The State Vs. Md. Tuku Biswas

Appellate Division Cases

(Criminal)

PARTIES

The State …………………………….Appellant

-Vs-

Md. Tuku Biswas…. …………………..Respondents

JUSTICE

Mainur Reza Chowdhury. J

Mohammad Fazlul Karim. J

Syed J. R. Mudassir Husain. J

JUDGEMENT DATE: April, 9th 2002

Section 364 Code of Criminal Procedure Act V of 1898.

Confessional statement of the co accused which is undoubtedly no evidence against the accused appellant. The purpose of examination under section 364 Cr PC is to explain the circumstance against the accused stating the evidence in support of the charges but in the instant case the only material before the Court against the accused respondent was the confessional statement of co accused which is no legal evidence against the convict respondent in the absence of any other corroborative evidence. Admittedly there is no eye witness to the occurrence and there was no corroboration of the confessional statement of the co-accused implicating the accused respondent . Thus there is no legal evidence against the accused respondent implicating in the case ……………………(7)

Criminal appeal No. 1 of 1995 (From the judgment and order dated 16tn February 1993 passed by the High Court Division in Death Reference No. 10 of 1988 (Jessore), 13 of 1991 (Dhaka)

Mr Abdur Razzaque Khan, Additional Attorney General, instructed by Mr Sajjadul Huq.

Advocate -on-Record. …………………..For the Appellant

Ex-parte…………………….. Respondents

JUDGMENT

1. Mohammad Fazlul Karim J. The accused respondent along with others were tried under section 396/412/34 of the Penal Code with allegations that on 1.10.1986 at about 8 P.M in the night informant P.O. 1 Babu Mia, P. W. 2 Jogal Kumar Saha, P. W. 3 Subal Kumar Saha and deceased Monsur AH were returning home in the boat of deceased Entaz. Ali with bundles of clothe and cash money from Bumagati hat (weekly) market. At about 8.30 P.M. when they with their boat reached at the ” Mohana” of the river nerar sonapur village, about 10/12 dacoits came by boat and got into their boat and started i committing dacoity. The said dacoits took away ^ their cash money and bundles of clothe from their possession. They threw the boat-man Entaz Ali into the river and the boatman’s deadbody was recovered from the river on the nest Friday. When informant P. W. 1 Babu Mia’s father Mouser Ali shouted, the dacoits gave him blows by daggers. The dacoits went away, Thereafter injured Monsur Ali was first taken to the house of one Omer Molo, From there he was taken to Shalika hopital and from the said Salika hospital he was sent to Magura from where he was sent to Dhaka where he (Monsur Ali died. Informant P. W. 1 Babu Mia lodged First information Report with P.S. Shalika, Distract Magura on 2.10 1986 at 12-30 P. M. Police upon investigation submitted charge sheet against 12 accused out of whom two convicts accused Tuku Biswas and Fashiur Rahman Mola remained absconding at the time of trial. Upon trial respondent no. 1 was convicted under section 396/34 of the Penal Code and was sentenced to death and other accused were convicted and sentenced to 3 years and to pay fine of Tk. l,000/-in default to suffer rigorous imprisonment for 3 months each.

2. The learned Sessions Judge accordingly send the death reference No. 10 of 1988 (Death Reference No. 13 of 1991 (Dhaka) arising out of Sessions Case No. 9 of 1988 of the Court of Sessions Judge, Magura for confirmation of the death sentence passed on 7.12.1988 upon absconding accused Md. Tuku Biswas under section 396/34 of the Penal Code. The High Court Division, however rejected the reference setting aside the conviction and sentence of the accused respondent and the case was sent back to the Sessions Judge and retrial of accused Tuku Biswas from the stage of examination under section 342 of the Code of Criminal Procedure after his arrest.

3. Leave has been granted to consider the submission that the trial of the accused respondent having been held in absentia after observing all formalities as per section 334 B of the Code, The absconding accused could not be given any opportunity for examination under section 342 of the Code and as such the learned Judges of the High Court Division acted wrong”•• ly in rejecting the reference and sending the case for retrial from the stage of the examination under section 342 of the Code. Mr. Abdur Razzaque Khan, the learned Additional Attorney General appearing for the State, submitted that the trial of the accused respondent having been held in absentia after observing all formalities as per provision of section 339 B of the code, the absconding accused could not be given any opportunity for examination under section 342 of the Code of Criminal Procedure. Admittedly the accused could not be examined under section 342 of the Code of Criminal Procedure nor his defendant Advocate was asked to explain the circumstances that the confessional statement of the co-accused implicating the accused in the case in his statement under section 342 of the Code of Criminal Procedure.

