Manik Vs. The State, 4 LNJ AD (2015) 2013

Case No: Criminal Appeal No. 83 of 2009

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Diliruzzaman,Mr. Mahbubur Rahman,,

Citation: 4 LNJ AD (2015) 2013

Appellant: Manik

Respondent: The State

Subject: Circumstantial Evidence, Confessional Statement,

Delivery Date: 2015-01-19


APPELLATE DIVISION
(CRIMINAL)
 
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J.

 
Judgment on
19.01.2015
  Manik
. . . Appellant
=Versus=
The State
. . . Respondent
 
Words and Phrases
Gang Rape
The extent of the injury, i.e. complete tear of cervix (Uterus) resulting in hemorrhage and shock does not necessarily indicate gang rape. . . . (25)

Nari-O-Shishu Nirjatan Daman Ain, (VIII of 2000)
Section 9(2)
If there had been gang rape and the other accused were for any reason either discharged or acquitted after trial that cannot exonerate the accused person-appellant before us from his liability if there is sufficient evidence and materials on record to sustain his conviction. If other accused persons have been wrongly or illegally left out then it is the responsibility of the prosecution to take whatever steps are felt to be necessary in the circumstances. ...(25)

Evidence Act (I of 1872)
Sections 8, 24 and 27
The accused was arrested on 22.3.2003 and taken on remand. When interrogated, the accused made certain extra judicial confessions which led to the recovery on the same day of 18 items of clothing, bedding and old paper from the room of the accused consequent upon his confession. Six of these items contained blood stains. On the same day again consequent upon the confession of the accused, two other items, namely old sack and piece of jute rope both with blood stains, were recovered from the roof of the pucca latrine of the accused. The recovery of these items, particularly the blood stains found, fully corroborates the confession of the accused to the effect that he killed the victim in his room and in the process blood from Lubna’s mouth fell on the bed sheet and that he wiped that blood with his lungi and carried the dead body in a sack and left the body near a bamboo bush. In view of this cross corroboration we cannot ignore the circumstantial evidence of the blood stained clothing and bedding nor can we disbelieve the truth of the confessional statement of the accused. . . .(26)

Nari-O-Shishu Nirjatan Daman Ain, (VIII of 2000)
Section 9(2)
Code of Criminal Procedure (V of 1898)
Section 376
Age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. In view of such matter and the decisions referred the Appellate Division was inclined to commute the sentence of death to one of imprisonment of life. ...(31)

For the Appellant : Mr. Mahbubur Rahman, Senior Advocate instructed by Mr. Md. Zahirul Islam, Advocate-on-Record.
For the Respondent : Mr. Khandaker Diliruzzaman, Deputy Attorney General, instructed by Mrs. Mahmuda Begum, Advocate-on-Record.

Criminal Appeal No. 83 of 2009
 
JUDGMENT

Muhammad Imman Ali, J.
 
This appeal, by leave, is directed against the judgement and order dated 17.04.2008 passed by the High Court Division in Death Reference No. 147 of 2004 along with Criminal Appeal No. 3720 of 2004 and Jail Appeal No. 1132 of 2004 accepting the reference and dismissing Criminal Appeal No.3720 of 2004 and Jail Appeal No. 1132 of 2004.

The prosecution case, in brief, was that on 19.03.2003 the informant’s daughter victim Lubna Nahid Dipa at about 5 p.m. went to the house of her maternal grandfather to pay some money, but she did not return. The informant sent one Bilkis to look for Lubna, but she was not found and at night the informant, having suspected the convict Manik, went to his house at about 1:00 a.m. along with his son and brother-in-law and asked about Lubna, but did not get any information and thereafter on the next day i.e., 20.03.2003 at about 6:00 a.m. daughter of one Abdul Aziz informed that the dead body of Lubna was lying in a bamboo bush of Mohor Ali and then the informant along with this other relatives went to the place and saw his daughter in half naked condition and suspected that his daughter was killed by strangulation after rape by some persons and accordingly the First Information Report (F.I.R.) was lodged on 20.3.2003 which was recorded as Meherpur Police Station Case No. 14 dated 20.03.2003. 

The Investigating Officer visited the place of occurrence, prepared the sketch map with index, prepared inquest report, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure.
The convict appellant and other three accused persons were arrested by the police on mere suspicion. Thereafter the convict appellant made a confessional statement on 27.3.2003 implicating himself with the alleged offence.
After completion of investigation police submitted Charge-sheet under sections 9(2) of the of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against the appellant. The other accused persons were not sent up in the charge sheet.
Thereafter, the case was transferred to the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal, Meherpur for trial and charge was framed against the convict- appellant under section 9(2) of the Nari-O.Shishu Nirjatan Daman Ain, 2000 read with section 201 of the Penal Code which was read over to the appellant to which he pleaded not guilty and claimed to be tried. 

