Supreme Court of Bangladesh

High Court Division

[Criminal Appellate Jurisdiction]

Present:

Mr. Justice S. M. Emdadul Hoque

And

Mr. Justice Md. Bashir Ullah

Death Reference No. 130 of 2017

with

Jail Appeal No.296 of 2021

The State

… petitioner

-Vs-

Md. Rafiqul Islam Rafique

… condemned-prisoner

Mr. Arobinda Kumar Roy, Deputy Attorney General with Mr. Zahid Ahammad (Hero),

Mr. Abu Naser (Swapon) and

Mr. Mirza Mohammaed Soyeb Muhit, AAGs

---for the State

Mr. Md. Hafizur Rahman Khan, State Defence Lawyer

... for the condemned-prisoner. Heard on 12.09.2023 and 13.09.2023

Judgment on 19.09.2023.

Md. Bashir Ullah, J.

The Additional Sessions Judge, 2nd Court, Kishoreganj has made this death reference under Section 374 of the Code of Criminal Procedure (Code) for confirmation of the death sentence awarded upon the condemned-prisoner Md. Rafiqul Islam Rafique on 28-09-2017 in Sessions Case No.188 of 2016 arising out of Bhairab Police Station case No. 30 dated 24.04.2015 corresponding

to G.R No. 302(2) of 2015 under section 302 of the Penal Code, 1860 with a fine of Tk.5000/-.

The condemned-prisoner preferred Jail Appeal No. 296 of 2021 through the concerned jail authority. The Jail Appeal filed by the condemned-prisoner challenging the judgment and order is heard analogously with the death reference and disposed of by this judgment.

The prosecution case, in brief, is that PW 1 Md. Kamal Miah, the younger brother of the deceased lodged the First Information Report (FIR) with Bhairab Police Station stating, inter alia, that the deceased Md. Jamal Uddin worked as member of truck rent provider association at Meghna ferry ghat under Bhairab police station. Accused Rafiqul Islam Rafique had a grocery shop at Meghna ferry ghat. The accused owed Taka 300 from Deen Islam, nephew of the accused against purchase from his shop. The deceased Md. Jamal Uddin and the said Deen Islam used to spend time together. On the failure of the accused to realise the money from Deen Islam despite repeated demands, the victim Jamal Uddin out of his friendship with Deen Islam took the responsibility to realise the money from him. At around 11:50 am on 23.04.2015 a quarrel started between the accused and the deceased over the issue of recovery of dues. At one stage of the altercation, the accused dealt a fatal blow on the left chest of Jamal Uddin with a knife. On

hearing the scream of the victim the witnesses namely, Awlad Hossain, Abul Hossain, Jewel and others came to the place of occurrence and caught the accused Rafiqul Islam Rafique red- handed along with a blood-stained knife. Upon receiving the information about the occurrence, the informant rushed to the place of occurrence. He carried the injured Jamal Uddin to Bhairab Upazila Health Complex by a CNG run auto rickshaw with the help of neighbour Sumon and brother Jaynal Abedin. The duty doctors declared him dead. The public captured the accused, beat him and handed him over to police along with the blood-stained knife.

P.W 19, Md. Saiful Islam a Sub-Inspector of police investigated the case. He visited the place of occurrence, held the inquest on the dead body and prepared a report. He sent the dead body to the morgue for conducting post mortem examination. He also prepared a sketch map, index, recorded statements of the witnesses under section 161 of the Code and seized some alamots. Eventually, he submitted a charge sheet on 24.12.2015 against the aforesaid accused under Section 302 of the Penal Code.

Thereafter, the case was sent to the Sessions Judge, Kishoreganj who framed charge against the accused under Section 302 of the Penal Code on 27.04.2016. The charge so framed was read over to the accused to which he pleaded not guilty and claimed to be tried. The record of the case was ultimately transmitted to the

Additional Sessions Judge, 2nd Court, Kishoreganj for speedy disposal.

In the trial, the prosecution examined as many as 19(nineteen) witnesses and they were duly cross-exa