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PW-22 stated in her cross-examination, it is true that Faria Mahbul Piyasa is currently the most talked about that in her well furnished flat, she thrown the rich man in the trap and collected the money through the society girls in various way and she made the girls prostitutes. It is true that Raintree Hotel and Restaurant is a secured place and no information was found in the hotel register or CCTV footage or in mobile video clips that victim Sadia and informent Rothy were present at the scene of the incident and no information was found in the CCTV footage that victim Sadia and Rothy were raped on the date of the alleged incident of the scene. In other wards, the prosecution is not able to show that both the victims were staying at the Raintree Hotel and Restaurant on the night of the alleged incident.
On perusal of the evidence it is appears that the prosecution could not show victims were present at the place of occurence on the day of the incident. If anything happend against the wishes of the victims they would tell the hotel employees and ask them for help. They did not tell anyone in their house. They kept it a secret for a long time and 30 days later with the help of one of the accused’s devorced wife filed the case. When they were raped the usual conduct is that she will tell people close to her, go to the doctor, take shelter in the law but they did not take anything, which is against the nature. They did not disclose the incident to anyone as per Section-60 of the evidence act, no witness came and told before the tribunal. In other word no witness were found in the tribunal to hear from them.
Now there is only the confessional statements of the accused persons. Confession is not an evidence infact because it is not said by coming before the court and swearing oath according to the provisions of Section-7 of the oath act and the direction of Hon’ble Supreme Court of Bangladesh. Therefore this statement is not an evidence under the Evidence Act. But it has an exception because of the provision of Section-164 of The Code of Criminal Procedure, 1898 the confessional statement may be used as evidence against the maker as a special rule of evidence laid down under it. According to the provision of this section the confessional statement made before the Magistrate may be used as evidence against the confessor if it is recorded following the provisions of section 164 and 364 of The Code of Criminal Procedure 1898. Before
using this confession as evidence it needs to be true and voluntary. The honourable Appellate Division in the case of Islam Uddin Vs State reported in 13 BLC (2008) at page 81 and in the case of Shamim Vs State reported in 13 BLC (2008) at page 84 held that true and voluntary confession may form of sole basis of conviction as against the maker of the same. Then what would be the measuring tool to weigh the confessional statement as, true and voluntary. Ismail Sarker Vs State reported in 33 DLR at page No. 320 and in the case of Khasru Vs State reported in 35 DLR at page 119 the High Court Division held that conviction not legal only on the basis of confession without corroborative evidence.
All the accused were in police custody for 3-7 days till they were produced and their confessional statement were recorded by the Magistrate pw-14, pw-16, pw-17, pw-18.
If the Magistrate before recording the confessional statement upon questioning the person making it, has reason to believe that it was made voluntarily then that type of confession may be used as evidence against the maker. Those questions may be like when the accused is arrested and how long he remained in police custody before being produced to the Magistrate and after recording confession he would not be sent to the police again or the Magistrate may caution the confessor that he is not a police officer and explain to the accused that he is not bound to confess and if he confesses the confession would be used as evidence against the accused and only then the caution and the explanation made to the accused may give a ground to the Magistrate to believe the confessional statement is voluntary. It appears from the confessional statement on the record that the Ld Magistrate before recording the confessional statement of accused Nayeem Ashraf, PW-16 Sottobroto Shikdar, the then Metropoliton Magistrate, Dhaka stated in his evidence that on 25-05-2017 he recorded the confessinal statement of accused Nayeem Ashraf @ H.M Halim under Section 164 of CrPC as per the rules. He proved the confessional statement Exhibit marked 11 and his signature therein Exhibit marked 11 series.
He stated in his cross-examination that inspector Ismat ara Emy presented the accused before him. Earliar, the police arrested the accused from Louhojang in Munshiganj at 8:45 pm on 17-05-2017. The accused was presented before him on 25-05-2017. He didn’t know from where the accused was presented before his and where the accused was after arrest. The accused has been presented before him from the DB office. He stated in his cross-examination is that ÒAvmvgx cywjk †ndvR‡Z _vKve¯’vq Avmvgx †Kgb wQj †m wel‡q †Kvb cÖkœ Kwiwb|Ó
Pw-17 Md Ahsan Habib, the then Metropoliton Magistrate, Dhaka stated in his evidence that on 18-05-2017 he recorded the confessional statement of accused Safat Ahmed under Section 164 of Criminal Procedure Code as per the rules. He proved the confessional statement Exhibit marked 12 and his signature therein Exhibit marked 12/ka seies.
He further stated that after reading the statement to the accused, the accused signed it in the correct sense. He also proved the signature of the accused Exhibit marked 12/ka series.
He stated in his cross-examination that accused Safat Ahmed has been arrested in Sylhet. After being arrested from Sylhet, the accused was brought to Dhaka DB office on 12-05-2017. The accused was presented before him on 18-05-2017. It is true that accused was in police remand from 12-05-2017 to 18-05-2017. He also admitted that, Ò18/05/2017Bs Zvwi‡L Avgvi mvg‡b Dc¯’vcb Kiv nq| 18/05/2017Bs Zvwi‡L bvix mnvqZv I Z`šÍ wefvM DMP Avgvi mvg‡b Dc¯’vcb K‡i| 12/05/2017B nB‡Z 18/05/2017Bs ch©šÍ Avmvgx cywjk wigv‡Û wQ‡jv mZ¨| ¯^xKv‡ivw³ bv Ki‡jI Avmvgx‡K Avi police custody †Z †`Iqv n‡e bv g‡g© Avk¦¯Í K‡iwQ wKbv Zv di‡g D‡jøL bvB|Ó
Pw-18 Md Mahmudul Hassan, the then Metropoliton Magistrate, Dhaka stated in his evidence that on 21-05-2017 accused Billal Hossain was presented before him for recording the confessional statement. He followed the Code of Criminal Procedure and Criminal rules and order and recorded the confessional statement of the accused Billal Hossain by typing in the computer. He then read out the recorded statement to the accused, the accused signed it in the correct sense.