During trial the prosecution examined as many as 20 witnesses and the defence examined 2 witnesses. During the course of examination under section 342 of the Code of Criminal Procedure, the appellant again claimed to be innocent and adduced two defence witnesses.

After hearing the parties and considering the evidence and materials on record the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal, Meherpur, by judgement and order dated 12.10.2004 convicted the appellant under sections 9(2) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him to death with a fine of Tk. 1,00,000/-.

Reference under section 374 of the Code of Criminal Procedure was made to the High Court Division for confirmation of the sentence of death, which was registered as Death Reference No.147 of 2004. Before the High Court Division Criminal Appeal No. 3720 of 2004 and Jail Appeal No.1132 of 2004 were preferred by the condemned prisoner, which were heard along with the death reference. By the impugned judgement and order, the High Court Division accepted the reference and dismissed Criminal Appeal No. 3720 of 2004 and Jail Appeal No.1132 of 2004. Being aggrieved by and dissatisfied with the impugned judgement and order of the High Court Division the appellant preferred Criminal Petition for Leave to Appeal No. 504 of 2008 before this Division and leave was granted on the following submissions of Mr. Mahbubur Rahman, learned Senior Advocate appearing for the petitioner:
  1. That the Courts below failed to consider some important aspects in the case, i.e. not holding of chemical examination of the blood found in the seized clothes of the convict-petitioner and also found at the place of recovery of the dead body and also in the seized clothes of the victim as well as the seized jute bag.
  2. That the Courts below did not consider the age of the convict petitioner who was 16 years as available from the record of the case; and
  3. That though 4 accused persons were arrested but charge sheet has been submitted only against the convict-petitioner although from the facts and circumstances of the case it was shown that the convict petitioner alone could not commit the alleged offence and that the cause of death of the victim is rape. From the post-mortem report it appears that the rape was committed by more than one person. The Courts below erred in not holding that the offence alleged has been committed not by the convict petitioner alone. There is also no direct evidence to prove the offence of rape and killing of the victim by the convict-petitioner, inasmuch as the story of causing death as disclosed in the confessional statement of the convict do not tally with the post-mortem report, since there is no mention of any mark of finger pressure on the throat of the victim.”  
Mr. Mahbubur Rahman, learned Senior Advocate appearing on behalf of the appellant submitted that the accused is a child within the definition of the Children Act, 1974 and was aged 16 years at the time of the occurrence, but this was not taken into account during the course of trial and as such the trial of the accused as an adult is vitiated and the sentence of death penalty is illegal.

We may deal with this submission outright by reference to the materials on record, namely confessional statement of the accused dated 27.3.2003 and the examination of the accused under section 342 of the Code of Criminal Procedure which was dated 11.02.2004. In both of these the age of the accused is shown as 20 years. The charge against the accused was framed on 10.6.2003 (which was the relevant date for considering the age of the accused under the Children Act, 1974) when the accused would have been above 19 years of age. The only other material on record showing the age of the accused is a doctor’s prescription dated 17.3.2003 which shows the accused to be aged 16 years at that time. This, however, is a self-serving piece of evidence produced by the accused through D.W.1. It cannot be taken to be reliable evidence of age. Furthermore, the aspect of the accused being child, was never raised before the trial Court or the High Court Division. The argument put forward by the learned Counsel for the appellant is at best tenuous.

The learned Counsel next submitted that this is a case of no legal evidence against the accused. There was no eye witness to the alleged occurrence of rape and murder, and the post mortem report and the so-called confessional statement of the accused do not at all mention rape of the victim. He also pointed out that the First Information Report (F.I.R.) indicates that the victim was killed after gang rape but no evidence has been led by the prosecution about gang rape and, in fact, other accused persons were not sent up in the charge sheet and were dropped from prosecution. He submitted therefore, that the prosecution has not been able to make out a case of rape and murder.

With regard to the evidence of witnesses relating to the accused calling the victim to his house, he submitted that such a story is not corroborated by any of the witnesses since P.Ws. 9, 11, 12 and 15 did not mention the fact that the accused called the victim and invited her to his house in the evening of the occurrence. He submitted that as such the fact of the victim having been invited by the accused to his house cannot be used as a circumstance against him.

The learned Advocate next submitted that the only evidence relating to complicity of the accused with the murder of the victim is the so-called confessional statement of the accused recorded by the Magistrate under section 164 of the Code of Criminal Procedure. By reference to the materials on record, he submitted that the occurrence having taken place on 19.3.2003, the accused was arrested on 23.3.2003 and after being taken on remand for the third time his confessional statement was recorded on 27.3.2003 and the confession was retracted by the accused on 08.4.2003. In this regard he submitted first of all that the case against the accused being one of rape and murder and the confession relating only to the murder of the victim, rape not having been mentioned at all, the confession cannot be said to be true. Thus, there is no evidence in support of the prosecution case. He further submitted that the confession having been recorded after 5 days in police custody, and having been retracted soon thereafter alleging that it was extracted by police torture, cannot be said to be voluntary. He submitted, therefore, that the confession, being not true and not voluntary, it cannot be used against the accused and, therefore, the conviction and sentence is illegal and unwarranted.

