The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)

such the Tribunal very rightly convicted and sentenced the accused Milon under section 9 (3) of he Ain of 2000.                 ….(63 and 64)

Code of Criminal Procedure (V of 1898)

Section 164

Evidence Act, (I of 1872)

Sections 3 and 24

The accused Rabiul alias Hubul confessed his guilt and complicity in commission of rape and murder of Sumi in presence of PWs. 1 to 8. His statement was also recorded in the cassette in their presence which was proved by P.W.6. The voice recorded in cassette was also proved by the above witnesses. The contents of Judicial confession of accused Milon and statement of accused Rabiul alias Hubul recorded in cassette are identical in respect of complicity of all accused with regards to rape and murder of Sumi. So the evidence of all these PWs regarding commission of offence by accused Rabiul alias Hubul are consistent, uniform and corroborative with each other with all material particulars. Hence the Tribunal rightly convicted the accused Rabiul alias Hubul.                                             … (68)

Evidence Act (I of 1872)

Section 30

It is well settled that the confession of an accused is not a substantive piece of evidence against co-accused who did not confess and such evidence alone without any substantive corroborative evidence cannot form basis of conviction of co-accused.

There is no doubt that the above four appellants have been implicated in the murder in the confessional statement of two accused, but the said confessional statements cannot be taken into consideration unless there exists independent evidence, direct or circumstantial, to connect the appellants with the murder. There is no direct evidence in this case against them. So such confessions should not be used against them.          … (70 and 77)

Evidence Act (I of 1872)

Section 8

Abscondence cannot always be a circumsta-nces which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime.                                        … (89)

Abdur Rouf Mollah Vs. The State 2 LG (2005)AD 105, Samim Vs. The State 27 BLD (AD) 74, A.B.M. Nazmus Sakib Ashik Vs. State 12 BLC (AD) 203, State Vs. Lalu Miah and another 39 DLR (AD) 118, Abu Taher Chowdhury and others Vs. The State 11 BLD (AD)-2, Lutfun Naher Begum Vs. The State 27 DLR (AD)-29, Uddin (Md.) alias Din Islam  Vs. The State 13 BLC (AD)81, Abdur Rashid and others Vs. The State 3 BLD 206, Amir Hossain Vs. The State 6 BLD (AD)193, Gouranga Chandra Paul Vs. The State 59 DLR 17, 29 DLR (SC)27, Shajahan Ali (Md.) alias Md. Shahjahan Vs. The State 59 DLR 396, Hazrat Ali and others Vs. The State 44 DLR (AD) 51, The State Vs. Abul Kalam Azad and others 8 BLC 464, Mofazzal Hossain alias Mofa and others Vs. State 58 DLR-524, State Vs. Rafiqullah Khan 7 BLC-480, Ustar Ali Vs. State 3 BLC (AD)53, Lutfurnahar Vs. State 27 DLR (AD)29, Babor Ali Molla Vs. State 44 DLR (AD)10, State Vs. Lalu Mia 39 DLR (AD)117, Amir Hossain Vs. State 37 DLR (AD)179, Joygun Bibi Vs. The State 12 DLR (SC) 156, Bhuboni Sahu Vs. The King, L.R.76 147, Joygun Bibi Vs. The State, (1960) 12 DLR (SC)156, Maqbool Hussain Vs. The State, (1960) 12 DLR (SC) 217, AIR 1949 PC 257+ AIR 1952 SC 159, AIR 1957 SC 381+AIR 1964 AP 548, AIR 1967    , AIR 1952 SC 159+AIR 1964 SC 1184+AIR 1965 Orissa 170, AIR 1964 SC 1184+1977 Crl. LJ 1309, AIR 1956 SC 56+AIR 1968 SC 832, Monsur Ali Vs. The State 13 BLC 196, State Vs. Badsha Molla, 41 DLR 11, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR (AD)117, State Vs. Sree Ranjit Kumer Promanik, 45 DLR 660, Ali Vs. Crown 6 DLR (W.P.)52, Rahman Vs. The State of U.P. AIR 1972 (SC)110, Shajahan Vs. The State 46 DLR-575, Mojibur Rahman Vs. The State 13 MLR-88, ref.

Mr. M. A. Mannan Mohan, D.A.G. with

Mr. Md. Mahbub Ul Alam, A.A.G.,

Mr. Md. Osman Goni, A.A.G. and

Mrs. Delwara Begum, A.A.G.

                                    …For the State

Mr. S. M. Shahjahan, Advocate, with

Mr. Muhammad Rezaul Kabir Khan, Advocate and

Mr. Md. Mohinur Rahman, Advocate,

…..For the convict-appellants.

Judgment

Syed Md. Ziaul Karim, J:

This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal no.2, Bogra (briefly as Tribunal), for confirmation of death sentences of condemned-prisoners.

