1. ABDUL, HAKIM, J.-This judgment will dispose of Death Reference No. 16 of 1970 made by the Additional Sessions Judge, 1st Court, Sylhet, for confirmation of the sentence of death imposed on one Bhaisakur Ghara and Criminal Appeal No: 569 of 1970 preferred by the said condemned- prisoner challenging the order of conviction and sentence of death ; passed by the learned Judge.
2. The accused Bhaisakur Ghara is a labourer in Fultola Tea Estate under Kulaura Police Station. The informant Kamal Kanta Singh is the son of deceased Kamalini Khaitrani of Batuli Bosti near Fultola Tea Estate. Deceased Kamalini Khaitrani used to sell `chira and muri' in Rajki Tea Garden and Fultola Tea Garden. On the 7th Chaitra, 1376 B. S. (correspond--ing to 21-3-70) Kamalini Khaitrani went to sell 'chira and muri' as usual in Rajki Tea Garden in the morning. She did not return home in the evening even at about 7/8 p.m. The complainant went out in search of his mother in Rajki Tea Garden. In course of search he met P. Ws. Kati and Koharo in Tilla No. 10 of Fultola Tea Garden and on his asking Kati and Koharo told that they escorted Kamalini Khaitrani up to Kali Bari of Fultola'
3. Tea Garden and then made her over to the care of accused Bhaisakur Ghara. The complainant came to accused Bhaisakur Ghara's house and did not find him home and on his asking Sudharsan Ghara, father of accused Bhaisakur Ghara, told the complainant that he had not seen his mother Kamalini Khaitrani. The complainant returned home and on the following morning he again went to the house of P. W. Kharo and along with Kharo and Kati left towards the house of Bhaisakur Ghara. When they reached Jogeswar Tilla which is also called Dak Tilla or Tilla No. 11 near the house of accused Bhaisakur Ghara, the party found some blood-stained earth, some paddy and some hair and pieces of flesh and marks of dragging on the ground: They suspected foul play and went out in search of accused Bhaisakur Ghara. A little after P. W. Kunjadhan Singh, cousin of the informant, found Bhaisakur Ghara in Tilla No. 14 and brought him back to the place where the alamats were found. At that the on being pressed, the accused Bhaisakur Ghara confessed that he killed Kamalini Khaitrani by dao blow for money as it was the the of D.I Purnima (Fagua) and he also stated that he kept the dead. Body in the Jheel below the Tilla No. 11.
4. The Chairman of the local Union Council Abdul Moin Choudhury was at once informed of the matter. He came to the spot and on his asking the accused confessed that in the previous night he murdered Kamalini Khaitrani with dao blow and kept the dead body in the Jheel and the accused also showed the place where he kept the dead body. The Chowkidar Gopendra Pat who was already there went to the Jheel along with the Chairman and others acid traced the dead body of Kamalini Khaitrani in the mudded water of the Jheel as per direction of the accused. A spade, Exh. 1, was recovered from the bush. The dao, Exh. 2 was recovered by the Chowkidar from the but of accused S Bhaisakur Ghara according to his direction. He also recovered Rs. 18 in cash from the person of the accused. The Chairman then took the complainant and the accused to the Union Council Office and sent them to Kulauro Police Station.
5. P. W. 1, the informant Kamal Kanta Singh produced the accused in the police station and lodged ejahar, Exh. 3 on the above allegations. The local police took up the matter and started investigation into the case. During the course of investiga--tion, the accused made certain statements to the police and the Officer-in-Charge Kulaura Police Station sent him to the Sub--- Divisional Magistrate; Moulvi Bazar for recording his confes--sional statement under section 164, Cr.
6. P. C. And accordingly Mr. M. A. Islam, Magistrate, Ist Class, Moulvibazar, recorded the confessional statement, Exh. 2 of accused Bhaisakur Ghara. After completion of investigation, the police submitted charge-sheet against the accused under section 302, P. P. C. A preliminary inquiry having been done by a competent Magistrate, the accused was committed to the Court of Session and thus he .Was put on trial before the learned Additional Sessions Judge to meet a charge under section 302, P. P. C: The plea of the accused was, one of innocence. The defence case was that accused Bhaisakur Ghara abducted a girl named Shita Debi belonging to Monipuri Community sometime back and out of that grudge he had been falsely implicated in the case by the informant Kamal Kanta Singh at the instance of the other members of the Monipuri Community. The P. Ws. Falsely deposed that he made confessional statement.