Learned Counsel next submitted that the contention of the prosecution that blood stained clothing and other materials recovered from the house of the accused support the prosecution case of rape and murder, is ill-founded. He pointed out that the blood stains were not chemically examined to establish whether it was in fact blood of the victim or of the accused. He reminded us that the defence case was that the accused suffered from tuberculosis (TB) and the blood stains on the clothes and materials recovered from his house were of blood from the accused.

In conclusion the learned Counsel submitted that the case against the accused has not been proved by legal evidence beyond reasonable doubt and as such, the accused is liable to be acquitted.
The learned Counsel lastly pointed out that the accused has been in the condemned cell since the date of the judgement by the trial Court on 12.10.2004. He submitted that the accused has suffered the pangs of death for more than 10 years and as such, even if his conviction is maintained, his sentence of death is liable to be commuted. In this regard he has referred to the decision of this Division in the case of Nazrul Islam (Md) vs State reported in 66 DLR (AD) 199.  Moreover, he submitted that the accused was very young at the time of commission of the offence and as such, the sentence of death is too harsh. Again, he submitted that in such circumstances the sentence of death is liable to be commuted. In support of his contention he has referred to the decision in the case of The State vs. Tasiruddin reported in 13 DLR 203 where the age of the offender even up to 27 years has been considered as a ground of commutation of the sentence of death.

Mr. Khandaker Diliruzzaman, learned Deputy Attorney General appearing for the respondent made submissions in support of the judgement and order of the High Court Division. In addition he submitted that the incriminating articles recovered from the house of the accused give a clear picture of the accused having murdered the victim inside his own room. He pointed out that as many as 18 items of wearing apparels and bedding recovered from the room of the accused contained blood stains which forms strong circumstantial evidence that the accused murdered the victim inside his room. He pointed out that the recovery of these items on 22.3.2003 was consequent upon an extra judicial confession of the accused. He submitted that this is further endorsed by the subsequent recovery of the sack at 12.15 p.m. on 22.3.2003 in which the accused carried the dead body of the victim and which also had blood stains on it.

The learned D.A.G. further submitted that the confession of the accused recorded by the learned Magistrate was found by both the trial Court and the High Court Division to be true and voluntary. He submitted that the fact that the confession was recorded after taking the accused on remand, does not make the confession illegal since there was no illegality about the remand order and the consequent confinement of the accused. He further submitted that all the requirements of sections 364 and 164 of the Code of Criminal Procedure have been complied. He further submitted that the confession being an inculpatory one, the fact that the accused did not mention his act of rape on the victim is a mere omission or suppression on his part, and it does not detract from the voluntariness and truth of the confessional statement. He pointed out that the post mortem report and the inquest report clearly speak of an act of rape having been committed upon the victim, otherwise the injuries mentioned in the post mortem report and observed at the time of inquest could not be explained. In this regard he also submitted that non-mentioning of the presence of signs of rape by the doctor in the post mortem report cannot negate the fact of rape which is evident from the injuries in the private parts of the victim which are noted in the post mortem report and which are shown as the cause of death. The learned D.A.G. submitted also that the evidence of the witnesses clearly corroborate the fact that the victim was invited by the accused to go to his house and, thereafter, she was found dead in the following morning. Lastly, the learned D.A.G. submitted that the recovery of blood stained items of clothing and bedding from the room of the accused clearly proves the complicity of the accused in the offence alleged, and is also supported by the confession of the accused to the effect that he murdered the victim inside his room.

With regard to the defence of the accused that he was suffering from TB, the learned D.A.G. submitted that the evidence of the defence witnesses did not at all support the defence claim that the accused had been suffering from TB and, hence, the attempt to explain the blood stains on the clothing and bedding found in the room of the accused failed miserably. The circumstantial evidence produced in support of the prosecution case could not be shaken by the defence and, hence, the conviction and sentence cannot be said to be illegal.

We have considered the submissions of the learned Advocate for the appellant and the learned Deputy Attorney General for the respondent, perused the impugned judgement of the High Court Division and other connected papers on record.