1. 2.          By the above appeals the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 18-05-2006 passed by learned Judge of Tribunal in Nari-O-Shishu Case no. 288 of 2004 convicting the appellants under Section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (briefly as Ain 2000) and sentencing each of them to death by hanging and also to pay a fine of Tk.1,00,000/= each.
2. 3.          This death reference and all these appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.
3. 4.          The prosecution case put in a nutshell are that on the night following 13-08-2000 victim Shahnaj Akhter Banu alias Sumi (since deceased) daughter of Abdus Sattar (P.W.1) was in asleep in her father’s dwelling hut. At about 11:00 p.m. the accused called her out of the house on a pretext to get meet with her paramour Alam. Later on she was raped to death at the hef¡¢al land belonged to father of Abdul Mannan. Later, dumped her body in a pond near the house. Subsequently the body was found floating in the pond and it was brought to its courtyard. The body bore multiple injuries having marks of sexual violence. On 14-08-2000 the incident was informed to her father who was then Station master at Adomdighi gate no.4, over telephone by Md. Belayet Hossain alias Nantu (P.W. 6). He, then rushed to his home and heard the occurrence from his wife Rowshan Ara Begum(P.W.2) to the effect that since 11:00 p.m. victim Sumi was found missing, son Sumon, domestic worker Md. Ashraful (P.W.7), neighbours Rafiqul, and Delbor (P.W.4)  unsuccessfully searched her and on the following morning her dead body was found inside the pond by Rafiqul. The accused also took her ornaments. The prosecution was launched by lodging a first information report (briefly as FIR) by Abdus Sattar (P.W.1) as informant which was recorded as Adamdighi Police Station case no. 9 dated 14-08-2000 corresponding to G.R. no. 90 of 2000.
4. 5.          During investigation on 02-09-2000 accused Md. Milon was arrested by the Police and on the same day he made confession before the learned Magistrate(Exhbt.4) implicating himself along with five co-accused namely Rabiul alias Hubul, Helal, Aslam, Musaddek and Mannan. Rabiul alias Hubul being arrested on 08-09-2000 made extra judicial confession before the locals implicating himself along with aforesaid persons.
5. 6.          The Police after investigation submitted charge sheet accusing the appellants under section 9(3) of the Ain 2000.
6. 7.          Eventually the accused were called upon to answer the charge under Section 9(3) of the Ain 2000 to which the accused on dock pleaded not guilty and claimed to be tried.
7. 8.          In course of trial the prosecution in all examined thirteen witnesses out of twenty charge sheeted witnesses. The defence examined none.
8. 9.          After closure of prosecution case, the accused were examined under Section 342 of the Code, again they repeated their innocence and led no evidence in defence.
9. 10.      The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that some unknown assailants kidnapped the victim. Subsequently raped her to death and due to internal feud between the accused and the informant, they were falsely implicated in this case.
10. 11.      After trial the accused were convicted as aforesaid.
11. 12.      The learned Deputy Attorney General appearing for the State supports the reference and submits that soon after the occurrence arrestee Md. Milon made confession. Later on another co-accused Rabiul was nabbed by his father and locals who then made extra judicial confession. He adds that both the accused implicated themselves aswellas other co-accused. He adds that confession of Milon was true and voluntary, and there are corroborative evidence against all the accused. So the Court below rightly convicted them. He adds that the confession if it is found true and voluntary, may form the sole basis of conviction. In support of his contentions he refers the case of Abdur Rouf Mollah Vs. The State 2 LG(2005)AD 105 held:

“It is now well settled that the confessional statement if it is found to be true and voluntary may form the sole basis of conviction as against the maker even if it is subsequently retracted. In this case the confessional statement was not retracted immediately after making the same. It is only at the time of examination of the condemned prisoner under Section 342 of the Code of Criminal Procedure, he at a belated stage retracted the same and such belated retraction has not made the confessional statement, which is voluntary and true, unworthy of making basis for conviction.”

1. 13.      In the case of Samim Vs. The State 27 BLD (AD)74 held:

“The appellant went to the place of occurrence and on the request of other accused he asked the night guard of the school to go out and then other accused came and killed the deceased but he did not disclose the same to anybody. Thus it appears that his confessional statement is not wholly exculpatory rather the same is partly exculpatory and partly inculpatory. It is true that he did not directly participate in the murder of the deceased but he participated in the occurrence by asking the night guard of the school to go out and thereby facilitating the murder of the deceased by other accused as narrated by him in his confessional statement. It is on record that the appellant retracted his confession in writing subsequently which clearly goes to show that he made the judicial confession. In the opinion of recording Magistrate the confession is true and voluntary. The confessional statement of the appellant is sufficient for his conviction and in addition there is circumstantial evidence also and the High Court Division rightly maintained his conviction and sentence and dismissed the appeal. The High Court Division upon correct assessment of the materials on record arrived at a correct decision and as such there is no cogent reason to interfere with the judgment of the said Division.”

1. 14.      The learned Counsel next refers the case of A.B.M. Nazmus Sakib Ashik Vs. State 12 BLC (AD)203 held:

“ It appears that the confessional statement can never be treated to be false or not voluntary but the same is statement of fact depicting vividly the occurrence and does not suffer any infirmity so as to render the same illegal due to certain allegation alleged in violation of any provision of law regarding the recording of the same. Moreover, at no point of time during trial the alleged allegation was raised against the confessional statement and the said allegation is an afterthought. The High Court Division has observed that  “ On careful scrutiny of the confessional statement of the accused ABM Nazmus Sakib alias Ashik, it appears that the Magistrate put to him six questions including the question that he was not bound to admit his guilt and make confessional statement and if he confessed, it would be used as evidence against him. He also gave him more than three hours’ time for reflection of mind and deciding about giving confession independently keeping him in seclusion as provided under law and thereafter started recording confession at about 6-15 PM. The Magistrate appears to have recorded his satisfaction as to the voluntariness and spontaneous nature of the confession of the accused.

It appears that the confession has not been vitiated by any illegality on the alleged ground. Through the police apprehended the accused on 18-09-2000 but he was produced before the Magistrate for recording confession on 19-09-2000 at 12-15 hours and there is nothing on record that he was allegedly produced after more than 30 hours of the apprehension before the Magistrate for recording his confession. The alleged ground is as a measure of afterthought and assumed as not tenable in law.”

