Sukur Ali vs State (2021) 73 DLR

Fact of the case:

One Md Ohidul Islam , officer – in- charge of Dhupchachaia police station, Bogra lodge First Information Report stating that pursuant to GD entry no 367 dated 10-6-2006 made on the basis of an information received from one Aynal Bepari , a union parishad Member, that a dead body of an unknown woman is following on the water of “ Iramoti khal” , he accompanied by other police constables went to the said khal and found the dead body, taking pictures of the dead body, preparing the inquest report , preparing sketch – map to the morgue for post – mortem and seized all dresses and the wearing apparels of the dead body. The person’s present there could not identify the same.

Thereafter during investigation came to the said police station on 26-6-2006, upon seeing the wearing apparels of the deceased recognised to be of the said Mehbuba , the mother of khokon. Accordingly in course of investigation the investigating officer recoded the statements of witness under section 161 of the CRPC and apprehended the accused Sukur Ali on 12-7-2006 who confessed his guilt by disclosing that the victim Mehbuba was his second wife. That on 8-6-2006 in the name of taking her to the doctor for treatment he took the victim Mehbuba at the place of occurrence “Iramoti khal” side and killed her by throttling and to conceal the dead body he immersed the same into after of that “khal”.

Then the accused Sukur Ali was place before a First class Magistrate for recording his confessional statement under section 164 of the CRPC and the Magistrate recorded his statement accordingly. After the investigating officer submitted charge sheet aganist the accused Sukur Ali under 302/ 201 of the penal code. The court was transferred to the court of Additional session judge.

Issue of the case:

1. Whether Sukur Ali actually liable for punishment for murder?

2. Whether it is amount to culpable homicide or murder?

 

Decision of the case:

On conclusion of the trial the learned Additional sessions judge, upon considering the evidence and the materials on record found the accused petitioner guilty and convicted him under section 302 of the penal code and sentenced him to death and to pay a fine of taka 20,000 by judgment and order dated 16-6-2010.

A Division Bench of the High Court Divison heard the death reference and the aforesaid two appeals together and on consideration of the materials on record reject the death reference and dismissed both the apppeals but altered the sentence under section 302 of the penal code and commuted and substituted the death sentence by imprisonment for life.

Justification of the case:

A division bench of the High Court Division provides the following justification for its decision:

 

1. The learned senior council appearing on behalf of the convict petitioner submits that the High Court Division erred in law in relying upon the confessional statement of the petitioner which is not true and voluntrary rather the same has been obtained by duress, coercion and torture.

2. There is no eye- witness of the ocurrence and since admittedly the actual cause of death could not be ascertained by the doctor as the dead body of the victim was highly decomsod and since there is no ocular evidence that the dead body is that of the victim Mehbuba.

 

3. FIR was lodged on 10-6-2006 by the officer in charge Dupchachia police station, Bogra on the basis of an information received from Aynal Bepari, as to floating of a dead body of a woman on the Iramoti khal. In this respect on thing is to noted that the prosecution could not give the actual date of death.

4. From the inquest as well as the post-mortem report read with the evidence the doctor, it is clear that the dead body was highly decomposed and as such , from the post- mortem report it appears that injuries could not be specifically mentioned.

 

5. The High Court Division observed that the convict petitioner prior to commission of an offence was not in cool brain rather there was a provocation from the side of the victim. Considering the facts and circumstances the High Court Division found the convict- petitioner guilty under section 304 of the penal code not under section 302 of penal code as the facts and circumstances of the case clearly proved that the death was caused by convict- petitioner which amounts to culpable homicide not amount to murder.

Written by---
Mahmuda Ahmed
Department of Land Management and Law
Jagannath University, Dhaka