There cannot be any doubt that the victim died as a result of a ferocious sexual assault upon her. The injuries found within her private parts as well as in the vicinity of her private parts and her breast clearly indicate that she was brutally raped. However, the extent of the injury, i.e. complete tear of cervix (Uterus) resulting in hemorrhage and shock does not necessarily indicate gang rape. We note from the F.I.R. that the informant merely suspected that his daughter was possibly gang raped and then strangulated. There is no other evidence to suggest that there was gang rape. Moreover, even if there had been gang rape and the other accused were for any reason either discharged or acquitted after trial, that cannot exonerate the accused person-appellant before us from his liability if there is sufficient evidence and materials on record to sustain his conviction. If other accused persons have been wrongly or illegally left out then it is the responsibility of the prosecution to take whatever steps are felt to be necessary in the circumstances. In this appeal we are concerned with the allegations brought against the accused and whether or not those have been satisfactorily proved beyond reasonable doubt by the evidence and materials produced by the prosecution.

The accused was arrested on 22.3.2003 and taken on remand. When interrogated, the accused made certain extra judicial confessions which led to the recovery on the same day of 18 items of clothing, bedding and old paper from the room of the accused consequent upon his confession. Six of these items contained blood stains. On the same day again consequent upon the confession of the accused, two other items, namely old sack and piece of jute rope both with blood stains, were recovered from the roof of the pucca latrine of the accused. The recovery of these items, particularly the blood stains found, fully corroborates the confession of the accused to the effect that he killed the victim in his room and in the process blood from Lubna’s mouth fell on the bed sheet and that he wiped that blood with his lungi and carried the dead body in a sack and left the body near a bamboo bush. In view of this cross corroboration we cannot ignore the circumstantial evidence of the blood stained clothing and bedding nor can we disbelieve the truth of the confessional statement of the accused.
The defence tried to assail the circumstantial evidence of blood stained clothing and bedding etc. by claiming that the accused suffered from TB and that the blood stains were from his own blood. However, the defence story is belied by the evidence of D.W. 1 and D.W. 2, inasmuch as D.W. 1 admitted in his cross examination that this patient did not suffer from TB and there was nothing problematic seen from the X-Ray Plate. We also noted that in his examination in chief D.W.1 admitted that his note regarding blood with sputum and blood with vomit was written as stated by the patient. Hence, the defence having failed to establish that accused suffered from Tuberculosis, the circumstantial evidence indicating the blood stains were from the blood of the victim stands unrebutted. We also note from the evidence of P.W. 21, the Investigating Officer, that there was no suggestion by the defence that the blood stains were not caused by the blood of the victim.

One other circumstance adverted to by the prosecution through the evidence of P.W. 5 is that on the night of occurrence the accused felt unwell and a doctor was called. P.W. 5 stated that he examined the accused in the room in front of the room of the grandfather of the accused. The accused was not unwell but his pulse rate was high and he was very restless. In our view this state of the accused indicates his mental condition after commission of the murder of the victim. According to the confession of the accused the murder took place before Maghrib prayers and he was seen by the doctor after 9:30 p.m. by which time he had disposed of the dead body, incidentally it may be mentioned that, according to the confession of the accused, he disposed of the dead body at a time when the weather was inclement due to rain and strong wind, and among the items recovered from the room of the accused were his trousers which had stains of mud on them.

The prosecution case with regard to the accused inviting the victim to come to his house after visiting the house of her nana, is mentioned in the confessional statement of the accused. The prosecution attempted to corroborate the same by the evidence of P.Ws. 11, 12, and 15 who deposed to the effect that they saw the accused approach the victim and invite her to his house. In addition P.W. 9 also deposed that he heard the victim’s nani say that Lubna told her that she was going to the house of Manik (the accused) on her return journey. The victim’s nani did not depose as a witness and, therefore, the evidence of P.W. 9 in this regard is hearsay and not admissible as evidence. P.Ws. 11 and 15 stated that they saw the accused call the victim near the tea stall and invited her to his house on her way back, but this was not stated to the Investigating Officer, as apparent from the cross-examination of P.W. 21. However, P.W. 12 narrated the story of conversation between the accused and the victim and of her being invited by the accused to his house, but there was no cross-examination regarding this aspect of the Investigating Officer which leaves this part of the evidence of P.W. 12 uncontroverted and this evidence goes to support the confession of the accused with regard to his inviting the victim to his house.
In view of the facts and evidence discussed above, our considered opinion is that the prosecution has been able to prove beyond reasonable doubt that the accused committed the rape and murder of the victim and, therefore, the conviction and sentence cannot be said to be illegal.

However, we have given our anxious thought to the age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. In view of the decision referred to by the learned Counsel for the appellant in the case of The State vs. Tasiruddin reported in 13 DLR 203 and the decision of this Division in the case of Nazrul Islam (Md) vs State reported in 66 DLR (AD) 199 where one of us was a party, we are inclined to commute the sentence of death to one of imprisonment of life.

Accordingly, the criminal appeal is dismissed and the sentence of death is modified to one of imprisonment for life. 

Ed.