Appellate Division (Criminal) :
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
State ………Petitioner
vs
Nuru Miah and others……. Respondents
Code of Criminal Procedure (V of 1898)
Section 164(3)
Voluntariness of the confessional statement – From the contents of the confessional statement, it appears to us that the statement is in fact inculpatory. hTere can be no such classification of a confessional statement as “almost exculpatory”. On the other hand, the fact that the accused was previously taken on remand and did not make any confessional statement and only made the confessional statement after having been taken on remand for the second time, raises doubts about the voluntariness of the confessional statement, especially when the Magistrate who recorded the statement is found to have not made a genuine effort to find out the real character of the confession. The High Court Division noted that the confessional statement was recorded in a very mechanical and casual manner.
Biswajit Deb Nath, Deputy Attorney-General, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
None Represented-The Respondents.
Judgment
Md Imman Ali J: This criminal petition for leave to appeal is directed against the judgment and order dated 10-3-2011 passed by a Division Bench of the High Court Division in Criminal Appeal No. 3395 of 2001 allowing the appeal.
2. The relevant facts, for disposal of the case, are that on the previous night of 18-6-1994 PW 1 Jharu Miah, the informant fell sleep with his family soon after having dinner at 10-00 pm. At about 12-00/12-30 am he woke up hearing a sound of gun fire and came out from his house. The informant heard hue and cry from the west side of his homestead and started going towards the house of his nephew Md Shahid Miah Master, which was about 100 yards away from his own house. The informants neighbours Makhan Miah and Dhanu Miah also accompanied him. Entering into the house of Shahid Miah, the informant found his nephew Shahid Miah, aged about 40 years, dead from bullet injuries. He noticed that bullet wounds had been inflicted on the right arm and right ribs of the deceased’s body. The informant, PW 1 claims to have seen the wife and children of the deceased lamenting his death. However, they informed the informant that the deceased was shot by unidentified persons through one of the open windows of his house.
3. One the basis of the said information Nabinagar Police Station Case bearing No. 11 dated 30-1-1995 under section 302 of the Penal Code was started which gave rise to GR Case No. 168 of 1994.
4. After completion of investigation; police submitted charge sheet against 5 (five) accused persons including the present respondents under sections 302/34 of the Penal Code.
5. The case record was transmitted to the learned Additional Sessions Judge, 2nd Court, Brahmanbaria and charges were framed against all the accused persons under sections 302/34 of the Penal Code which was read over to the accused to which they pleaded not guilty and claimed to be tried.
6. In order to substantiate the charge against the accused respondents the prosecution in all examined 19 (nineteen) witnesses but the defence examined none.
7. After conclusion of examination of the witnesses the respondents ‘were examined under section 342 of the Code of Criminal Procedure during which they again pleaded their innocence.
8. The defence case as it transpires from the trend of cross examination is that the alleged confessional statement of convict Abul Hashem was not true and voluntary and the same is the outcome of torture of the police and they have been falsely implicated in the case.
9. After conclusion of trial the learned Additional Sessions Judge by his judgment and order dated 21-6-2001 found the present respondents guilty under sections 302/34 of the Penal Code and sentenced them to suffer imprisonment for life with a fine of Taka 10,000 each, in default, to suffer rigorous imprisonment for 6(six) months more.
10. Being aggrieved by the said judgment and order of conviction and sentence the respondents as appellant preferred Criminal Appeal No. 3395 of 2001 before the High Court Division.
11. By the impugned judgment and order, the High Court Division allowed the appeal setting aside the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge 2nd Court, Brahmanbaria, in Sessions case No: 121 of 1996 and acquitted the appellants.
12. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the High Court Division the State as petitioner has filed the instant criminal petition for leave to appeal before this Division.
13. Mr. Biswajit Deb Nath, learned Deputy Attorney General appearing on behalf of the petitioner submitted that the High Court Division while allowing the appeal failed to appreciate that the Investigating Officer during investigation came to know that at the instance of the accused respondent the victim was killed which was proved by the prosecution. witnesses during trial.
He further submitted that there is a confessional statement recorded under section 164 of the Code of Criminal Procedure which is inculpatory in nature and the prosecution was able to examine direct and corroborative evidence in support of its case considering which the learned Judge of the trial Court convicted and sentenced the accused respondents.
He also submitted that the High Court Division misread and misconstrued the facts, circumstances and the evidence on record in allowing the appeal. Lastly, he submitted that the judgment and order passed by the High Court Division clearly shows non-application of judicial mind having failed to consider that in the trial the prosecution was able to prove its case beyond all shadow of· doubt mentioning the time, place and manner of occurrence upon examining the independent witnesses; as such, the impugned judgment and order calls for interference by this, Division.