1. 15.      He lastly submits that the case was proved by evidence and based on materials/evidence on record which calls for no interference by this Court.
2. 16.      The learned Counsels appearing for the condemned-prisoners and appellants by their common contention seek to impeach the impugned judgment and order of conviction and sentence on the five fold arguments.
3. 17.      Firstly, the confession of Md. Milon  was not true and voluntary inasmuch as it was extracted on the point of fear, torture and coercion.
4. 18.      Secondly, the accused and the victim are inter-related so it was impossible for them to commit such offence.
5. 19.      Thirdly, the Court below convicted the co-accused on the basis of confession of Md. Milon without any substantive corroboration.
6. 20.      Fourthly, the Tribunal most erroneously considered the absconsion of accused Mannan, Musaddek and Aslam an incriminating matter which is not a correct view.
7. 21.      In support of their contention they refer the case of State Vs. Lalu Miah and another 39 DLR (AD)118 held:

“ Absconsion by itself is not an incriminating matter, for, even an innocent person, if implicated in the ejahar for a serious crime, sometimes absconds to avoid harassment during investigation by the police. But in some cases a person with guilty knowledge also absconds. It is the facts and circumstances of the case which decide whether the absconsion is due to any guilty knowledge or to any intention to avoid police harassment.”

1. 22.      Fifthly, the Tribunal without appreciating the evidence on record convicted the accused on suspicion which cannot be sustained in the eye of law.
2. 23.      In support of their contention the learned Counsels refer the case of Abu Taher Chowdhury and others Vs. The State 11 BLD(AD)-2 held:

“ Suspicion

Suspicion, however, strong it might be, is not a substitute for evidence on which to base a conviction.

In a gruesome murder when the accused cannot be brought to book for lack of evidence beyond reasonable doubt the prosecution, instead of bewailing on an order of acquittal, should take heed to improve its quality of investigation.”

1. 24.      The learned Counsel lastly submits that the conviction of non-confessing accused based on the confession of accused Md. Milon without any substantive corroboration which cannot be sustained.
2. 25.      In support of their contention they refer the case of Lutfun Naher Begum Vs. The State 27 DLR(AD)-29 held:

“ Confession of an accused cannot be treated as substantive evidence against another accused but that it can only be used “to lend assurance to other evidence.”

1. 26.      In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
2. 27.      Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.

P.W.1, Md. Abdus Sattar is the informant and father of the deceased Sumi. He deposed that the occurrence took place on 13-08-2000 at 10:00 p.m. He was then attached to Gate no.4, Adamdighi Rail Station. On 14-08-2000 Nantu informed him over telephone about the murder of his daughter Shahnaj Akter alias Sumi. He rushed to home and found the dead body at the out yard, which bore marks of reddish injuries. He heard the incident from his  wife Roushan Ara to the effect that at 11:00 p.m. she woke-up and found the door open but her daughter was found missing. She found a ladder attached to wall. His son Sumon, domestic worker Ashraf, locals Rafiqul, Delbor searched her but to no avail. On the following day Rafiqul found the dead body of Sumi inside the pond. On being informed his wife, Delbor, Sadrul and other locals brought the dead body to their out yard, who was strangulated to death and her wearing ornaments were also taken by the accused. His daughter had an affairs with Alam (a Police personnel). He suspected accused Milon and Hubul for committing murder. He lodged the FIR. On 02-09-2000 accused Milon was nabbed by the Police who confessed his guilt and disclosed the names of accused Helal, Aslam, Rabiul, Mannan, Musaddek. They called her out on a pretext to get meet with Alam. Later rapped her to death and dumped her body in a pond. On 08-09-2000 accused Rabiul was nabbed by locals who also confessed his guilt and the same was recorded in a Cassette. The statements of Milon and Rabiul were identical, both of them implicated aforesaid six persons. He proved the FIR as Exhbt. 1 and his signature on it as Exhbt. 1/1. On 14-08-2000 at 6:45 hours some materials were seized and seizure list was prepared. He proved the same as (Mat. Exhbts. i-v). He signed on it. Abdus Sattar and Lukman Hossain were also witnesses of seizure list.