4. On perusal of the judgment of the Sessions Case it appears that the only evidence against the accused petitioner as under: “On a perusal of the judicial confession Ext.3(ka) dated 18.10.1986 made by convicted accused Babor Ali, son of Kashem Biswas, we find that he has stated that in the night of occurrence on the asking of his cousin accused Nuru Biswas he agreed to go to commit decoity in Bunagati hat, that in the night of occurrence he along with other dacoits got into a boat, that the dacoits committed dacoity in the boat in the river, that when one of the ‘Mohajones’ raised cry, condemned accused Tuku gave blow dagger to him, that he tried to stop the condemned accused Tuku, the latter threatened him and told him to keep silent, that subsequently the booties obtained by dacoity were distributed among the dacoits, among whom he recogised accused Nuru, condemned accused Tuku, accused Afzal, accused Babar Ali son of Fatik and absconding accused Fashiar.”

5. Thus in his judicial confession convicted accused Babor Ali has implicated himself by saying that by agreeing to commit dacoity he went with the dacoits and committed dacoity with murder and implicated condemned accused Tuju Biswas and other convicted accused.

6. Convicted accused Ratan Molla stated in his confessional statement Ex.3 dated 21.10.86 under section 164 Cr. P. C. “that condemned accused Tuku Biswas called him on the date of occurrence and asked him to come with him, that he went to their boat along with him and found some people of his area such as accused Nura, Afzal, Babar Ali of village kullia and antoher accused Babor Ali, Nawsher, Kashem and Razzaque as accused Tuku was a dangerous man on his asking he started rowing the boat, that when their boat came near the ‘ Chowmohoni’ their boat created obstacle to another boat when condemned accused Tuku along with others such as accused Nuru and Babor Ali of Hatbaria got into the said boat, took away the bundles of cloths; that at the time commission of dacoity the condemned accused Tuku gave blow by dagger in the abdomen of boat man of that boat who fell down in the river, that the condemned accused Tuku gave blow by dagger to a bepari meaning deceased (Monsor Ali), that the booties obtained by dacoity were kept in the house of his brother Razzaque and that subsequently the dacoits divided the booties amongst themselves out of which he got Tk 25/- and two pieces short,” Thus convicted accused Ratan Molla also fully implicated himself by agreeing to raw the boat and actively assisted the dacoits including the condemned accused Tuku Biswas in committng dacoity with murder.

7. Thus from the above it appears that the only evidence against the accused respondent is the confessional statement of the co accused which is undoubtedly no evidence against the accused appellant. The purpose of examination under section 364 is to explain the circumstance against the accused stating the evidence in support of the charges but in the instant case the only material before the Court against the accused respondent was the confessional statement of co accused which is no legal evidence against the convict respondent in the absence of any other corroborative evidence. Admittedly there is no eye witness to the occurrence and there was no corroboration of the confessional statement of the co-accused implicating the accused respondent . Thus there is no legal evidence against the accused respondent implicating in the case, If the case is sent on remand to the trial Court for retrial of the accused respondent from the examination under section 342 of the Code of Criminal Procedure that the same would cause prejudice to the accused, As a matter of fact the reference ought to have been rejected for want of legal evidence as it is clear that there is no legal evidence against the accused respondent to support the conviction under section 396/34 of the Penal Code. In that view of the matter in order to secure substantial justice in the case we are inclined to set aside the impugned judgment setting the aside conviction and sentence and sending back the case to the trial from the stage of his examination under section 342 of the Code of Criminal Procedure while rejecting the reference.

8. Accordingly, we reject the reference against the accused respondent while setting aside the impugned judgment and there by set aside the conviction and sentence passed against Tuku Biswas. The accused respondent, if meanwhile apprehended be set at liberty, if not wanted in any other connection. The appeal is allowed.

Ed

Source: I ADC (2004), 182

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