14. No one has appeared for the respondents.
15. We have considered the submissions of the learned DAG for the petitioner and perused the impugned judgment and other connected papers on record.
16. It appears from the records that the informant PW I, paternal uncle of the deceased, stated in his cross-examination that he did not see the occurrence and that Ohid Miah brother of the deceased was present at their home in the night of occurrence and that he, the informant, went to the police station after talking to Ohid Miah. It also appears that the informant did not name any of the accused at the time of lodging the First Information Report (FIR).
He further stated that the police came to the place of occurrence immediately after he lodged the FIR and that at that time Ohid Miah was at home. Even at that time, neither Ohid Miah nor the members of the victim’s family mentioned the names of any accused persons. Ohid Miah, who deposed as PW 5, narrated the story as an eyewitness, naming some of the accused persons. He admitted that he did not name any of the accused persons to the people of the village who came to the place of occurrence, due to fear and that he told his sister-in-law 4/5 days after the occurrence that he recognised two of the accused.
The High Court Division observed that save and except Ohid Miah, there was no other eyewitness and that PWs I, 2, 3 and 6 heard the names of the assailants from Ohid Miah. After elaborate discussion of the evidence, the High Court Division concluded that the belated disclosure of the names of the assailants by PW 5, possibility of embellishment and concoction of the prosecution case by the said witness cannot be ruled out and accordingly no reliance was placed on his testimony.
17. With regard to the confessional statement of Abul Hashem, the High Court Division observed that it was almost exculpatory.
However, from the contents of the confessional statement, it appears to us that the statement is infact inculpatory. There can be no such classification of a confessional statement as “almost exculpatory”. On the other hand, the fact that the accused was previously taken on remand and did not make any confessional statement and only made the confessional statement after having been taken on remand for the second time, raises doubts about the voluntariness of the confessional statement, especially when the Magistrate who recorded the statement is found to have not made a genuine effort to find out the real character of the confession.
The High Court Division noted that the confessional statement was recorded in a very mechanical and casual manner.
18. On scrutiny, we find that the High Court Division has carefully assessed the evidence and materials on record and has rightly acquitted the respondents.
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
State ………Petitioner
vs
Nuru Miah and others……. Respondents
Code of Criminal Procedure (V of 1898)
Section 164(3)
Voluntariness of the confessional statement – From the contents of the confessional statement, it appears to us that the statement is in fact inculpatory. hTere can be no such classification of a confessional statement as “almost exculpatory”. On the other hand, the fact that the accused was previously taken on remand and did not make any confessional statement and only made the confessional statement after having been taken on remand for the second time, raises doubts about the voluntariness of the confessional statement, especially when the Magistrate who recorded the statement is found to have not made a genuine effort to find out the real character of the confession. The High Court Division noted that the confessional statement was recorded in a very mechanical and casual manner.
Biswajit Deb Nath, Deputy Attorney-General, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
None Represented-The Respondents.
Judgment
Md Imman Ali J: This criminal petition for leave to appeal is directed against the judgment and order dated 10-3-2011 passed by a Division Bench of the High Court Division in Criminal Appeal No. 3395 of 2001 allowing the appeal.
2. The relevant facts, for disposal of the case, are that on the previous night of 18-6-1994 PW 1 Jharu Miah, the informant fell sleep with his family soon after having dinner at 10-00 pm. At about 12-00/12-30 am he woke up hearing a sound of gun fire and came out from his house. The informant heard hue and cry from the west side of his homestead and started going towards the house of his nephew Md Shahid Miah Master, which was about 100 yards away from his own house. The informants neighbours Makhan Miah and Dhanu Miah also accompanied him. Entering into the house of Shahid Miah, the informant found his nephew Shahid Miah, aged about 40 years, dead from bullet injuries. He noticed that bullet wounds had been inflicted on the right arm and right ribs of the deceased’s body. The informant, PW 1 claims to have seen the wife and children of the deceased lamenting his death. However, they informed the informant that the deceased was shot by unidentified persons through one of the open windows of his house.
3. One the basis of the said information Nabinagar Police Station Case bearing No. 11 dated 30-1-1995 under section 302 of the Penal Code was started which gave rise to GR Case No. 168 of 1994.
4. After completion of investigation; police submitted charge sheet against 5 (five) accused persons including the present respondents under sections 302/34 of the Penal Code.