1. 28.      In cross-examination he stated that he received information about the incident from his cousin Nantu at 9:00 a.m. He rushed to home at 10:30 a.m. and came to learn about the incident from his wife. He knew about the confession of accused Milon. I.O. knew about the tape record. hef¡¢a land  was situated 200 yards south east. Rafiqul and Muklesh resided adjacent to his house. Mubarak, Taslim, Nazrul, Hamid, Mokbul and others were not his relations. He denied the suggestion that some unknown kidnappers murdered the victim and by influencing police confession of Milon was extracted and deposing falsely.
2. 29.      P.W. 2, Most. Roushan Ara mother of deceased Sumi and wife of informant. She deposed that on 13-08-2000 at 10:00 p.m. she along with her inmates were in asleep. At 11-12:00 p.m. Victim Sumi was found missing. Her domestic worker, Ashraf, Rafiqul, Baby, Muslem, Delbor and Khoka happened at the scene to whom she disclosed about missing. They unsuccessfully searched her. On the following morning Rafiqul found the dead body of Sumi in the pond. She along with Delbor and Sabdul brought the body to their out yard. She suspected Ranju, Milon, Rabiul alias Hubul. She informed the incident to her husband. On 02-09-2000, Police arrested Milon who himself confessed before the Magistrate and disclosed the complicity of accused Rabiul alias Hubul, Aslam, Helal, Musaddek and Mannan. Deceased Sumi had an affairs with Alam. The accused called victim out with a pretext to get meet with Alam and raped her to death by strangulation. On 08-09-2000 accused Rabiul alias Hubul was arrested who admitted his guilt to the locals which was recorded in Cassette.
3. 30.      In cross-examination she stated that she did not see the occurrence but knew about the confession of Milon. She stated to the I.O. about the recovery of scarp of victim, suspected accused and accused Hubul was nabbed by his father. She denied the suggestion that unknown miscreants raped the victim to death.
4. 31.      P.W.3 Md. Yar Ali Sarder maternal uncle of informant. He deposed that on 13-08-2000 victim Sumi was raped to death. She found her dead body sustaining multiple injuries with sexual violence at the out yard. He suspected Milon, Rabiul alias Hubul with the occurrence. Accused Milon, confessed before the Magistrate and disclosed the complicity of accused Rabiul, Helal, Aslam, Musaddek and Mannan. Rabiul’s father nabbed him (Robiul) with the help of locals who disclosed about identical events.
5. 32.      In cross-examination he stated that victim Sumi had an affairs with Alam. Accused Robiul confessed his guilt in presence of him, Satter and other locals. He stated to I.O. about the dead body found beside the pond. He denied the suggestion that accused Robiul was not nabbed by his father and deposing falsely.
6. 33.      P.W.4 Md. Delbor Pramanik a local witness. He deposed that on the night following 13-08-2000 he searched victim Sumi but to no avail. On the following morning Rafiqul found the dead body in the pond. He along with Sabdul and Rafiqul brought the dead body at the courtyard. He had no knowledge how the victim Sumi died. He was declared hostile by the prosecution.
7. 34.      In cross-examination by the prosecution he denied the suggestion that he was deposing falsely.
8. 35.      In cross-examination by the defence he stated that he did not see the occurrence rather heard about the torture of accused Milon.
9. 36.      P.W.5 Md. Ayub Hossain a local witness. He deposed that on 13-08-2000 at 10:00 p.m. the accused raped the victim to death at Samad’s hef¡¢a land and left her body beside the pond. On the following morning he found the dead body at courtyard sustaining marks of sexual violence. On 02-09-2000 accused Milon was nabbed and he made confession about rape and murder of victim. On 08-09-2000 accused Robiul alias Hubul was nabbed. On interrogation he disclosed the complicity of accused Musaddek, Helal, Aslam, Milon and Mannan in presence of him. The statement was recorded.
10. 37.      In cross-examination he stated that he stated to I.O. about the sexual violence upon victim. He denied the suggestion that due to internal conflict the accused were falsely implicated in this case and deposing falsely.
11. 38.      P.W.6 Md. Belayet Hossain alias Nantu, a local witness. He deposed that on 14-08-2000 he informed the incident to victim’s father. He found the body bore sexual violence. He heard that accused Milon confessed his guilt to the Magistrate, Rabiul alias Hubul was nabbed by his father who confessed his guilt and disclosed the complicity of accused Helal, Musaddek, Aslam, Milon and Mannan about rape and murder of Sumi. The accused Rabiul alias Hubul told that victim Sumi was rapped to death and left her beside the pond. His statement was recorded in a cassette in presence of him(P.W.6). He proved the cassette as Mat. Exhbt.VI. He identified all the accused on dock.
12. 39.      In cross-examination he stated that he did not see the occurrence. He was present at the time of recording the statement of accused Hubul in Cassette. He denied the suggestion that in Cassette the voice was not the voice of Hubul and deposing falsely.
13. 40.      P.W.7 Md. Ashraful was the domestic worker of informant. He deposed that on13-08-2000 at 11:00 PM. Victim Sumi was found missing. He unsuccessfully searched her. On the following morning, Rafiqul found her dead body beside the pond and brought it to courtyard, and  heard that victim Sumi was rapped to death at hef¡¢a land by accused Milon, Hubul, Mannan, Aslam, Helal and Musaddek. After arrest accused Hubul also confessed his guilt which was recorded in Cassette in his presence.
14. 41.      In cross examination he stated that he did not see the occurrence. He denied the suggestion that he was deposing falsely.
15. 42.      P.W.8 Md. Taslim Uddin colleague of informant. He deposed that on 14-08-2000 at 4:00 p.m. he found many people assembled at the house of informant who were whispering that victim Sumi was rapped to death. Subsequently accused Milon confessed that he (Milon) along with Helal, Hubul, Aslam, Musaddek, Mannan raped Sumi at hef¡¢a field to death leaving her beside the pond. Later Hubul was nabbed by his father who confessed his guilt about rape and murder of victim Sumi which was recorded in a Cassette.
16. 43.      In cross-examination he stated that he did not see the occurrence however heard it. He denied the suggestion that he was deposing falsely.
17. 44.      P.W.9 Md. Shakawat Hossain a local witness. He deposed that he heard that on 13-08-2000 at 10/11 p.m. victim Sumi was rapped to death. On the following morning he found her dead body sustaining multiple marks of sexual violence. Later, accused Milon being arrested confessed before the Magistrate about rape and death of victim. Later Hubul was nabbed by his father who also confessed his guilt, which was recorded in a Cassette.
18. 45.      In cross-examination he stated that he did not see the occurrence. He denied the suggestion that he was deposing falsely.
19. 46.      P.W.10 Md. Mosharraf Hossain is a local seizure list and inquest witness. He deposed that on 13-08-2000 at 10:00 P.M. the victim Sumi was raped to death and Police seized articles and prepared seizure list (Exhbt.2). The Police held inquest report (Exhbt.3).
20. 47.      In cross-examination he stated that he did not see the occurrence but heard it. He denied the suggestion that he was deposing falsely.
21. 48.      P.W.11 Muhammad Al Amin, Magistrate, first Class. He deposed that on 02-09-2000 he was attached as first Class Magistrate, Bogra. He recorded the confession of accused Milon after complying mandatory provisions of law. He proved the same as Exhbt. 4 and his signatures on it as Exhbts. 4/1 – 4/10.
22. 49.      In cross-examination he denied the suggestion that he recorded the confession at the instance of Police.
23. 50.      P.W.12 Dr. Nihar Ranjan Majumder, held autopsy upon the cadaver of Shahnaj Akter Banu alias Sumi. He deposed that on 15-08-2000 he was attached as a lecturer of Bogra Mohammad Ali Medical College, Forensic Department. He held autopsy upon the cadaver of the deceased Shahnaj Akter Sumi and found the following injuries:

