman Ain, 2002.

 

Issue:

 

1. Is the accused convicted under sections 7/ 9(2) and 30 of the Nari-O-Sishu Nirjatan Daman Ain, 2000?

 

2. What is the post-mortem report of the case?

 

3. What is the statement of the accused Sahadat Hussain?

 

4. Is the accused convicted under section 302 of the Murdering Penal Code?

 

Decision:

Shyamoli Begum is not guilty in this case. Accused Shahadat Husain is liable for culpable homicide not amounting to murder and is liable to be punished under section 304 part (II) of the Penal Code. Accused Shahadat Hussain is sentenced to rigorous imprisonment for a period of ten years with a fine of fifty thousand taka in default to suffer rigorous imprisonment for one year more.

 

Justification:

 

(a) Section 7 is related to the abduction. To be abduction there must be forceful or deceitful compels. In this case, the accused is not guilty of abduction because the victim going to Shahadat Hussain who is the lover of the victim. They both gave a decision on 5th June to flee at 10:30 p.m. on the day of the occurrence.

 

(b) Section 9 is related to rape after Murder. If the perpetrator kills her after rape then leaving her being dressed up as before. It is difficult to believe because the perpetrator after the crime never waits in the spot for a single moment. Under such circumstances, it is very hard to believe that the victim Mumtaz Begum was killed after rape. The charge of rape and abduction under Nari-O-Shishu Nirjaton Daman Ain, 2000 has not been proven beyond reasonable doubt by the prosecution witnesses. The court can travel from the case Nari-O-Shishu Nirjaton Daman Ain to the Penal Code.

 

Doctor Kazi Golam Muklesur Rahman examines the dead body of the victim. They found eleven injuries inflicted on the person of the victim and the cause of death cited due to Asphyxia which is ante-mortem and homicidal in nature. The dead body is fully dressed.

Before the confessional statement of accused Shahdat Hussain all the witnesses of the case gave doubtful statements. The case is going to be more confusing. When the first-class Magistrate recorded the confessional statement the facts of the case were clear. Accused Sahadat Hussain’s statement that Momtaz(victim) and he fell in love 6 months ago. He had a physical relationship with her even after marriage. They both decide on 5th June to flee at 10:30 p.m. on the day of the occurrence. They met that night near the Shyamoli’s house and they talked about how much money Momtaz bought to flee away. Momtaz had only to 200 taka. He then wanted to go back but Momtaz did not agree with him rather she asked to kill her. She would not go back. An altercation followed between them at that moment At one stage being enraged he killed her by taking her scarf around the nick.

 

Section 302 of the Penal Code deals with the punishment of Murder. According to Section 300 to commit a Murder there must be the intention and pre-plan. But in this case, nothing is found like preparation or pre-plan to kill the victim in any way. If there were any pre-plan or premeditation then he must have some weapons to overcome his vision. The post-mortem report also said that no cause of death by sharp or any other heavy weapon. Rather it is found in evidence that the victim was done to death trying her scarf around her neck. This vision of evidence is similar to the confessional statement of the accused. The accused person is liable under Section 299 of the penal code,1860 to be culpable of homicide, not murder.

Written by---
Md. Sobuj Ali
Department of Land Management and Law
Jagannath University, Dhaka