5. The case record was transmitted to the learned Additional Sessions Judge, 2nd Court, Brahmanbaria and charges were framed against all the accused persons under sections 302/34 of the Penal Code which was read over to the accused to which they pleaded not guilty and claimed to be tried.
6. In order to substantiate the charge against the accused respondents the prosecution in all examined 19 (nineteen) witnesses but the defence examined none.
7. After conclusion of examination of the witnesses the respondents ‘were examined under section 342 of the Code of Criminal Procedure during which they again pleaded their innocence.
8. The defence case as it transpires from the trend of cross examination is that the alleged confessional statement of convict Abul Hashem was not true and voluntary and the same is the outcome of torture of the police and they have been falsely implicated in the case.
9. After conclusion of trial the learned Additional Sessions Judge by his judgment and order dated 21-6-2001 found the present respondents guilty under sections 302/34 of the Penal Code and sentenced them to suffer imprisonment for life with a fine of Taka 10,000 each, in default, to suffer rigorous imprisonment for 6(six) months more.
10. Being aggrieved by the said judgment and order of conviction and sentence the respondents as appellant preferred Criminal Appeal No. 3395 of 2001 before the High Court Division.
11. By the impugned judgment and order, the High Court Division allowed the appeal setting aside the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge 2nd Court, Brahmanbaria, in Sessions case No: 121 of 1996 and acquitted the appellants.
12. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the High Court Division the State as petitioner has filed the instant criminal petition for leave to appeal before this Division.
13. Mr. Biswajit Deb Nath, learned Deputy Attorney General appearing on behalf of the petitioner submitted that the High Court Division while allowing the appeal failed to appreciate that the Investigating Officer during investigation came to know that at the instance of the accused respondent the victim was killed which was proved by the prosecution. witnesses during trial.
He further submitted that there is a confessional statement recorded under section 164 of the Code of Criminal Procedure which is inculpatory in nature and the prosecution was able to examine direct and corroborative evidence in support of its case considering which the learned Judge of the trial Court convicted and sentenced the accused respondents.
He also submitted that the High Court Division misread and misconstrued the facts, circumstances and the evidence on record in allowing the appeal. Lastly, he submitted that the judgment and order passed by the High Court Division clearly shows non-application of judicial mind having failed to consider that in the trial the prosecution was able to prove its case beyond all shadow of· doubt mentioning the time, place and manner of occurrence upon examining the independent witnesses; as such, the impugned judgment and order calls for interference by this, Division.
14. No one has appeared for the respondents.
15. We have considered the submissions of the learned DAG for the petitioner and perused the impugned judgment and other connected papers on record.
16. It appears from the records that the informant PW I, paternal uncle of the deceased, stated in his cross-examination that he did not see the occurrence and that Ohid Miah brother of the deceased was present at their home in the night of occurrence and that he, the informant, went to the police station after talking to Ohid Miah. It also appears that the informant did not name any of the accused at the time of lodging the First Information Report (FIR).
He further stated that the police came to the place of occurrence immediately after he lodged the FIR and that at that time Ohid Miah was at home. Even at that time, neither Ohid Miah nor the members of the victim’s family mentioned the names of any accused persons. Ohid Miah, who deposed as PW 5, narrated the story as an eyewitness, naming some of the accused persons. He admitted that he did not name any of the accused persons to the people of the village who came to the place of occurrence, due to fear and that he told his sister-in-law 4/5 days after the occurrence that he recognised two of the accused.
The High Court Division observed that save and except Ohid Miah, there was no other eyewitness and that PWs I, 2, 3 and 6 heard the names of the assailants from Ohid Miah. After elaborate discussion of the evidence, the High Court Division concluded that the belated disclosure of the names of the assailants by PW 5, possibility of embellishment and concoction of the prosecution case by the said witness cannot be ruled out and accordingly no reliance was placed on his testimony.
17. With regard to the confessional statement of Abul Hashem, the High Court Division observed that it was almost exculpatory.
However, from the contents of the confessional statement, it appears to us that the statement is infact inculpatory. There can be no such classification of a confessional statement as “almost exculpatory”. On the other hand, the fact that the accused was previously taken on remand and did not make any confessional statement and only made the confessional statement after having been taken on remand for the second time, raises doubts about the voluntariness of the confessional statement, especially when the Magistrate who recorded the statement is found to have not made a genuine effort to find out the real character of the confession.
The High Court Division noted that the confessional statement was recorded in a very mechanical and casual manner.
18. On scrutiny, we find that the High Court Division has carefully assessed the evidence and materials on record and has rightly acquitted the respondents.