“ 1. One continuous, transverse ligature mark present below the thyroid cartilage, breadth ½”.

2. One bruise on the tip of nose, size ¾” x ½ “.

3. One bruise on the back of left elbow joint, size 1″x ½” .

4. Multiple bruises on the upper and medial aspect of both thighs of various sizes.

5. Multiple serach abrasions on the upper and medial aspect of both thighs and genitalia of various sizes.

6. Extensive bruise in the labia magora and minora of both side and vaginal canal. On detailed dissection extravasations of clotted blood found present at the side of the injuries. The skin, soft tissue, muscles, trachea were found highly congested. Hyoid bone both corner was found fractured. Uterus empty. Stomach contains semi digested food. All the visceras were found highly congested . High vaginal swab was taken for pathological examination and sent to the department of pathology. S.Z.M.C. Bogra, as per memo.  No. SZMC/PM /200 /265.  Dated 16.8.2000.

Death in my opinion:

Was due to asphyxia as a result of strangulation by ligature following forceful sexual act on her which was ante mortem and homicidal in nature.”

1. 51.      He proved the post mortem report as Exhbt.5 and his signature on it as Exhbt.5/1.
2. 52.      In cross-examination he denied the suggestion that he prepared a perfunctory report.
3. 53.      P.W.13 S.I. Md. Shamsul Alam, investigated the case. He deposed that on 14-08-2000 he was attached as S.I. of Adamdighi Police Station. The case was entrusted to him for investigation. He visited the place of occurrence. Prepared sketch map, seized alamats, recorded the statements of the witnesses under Section 161 of the Code. He arrested the accused Milon who made confession before the Magistrate. During investigation he received a post mortem report wherein it was opined that the victim was raped to death by strangulation. After investigation he submitted charge sheet under section 9(3) of the Ain 2000 accusing accused Milon, Aslam, Robiul alias Hubul, Musaddek, Helal and Mannan.
4. 54.      In cross-examination he denied the suggestion that after arrest the accused  Milon was put to inhuman torture and extracted confession from him. He further denied that he held a perfunctory investigation and submitted charge sheet.
5. 55.      These are all of the evidence on record adduced by the prosecution to prove the charge.
6. 56.      It is indisputable that slain Shahnaj Akter Banu Sumi was raped to death.
7. 57.      On going to the materials on record it transpires that prosecution in all examined thirteen witnesses out of twenty charge sheeted witnesses. Of whom, P.W.1 is the informant and father of deceased. P.W.2 is the mother of the deceased, P.W. 3 is the maternal uncle of the informant, P.Ws. 4, 5, 6 are the local witnesses, who heard the occurrence. Of the locals, PW-4, was declared hostile. P.W.7 domestic worker of informant. P.W.8 colleague of informant. P.Ws.9 and 10 are the local witnesses, of whom P.W.10 is the witness of seizure list and inquest report. P.W.11 Md. Al Amin, Magistrate, first Class who recorded confession of accused Milon (Exhbt.4), P.W. 12 Dr. Nihar Ranjan Majumder who held autopsy upon the cadaver, P.W. 13 S.I. Md. Shamsul Alam investigated the case and submitted charge sheet.
8. 58.      It is true that there is no eye witness to the occurrence but the case is absolutely rests upon the confession of accused Milon (Exhbt.4) and extra-judicial confession of accused Rabiul alias Hubul. The material excerpt of confession of Milon( Exhbt. 4) reads as hereunder:

