Appellate Division Cases
Md. Golam Murtuza. @ Isphil …………………………Appellant
The State…………………………………………..….. Respondent
Md. Ruhul Amin J
Syed J. R Mudassir Husain J
M. M. Ruhul Amin J
Date of Judgment .
20th October 2003
The Penal Code (XLV of 1860), Section 302.
Admissible of confession
Retracted confession of the accused can only be relied if the same is found to be true and voluntary and not product of torture but in the instant case the confessional statement Exhibit-3 was result of torture by the police paralyzing the appellant petitioners power of writing and therefore not voluntary, which is evident from the evidence of P.W. 17, the Magistrate that after remand to police custody on 17.3.1991 the appellant was produced on 23.03.1991 and on refusal to make confession he was again taken on remand and was produced on 25.03.1991, when his confessional statement was recorded and his thumb impression was taken on the same it is not safe to base conviction on retracted confession
alone without corroboration in material particulars in support of the guilt of the accused in the instant case and the P.W. 1 Md. Abdur Rahman father of deceased Rubel at the time of lodging First Information Report did not suspect any body in the killing of Rubel and Mantu and P.W.3 Jebunnessa, who deposed in the Court that she found the appellant fleeing away by crossing boundary wall of Rubels house did not make such statement before Investigation (5)
Khondoker Mahbub Hossain Senior Advocte, instructed b\ Md. Nctwab Ali, Advocate-on-Record For theAppellants.M. A. Rouf, Deputy Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record….For the Respondent.
1. Syed J. R. Mudassir Husain J:- This is an appeal by leave from the judgment and order dated 14-11-2000 passed by a Division Bench of the High Court Division in Criminal Appeal No. 772 of 1993 dismissing the appeal, reducing the sentence of fine to Tk. 1000/- in default to suffer simple imprisonment for 6(six) months and affirming the judgment and order of conviction under Section 302 of the Penal Code and sentence of imprisonment for life dated 224-1993 passed by the learned Sessions Judge, Rajshahi in Session Case No. 105 of 1991.
2. The prosecution case, in nutshell, is that informant Pw.1 Abdur Rahman of village Kashimpur under police Station Godagari Rajshai lodged with Godagari P. S an 13-03-1991 alleging, inter alia, that he is an Assistant Teacher of Prizpur High Sechool and lives with his wife Mst. Rokeya Khatun and two minor sons namely Md. Towhidur Rahman Alias Rubel aged about 11 years and Raihan Kabir Razu aged about 7 years; that in the evening of the preceding day at about 5 P. M. his wife went to her father’s house at Char Anupnagar hardly at in distance of l(One) kilometer from his residence with his younger son Raihan, who came back home with a letter of his mother at about 6.30 of that evening; and that at night the informant slept with his two sons and woke up in following morning, took breakfast along with his two sons and after breakfast sent his younger son Raihan to his father in law’s house with some used cloths for washing and went to school leaving his eldest son Tauhidur Rahman @ Rubel at home. That at about 12 noon one Atiqur Rahman a co-villager of the informant went to his school and asked him to go back home immediately and in pursuance of the urgent message the informant at once rushed back to his house with said Atiqur Rahman by motorcycle and found his house crowded and his eldest son Touhidur Rahman @ Rubel lying dead with some cut injuries on his neck and head that one Ayenuddin of his village approached him and told that Selima Begum, wife of the informant’s cousin ShafiquI Islam entered into the informant’s house at 9 A. M. for taking water from tube well and called by the name of his eldest son but having no response from anybody she entered into the house and found the eldest son of the informant Touhidur Rahman <& Rubel and Mantu aged about 7 (seven) years of the informant’s cousin lying unconscious in a pool of blood on the floor with so many cut injuries on their persons and a blood stained ‘hashua’ lying on the floor; that seeing the terrible sceneries said Selina Begum raised hue and at which people around rushed into his house and immediately thereafter Rezaoul Karim a cousin of the informant took both the injured boys to Nawabgonj Hospital but on the way the informant’s son Rubel died and another injured was admitted in the hospital, the dead body of the informant’s son was brought back home. On the basis of the ejhar Godagari P. S. Case No. 10 dated 1303-1991 was started. During investigation, the convict appellant as arrested, who made a judicial confession recorded under Section 164 of the Code of Criminal V Procedure. Thereafter, charge sheet was submitted on 31-07-1991 against accused. The case was then sent for trial.
3. The defence case was taht the appellant has been implicated in this case falsely due to previous enmity. Further, case of the efence is that Rubel and Mantu both were killed by Hashua and that the confessional statement was obtained by the police by torture which was neither true nor voluntary.
4. The learned Sessions Judge, Rajshahi discussed the evidence on record and considered
the confessional statement of the accused-petitioner (Ext. 3) to be voluntary and true and thereupon found the petitioner guilty under Section 302 of the Penal Code and sentenced him to imprisonment for life. On appeal the High Court Division in Criminal Appeal No. 772 of 1993 found that the learned Sessions Judge, Rajshahi had recorded his findings with reasons; that he confessional statement (Ext.3) by the , appellant was voluntary and true. The learned Sessions Judge Rajshahi found the confessional statement to be voluntary and true which was also corroborated by a few prosecution witnesses. Therefore, the High Court Division found nothing to differ from the findings and decisions of the trial Court. The facts and circumstances of the case combined with he evidence of the information P.W. 1, P.W.3 and P.W. 11 along with the confessional statement made by the accused appellant lead to the conclusion that only the accused petitioner Md. Golam Murtuza and nobody else committed the brutal murder of two minor boys Rubci and Mantu and the learned trial Court legally found the accused petitioner guilty under Section 302 of the Penal Code. Accordingly, the appeal was dismissed upholding the conviction and sentence passed by the learned Sessions Judge, but reduced the sentence of fine from Tk. 2000/- to Tk. 1,000/- and in case of default to pay the fine to suffer imprisonment for 6(six) months more in place of one year.