7. 12 witnesses for the prosecution and none for the defence were examined in the case. Out of the 4 assessors 3 found the accused guilty and one not guilty. The learned Judge on the evidence and materials on record convicted the accused under section 302, P. P. C. And sentenced him to death by his judgment dated 6-10-70.
8. The learned Judge has made a Reference under section 374, Cr. P. C. For confirmation of the death sentence whereas the condemned-prisoner has challenged the propriety and legality of the order of conviction and sentence.
9. Mr. Nurul Hoque Bhuiyan, the learned Advocate appearing for the condemned-prisoner has taken us through the judgment, depositions and other relevant papers. At the very outset he has pointed out that the defence lawyer engaged by the Court of Session was not given sufficient the to prepare the case and the accused could not take his proper defence in the trial. His objection is that for paucity of the, the defence lawyer engaged in the last minute, could not do proper justice to the case and consequently the accused has been prejudiced in his defence and that has occasioned a failure of justice in the case.
10. It appears from the records that the case was fixed for trial on 29-9-70. Accused Bhaisakur Ghara not being represented by any lawyer, one Mr. Mohammad Hossain, Advocate was engaged as Crown defence on that day and given to hours the from 10-30 a. m. To 12-30 p. m. For preparation of the brief. He was again allowed half an hour the subsequently but in a case under section 302, P.
11. P. C., in our opinion, the the allowed by the Court for preparation of the brief was not at all sufficient.
12. The lawyer must be given reasonable the to prepare the case and consult his clients so as to do justice in the matter. It is more so when he is to cross-examine a number of prosecution witnesses.
13. The practice of engaging a defence lawyer in the last moment on the very day of trial and asking him to proceed with the case within an hour or to is highly improper and it has been disapproved by the superior Courts. Reference in this connec--tion may be made to the cases reported in 16 D L R 388 and 6DLR 13.
14. 'It should, however, be noted here that if after going through the records, the appellate Court is satisfied that the defence lawyer has fairly cross-examined the P. Ws. And done justice to the matter and the accused has no reason to be prejudiced in his defence, any interference with the order of conviction solely on the ground that sufficient the was not allowed to him, would not be so desirable. In each case, the matter shall be I decided by its own facts and circumstances.
15. In the instant case there is a matter which has impelled us to think that the lawyer concerned could not do proper justice to the defence case and the condemned-prisoner has right to make the grievance that he had been seriously prejudiced in the trial.
16. The prosecution case rests entirely on the confessional state--ment of the accused, both judicial and extra-judicial. It appears from the judicial confession, Exh. 2, that he stated therein that he took some `Haria' (Country Liquor) before commission of the crime. The relevant portion of his statement runs as follows:-(Words in Bengali script omitted).
17. "(I have taken some Haria, L e. Country Liquor)".
18. P. W. 1 Kamal Kanta Singh has admitted in cross-examina--tion that "The coolies of garden drink, they also take Tari and Bhang". P., W. 4 Kati has admitted in cross-examination "Some garden coolies take Haria". In view of the evidence of P. Ws. 1 and 4 the assertion of the condemned- prisoner in the confessional statement cannot be ignored. It appears from the last page of the judgment that the learned Additional Judge himself also took notice of it and observed that the accused took some Haria, meaning country liquor. In the circumstances a question might arise whether the Haria taken by the accused prior to the occurrence had any bad influence on the accused or whether the accused committed the crime under influence of the country liquor or in other words can it be safely said that the accused after taking the Haria acted in normal mind or committed the alleged murder without any influence of the liquor or intoxication.
19. It is curious that such an important matter has been altogether, overlooked by the defence lawyer engaged by the Court. Not a word has been put to any of the witnesses in cross--examination in respect of Haria taken by the accused. No cross-examination has at all been directed in that line. If the defence could have shown even a semblance of doubt in that respect, the position would have been different and the conviction might have been doubtful.
20. In the context of things we think that the grievance made by the learned Advocate has considerable force and the point raised above cannot be easily brushed aside. We are, therefore, of opinion that the defence lawyer could not do proper justice in the matter for want of the and there has been a miscarriage of justice in the case and the case should go back to the Court of Session for retrial of the accused after giving him proper opportunity to defend himself and sufficient the to the defence Advocate to take proper defence on behalf of the condemned-- prisoner.
21. In view of the order we propose to pass in the case we do not think it desirable to go into the merits of the case or to consider the other points raised before us.
22. In the result the Reference is rejected and the Appeal is allowed. It is unfortunate that the accused has been given extreme penalty of law without. Affording proper opportunity to defend himself.
23. It is directed that the case should be retried by the learned Sessions Judge in accordance with law.
24. The accused shall remain in custody till the disposal of the Sessions trial.