“B¢j Bfe¡l ¢S‘¡p¡h¡­c S¡e¡¢µR ®k, Na 13-08-2000 a¡¢l­M ¢ch¡Na l¡­a l¢hEm ¢fa¡ q¡h¤, ®qm¡m ¢fa¡ B­mg, Bpm¡j ¢fa¡ eSl²m Jl­g eS¤, j¤p¡­ŸL ¢fa¡ je­pl, j¡æ¡e ¢fa¡ p¡j¡c Hhw B¢j l¡a Ae¤j¡e 11 V¡l ¢c­L Bj¡­cl fË¡ee¡bf¤l NË¡­jl p¡š¡­ll h¡¢sl ®M¡m¡­e k¡Cz ®qm¡m J l¢hEm p¡š¡­ll ®j­u n¡qe¡S ®k O­l b¡­L ®pC O­ll S¡e¡m¡u q¡a ¢c­u ®V¡L¡ j¡­l Hhw n¡qe¡S­L h­m a¡l ®fË¢jL Bmj H­p­Rz n¡qe¡S a¡l Ol ®b­L ®hl qu Hhw jC ¢c­u h¡¢sl fË¡Q£­ll Ef­l E­W Hhw Bpm¡j n¡qe¡S­L q¡a ¢c­u d­l fË¡Q£­ll h¡C­l e¡j¡uz Bj¡­cl p­‰ AÒf ¢LR¤ c§­l Ae¤j¡e 20/25 q¡a k¡Ju¡l f­l n¡qe¡S Bm­jl Lb¡ ¢S­‘p L­l z Bmj f¤L¥l f¡­s h­m ®qm¡m S¡e¡uz Bpm¡j L¡fs  ¢c­u n¡qe¡­Sl j¤M ®Q­f d­l Hhw ®qm¡m n¡qe¡S­L fy¡S¡­L¡m¡ L­l n¡qe¡S Jl­g p¤¢jl ¢fa¡l h¡¢sl f§hÑ ¢c­L Ah¢Øqa j¡æ¡­el ¢fa¡l hef¡¢al S¢j­a ¢e­u k¡u z B¢j ¢eLVhaÑ£  f¤L¥­ll f¡­l h­p f¡q¡s¡u ¢Rm¡j k¡­a AeÉ ®m¡LSe ®Vl e¡ f¡u zfËb­j ®qm¡m, a¡l fl Bpm¡j, a¡lfl j¤p¡­ŸL, a¡lfl l¢hEm, a¡lfl j¡æ¡e Hhw phÑ­n­o B¢j n¡qe¡S Jl­g p¤¢j­L  doÑZ L¢lz  doÑ­el pju n¡qe¡S h¡d¡ ®cu z n¡qe¡­Sl q¡a f¡ ®S¡l L­l d­l ®l­M Hhw  j¤­M L¡fs ®Q­f d­l doÑZ Ll¡ quz doÑ­el f­l Bpm¡j J ®qm¡m n¡qe¡­Sl Jse¡  ¢c­u JM¡­eC n¡qe¡­Sl Nm¡u gy¡p m¡N¡u Nm¡u ®fy¢Q­u j¡l¡l pju j¡eÓÀ¡e n¡qe¡­Sl  f¡  J l¢hEm q¡a d­l ¢Rm z  j¤p¡­ŸL Bj¡­L HC  OVe¡  fËL¡n Ll­a ¢e­od L­l z ®qm¡m Bj¡­L h­m ®k HC OVe¡ g¡p Ll­m  ®a¡­L j¡lh z ®qm¡m, Bpm¡j J l¢hEm HC ¢ae Se n¡qe¡­Sl m¡n f¤L¥­ll f§hÑ f¡­s ¢e­u B­p q¡a ¢c­u a¥­m d­l z n¡qe¡­Sl m¡n a¡l¡ f¤L¥­ll  f§hÑ f¡­s l¡­M f¡¢e­a, j¡b¡¢Vl ¢LR¤ Awn f¡¢el Ef­l f¤L¥­ll f¡­s j¡¢V­a ¢Rm z Bjl¡ ph¡C Q­m ®Nm¡j z B¢j h¡¢s­a ®Nm¡j z fl¢ce ¢h­L­m B¢j ¢hl¡jf¤­l k¡C z

1. 59.      We find that the occurrence took place on 13-08-2000 and accused Milon was arrested on 02-09-2000 and on the same day his confession was recorded.
2. 60.      P.W.11 Md. Al Amin, Magistrate, first Class, recorded the confession of accused Milon (Exhbt. 4) after complying all legal formalities as laid down in Section 364 of the Code. He was cross-examined by the defence but nothing could be elucidated to shake its credibility in any manner whatsoever.
3. 61.      It is pertinent to point out that at the time of recording confession by P.W.11 accused Milon did not raise any objection regarding its truth and voluntariness but later on, at the time of examination under section 342 of the Code, he offered an explanation to the effect that the confession was extracted under coercion and torture. The relevant excerpt of the said statement reads as hereunder:

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1. 62.      We have gone through the above contents. It appears to us that he made out a new story of torture, which are inconsistent with that of the evidence on record and  attention to those facts were not drawn to the investigating officer(P.W.13) at the time of cross-examining him who earlier arrested him and produced before the Magistrate for recording confession. So the same should be left out of consideration.
2. 63.      It further appears to us that above confessing accused implicated himself in commission of rape and murdering. The materials on record shows that his confession was shown as voluntary and inculpatory in nature. So it is well established that confessional statement if found inculpatory in nature and also true and voluntary it can be used against its maker and conviction can solely be based on it without any further corroborative evidence.
3. 64.      In the instant case the confession made by accused Milon (Exhbt.4) was not only inculpatory in nature, but also true and voluntary and as such the Tribunal very rightly based solely on the confession and correctly convicted and sentenced the above accused by the impugned judgment and order, having duly found him guilty for the offence committed under Section 9(3) of the Ain 2000.
4. 65.       In the case of Islam Uddin (Md.) alias Din Islam  Vs. The State 13 BLC(AD)81 held:

“It is now settle principle of law that  Judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker of the same. The High Court Division has rightly found the judicial confession of the condemned-prisoner true and voluntary and considering the same, the extra judicial confession and, circumstances of the case, found the condemned-prisoner guilty and accordingly imposed the sentence of death upon him. ” 

1. 66.      Similar views were taken in the cases of Abdur Rashid and others Vs. The State 3 BLD 206, Amir Hossain Vs. The State 6 BLD(AD)193, Gouranga Chandra Paul Vs. The State 59 DLR 17, 29 DLR(SC)27, Shajahan Ali (Md.) alias Md. Shahjahan Vs. The State 59 DLR 396, Hazrat Ali  and others Vs. The State 44 DLR(AD) 51, The State Vs. Abul Kalam Azad and others 8 BLC 464. Therefore we hold that the Court below rightly convicted the condemned prisoner Md. Milon after considering the evidence on record.
2. 67.      We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d) There must be clear and unequivocal proof of the corpus delicit.

e) The hypothesis of delinquency should be consistent with all the facts proved.

Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

1. 68.      It further appears to us that accused Milon in his Judicial confession (Exhbt.4) disclosed the complicity of accused Rafibul alias Hubul along with other accused particularly in respect of direct participation of commission of rape and murder. Accused Rabiul alias Hubul                                          was arrested on 08-09-2000 with the help of his father and locals. Later he confessed his guilt and complicity of above co-accused in commission of rape and murder of deceased Sumi in presence of PWs.1-8. His statements was also recorded in the cassette in their presence which was proved by P.W.6 as Mat. Exhbt. VI. The voice recorded in cassette was also proved by the above witnesses. The contents of Judicial confession of accused Milon (Exhbt.4) and statement of accused Rabiul alias Hubul recorded in cassette (Mat. Exhbt. VI) are identical in respect of complicity of all accused with regards to rape and murder of deceased Sumi. So the evidence of all these PWs. regarding the commission of offence by accused Rabiul alias Hubul are consistent uniform and corroborative with each other with all material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to depose falsely against him. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility. Therefore, considering the evidence on record and substantive corroborative evidence, the Tribunal rightly convicted the accused Rabiul alias Hubul.
2. 69.      It appears to us that there is absolutely no evidence against other four accused namely Helal, Aslam, Musaddek, and Mannan alias A. Mannan, save and except their names were disclosed by other two co-accused, viz Milon and Rabiul alias Hubul. We also find that there is no substantive corroboration with the Judicial and extra-Judicial confessions of co-accused Milon and Rabiul alias Hubul. So such confessions should not be used against them.
3. 70.      It is well settled that the confession of an accused is not a substantive piece of evidence against co-accused who did not confess and such evidence alone without any substantive corroborative evidence cannot form basis of conviction of co-accused. With this regard reliance is being placed in this case of Mofazzal Hossain alias Mofa and others Vs. State 58 DLR-524. This view receives support in the cases of State Vs. Rafiqullah Khan 7 BLC-480, Ustar Ali Vs. State 3 BLC (AD)53, Lutfurnahar Vs. State 27 DLR(AD)29, Babor Ali Molla Vs. State 44 DLR(AD)10, State Vs. Lalu Mia 39 DLR(AD)117, Amir Hossain Vs. State 37 DLR(AD)179, Joygun Bibi Vs. The State 12 DLR(SC) 156.
4. 71.      Therefore we hold that the Tribunal without considering the settled principle of law and the materials and evidence on record most erroneously convicted them which cannot be sustained.
5. 72.      The explanation given under the section includes within the term “ offence” used in the section, the abetment or attempt to commit the offence. The language of the section does not render the confession of a co-accused as evidence within the definition of section 3 of the Evidence Act. It simply says that the Court may “take into consideration such confession”. In the case of Bhuboni Sahu Vs. The King, reported in L.R.76 Indian Appeals page 147, the Privy Council stated as follows:

“But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.”

1. 73.      In view of the observation above, the questions arose in what way can a confession be used in support of other evidence and whether it can be used to fill in missing gaps. The questions were considered by the Supreme Court of India in the case of Kashmira Singh Vs. State of Madhya Pradesh, reported in 1952 S.C.R.(India) 526. After referring approvingly to the observations made by Sir Lawrence Jenkins in the case of Emperor Vs. Lalit Mohan Chockerbutty, reported in (1911)I.L.R.38 Calcutta, 559 at 588 where it was said that such a confession can only be used to “ led assurance to other evidence against a co-accused” and to the observation of Reilly, J. in re Periyaswami Moopan reported in (1931) I.L.R. 54 Madras, 75 at 77 that “where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that  evidence”, the Supreme Court of India held as follows:

“The proper way to approach a case of this kind is first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise when the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

1. 74.      We may as well refer to the views expressed by the Supreme Court of Pakistan is two cases. In the case of Joygun Bibi Vs. The State, reported in (1960) 12 DLR(SC)156 it was held that the High Court was not justified in discarding the confession of co-accused Abdul Majid, in connection with the question of the guilt of the appellant Joygun Bibi. It was found that confession of Abdul Majid was by no means the only material against Joygun Bibi but that there was other evidence which, along with the confession of Abdul Majid, pointed to her guilt.
2. 75.      In the case of Maqbool Hussain Vs. The State, reported in (1960) 12 DLR (SC) 217 the Supreme Court of Pakistan made the following observations regarding the use of a confession under Section 30 of the Evidence Act-

“The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substantive evidence against the other person sufficient to sustain his conviction. It is well settled that there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime. Before a confession made by a co-accused could be adverted to, in adjudging the guilt of that person.”

1. 76.      The upshot of the discussions above is that confession of an accused cannot be treated as substantive evidence against another accused but that it can only be used “ to lend assurance to other evidence.”
2. 77.      In the instant case, there is no doubt that the above four appellants have been implicated in the murder in the confessional statement of two accused, but the said confessional statements cannot be taken into consideration unless there exists independent evidence, direct or circumstantial, to connect the appellants with the murder. There is no direct evidence in this case against them. So such confessions should not be used against them.
3. 78.      In Indian Jurisdiction we find that while dealing with a case as regards the confession of co-accused affecting himself and some other persons who were being tried jointly with him for the same offence, their Lordships of the Supreme Court of India have laid down the law as follows:

“ In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right,   AIR 1964 SC 1184.