5. Mr. Khondker Mahbub Hosain, the learned Counsel appearing for the appellant, contended that learned Judges of the High Court Division failed to consider that retracted confession of the accused can only be relied if the same is found to be true and voluntary and not product of torture but in the instant case the confessional statement fixhibit-3 was result of torture by the police paralyzing the appellant petitioners power of writing and therefore not voluntary, which is evident from the evidence of P.W. 17, the Magistrate that after remand to police custody on 17.3.1991 the appellant was produced on 23.03.1991 and on refusal to make confession he was again taken on remand and was produced on 25.03.1991, when his confessional statement was recorded and his thumb impression was taken on the same and as such the impugned judgment and order is liable to be set aside. It is further submitted that the learned Judges of the High Court Division
failed to consider that it is not safe to base conviction on retracted confession alone without corroboralion in material particulars in support of the guilt of the accused in the instant case and the P.W. 1 Md. Abdur Rahman father oi deceased Rubel at the time of lodging First Information Report did not suspect any body in the killing of Rubel and Mantu and P.W.3 Jebunnessa, who deposed in the Court that she found the appellant fleeing away by crossing boundary wall of Rubels house did not make such statement before Investigation Officer P.W. 18 and as such the impugned judgment and order is liable to be set aside.
6. Learned Advocate lastly argued that the High Court Division failed to consider that suspicion however strong is not enough to draw and inference of guilt and can not form basis of conviction and in the instant case 18 witnesses were examined out of which P.W. 1 informant, who did not suspect any body in the FIR, P.W-3 deposed in the Court that she saw the accused fleeing away by crossing the boundary wall of the deceased Rubel after occurrence but did not state the same before the Investigation Officer, P.W.-4 suspected the appellant. P.W. 11 mother of Rubel suspected the appellant and upon the evidence of aforesaid of the appellant is based, others are formal witnesses and that the conviction is based on mere suspicion which is not sustainable in law and as such it is liable to be set aside. 7. Mr. M.A. Rouf, the learned Deputy Attorney General, however, supported the impugned judgment of the High Court Division, which is according to him legal. The learned Deputy Attorney General also contended that there is no eye witness to the murder of Rubel and Mantu and that the prosecution case was based on circumstantial evidence and retracted judicial confession. It is argued that the learned Sessions Judge rightly passed the order of conviction and sentence and the High Court Division upon due consideration of the decision cited before the Court and as such there is no reason to disturb the finding of fact arrived by the Courts below.
8. We have heard the learned Advocate for the appellant and the learned Deputy Attorney General for the Stale. It appears that the learned Judges of the High Court Division failed to consider that P.W. 1 complainant Md. Abdur Rahman father of the deceased Rubel at the time of lodging F. I.R. did not suspect any body and before the Investigation Officer he state that the time of F.I.R it was not known to him who killed Rubel and Mantu and from the evidence of RW. 18, the Investigating Officer, it appears that RW. 3, Jibonnessa
did not state before him that she found the accused fleeing away crossing boundary wall of Ruble’s house. Apart from this contradictory statement, we find taht the conviction was solely based on retracted confession which was obtained as result of torture by police who paralyzed the accusedpetitioner’s power of right -hand and therefore it was not voluntary and this aspect in very much in the evidence of RW. 17, the Magistrate that after remand to the police custody on 17.03.1991. the accused petitioner refused to make confessional statement and thereafter he was produced on 23.03.1991 and on refusal he was again produced on 25.03.1991 when the confessional statement was recorded his thumb impression was taken and in such view of the matter, we are of the view that the confessional statement Exhibit-3 was not voluntary but was obtained upon resorting to torture by the police. It appears that the High Court Division as a final court of fact failed to consider taht RW.3, in the trial Court, stated that she saw the convict appellant, Md. Golam Martu/.a to run away from the western side to northern side immediately after the occurrence but she did not state said fact to the Investigation Officer, RW. 18 in his statement recorded under Section 161 of the Code of Criminal Procedure and the ommission of such vital fact in the initial statement is a vital contradiction and as such she could not be relied on. Under the aforesaid facts and circumstances, we arc of the view that there is n o V materials on record to connect or implicate the appellant in the commission of crime and as such conviction and sentence can hardly be sustained. Tn our view, the High Court Division committed an error of law in not considering that the aforesaid evidence on record in their proper perspective. For all the above reasons, we find that the appellant is entitled to be requited of the charge leveled againsl him and as such the impugned judgment of the High Court Division affirming the judgment of the -f.
learned Sessions Judc is erroneous and can not be sustained in law. In the result, the appeal is allowed and the accused-appellant is set at liberty if not wanted in any other connection.
Source : III ADC (2006), 407.