In a case it has been observed as follows:

“In dealing with a case against an accused person, the Court can not start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then  it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in section 30, AIR 1949 PC 257+ AIR 1952 SC 159.

1. 79.      Under section 30, Evidence Act, confession of a co-accused can only be taken into consideration but is not in itself substantive evidence. AIR 1957 SC 381+AIR 1964 AP 548.
2. 80.      Where such statement is exculpatory it cannot be used against another accused in support of his conviction. It would be dangerous to do so. AIR 1967. Goa 31 at p.25.
3. 81.      It has been laid down that confessions of co-accused are not evidence as defined in section 3 and no conviction can be founded thereon. But, if there was other evidence on which a conviction be based, they can be referred to as lending assurance to that conclusion and for fortifying it. AIR 1956 SC 56.
4. 82.      The law is well-settled that the confession of a co-accused is not substantive evidence in the sense that conviction on that alone must stand and section 30 has merely given the Court a discretion to call it in aid inappropriate case. It can be used only for lending assurance and is to be merely an  element in considering the evidence in the case. If there is no other evidence or if the other evidence in the case is insufficient to establish the case against the accused, the confession cannot betaken into consideration against the co-accused. It cannot be called in aid to supplement evidence otherwise insufficient and in no case can  it be used to fill up gaps in the prosecution evidence. AIR 1957 A.P. 758 + AIR 1952 SC 139+AIR 1956 SC 56+AIR 1957 Orissa 172.
5. 83.      The confession of a co-accused person can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. AIR 1952 SC 159+air 1964 SC 1184+AIR1965 Orissa 170.
6. 84.      A confession can only be used to “lend assurance to other evidence against a co-accused AIR 1966 Pat. 448.
7. 85.      Their Lordships held that one of the conditions in section 30 of the Evidence Act is that the confession must implicate the maker substantially to the same extent as the other accused against whom it is sought to be taken into consideration. Where he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator to the crime committed by the other accused, the confession cannot be used at all against the other accused. But because there was differences between his confession and the confessional statement of the other accused, the confessional statement cannot be condemned in limini. AIR 1957 SC 216+(1966) 142 Cut LT 1140.
8. 86.      The confessional statement made by one accused could only be taken into consideration against other co-accused if there is other acceptable evidence against the other co-accused for the purpose of lending further assurance which the Court may need. Hence in the absence of any other evidence in this case the confessional statement made by any one of the appellants cannot be used against the other appellants AIR 1964 SC 1184+1977 Crl.LJ 1309.
9. 87.      The confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending some assurance to the verdict. AIR 1956 SC 56+AIR 1968 SC 832.
10. 88.      The Tribunal convicted those accused considering their absconsion for certain period of time, and the prosecution also tried to make nexus between the absconsion and the crime of murder.
11. 89.      According to the submissions from prosecution and observations made by the Tribunal, it indicate that some accused remained absconding from the place of occurrence for certain period, which is a circumstances leading to the inference of guilt. In our view it is mere submissions and observation of the Court below. The prosecution measurably failed to establish by evidence that soon after the occurrence, the accused had any responsibilities to discharge their duties towards the occurrence. It is well settled that mere abscondence cannot always be a circumstances leading to the inference of guilt of the accused. In this case, there is no evidence against the accused. Hence their subsequent abscondence cannot be treated as a circumstances leading to the inference of involvement in the crime. Mere abscondence cannot always be a circumstances which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime.
12. 90.      With this regard reliance are being placed in the cases of Monsur Ali Vs. The State 13 BLC 196. Similar views were taken in the cases of State Vs. Badsha Molla, 41 DLR 11, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR(AD)117, State Vs. Sree Ranjit Kumer Promanik, 45 DLR 660, Ali Vs. Crown 6 DLR(W.P.)52, Rahman Vs. The State of U.P. AIR 1972(SC)110, Shajahan Vs. The State 46 DLR-575, Mojibur Rahman Vs. The State 13 MLR-88.
13. 91.      In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the prosecution successfully proved the charge against accused Milon and Rabiul alias Hubul beyond all reasonable doubt but failed to prove the charge against accused Aslam, Musaddek, Helal,  Mannan alias A. Mannan.

In the result:-

(A) Death reference no. 43 of 2006 is accepted in part.

(B) The impugned Judgment and order of conviction and sentence dated 18-05-2006 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal no.2, Bogra in Nari-O-Shishu Case no. 288 of 2004, so far as it relates to the accused Milon and Rabiul alias Hubul is maintained. Sentences imposed upon them stand confirmed. Sentence of death shall be executed in terms of the Judgment recorded in Nari-O-Shishu Case no. 288 of 2004.

(C) The impugned judgment and order of conviction and sentence dated 18-05-2006 so far as it relates to accused Aslam, Musaddek, Helal and Mannan alias A. Mannan is set aside, they are acquitted from the charge. They be set at liberty if not detained in any other case.

D) Accordingly Criminal appeal no. 2185 of 2006 is allowed in part.

E) Jail appeal nos. 407 of 2006 and 409 of 2006 are dismissed.

F) Jail appeal nos. 408 of 2006, 410 of 2006, 411 of 2006, and 412 of 2006 are allowed.

The Office is directed to send down the records at once.

Ed.