Md. Rokibur @ Rokib @ Okibar Vs. The State, 4 LNJ AD (2015) 207

Case No: In Criminal Appeal No. 2 of 2010

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: Mr. Khorshed Alam Khan,Mr. Masud Hasan Chowdhury,,

Citation: 4 LNJ AD (2015) 207

Case Year: 2015

Appellant: Md. Rokibur @ Rokib

Respondent: The State

Subject: Confessional Statement,

Delivery Date: 2015-05-12


APPELLATE DIVISION
(CRIMINAL)
 
Surnedra Kumar Sinha, CJ.
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J


12.05.2015
  Md. Rokibur @ Rokib @ Okibar 
. . . Appellant
(In Crl. A. No.2 of 2010)
Rokibor @ Okibar
. . . Petitioner
(In Jail. P. No.14 of 2008)
Helal @ Helal Uddin
. . . Appellant
(In Crl. A. No.76 of 2012)
=Versus=
The State. . . Respondent
(In all the cases)
 
Code of Criminal Procedure (V of 1898)
Section 164
Confessional statements, if voluntary and true, can be the sole basis of conviction of the maker of it. . . . (11)

Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain (XVIII of 1995)
Section- 6(4)
Considering the very nature of the offence which is heinous, ghastly and barbaric act of rape and murder committed upon a 16 years old girl we are of the opinion that justice will be denied if the death sentence of the accused-appellant Rakibor @ Okibor is commuted to imprisonment for life. The law has provided death sentence for some offences. In the present case the offence committed by this accused-appellant Rakibor @ Okibor is so heinous and barbaric in nature that the only punishment for this offence can be the death penalty. To secure the ends of justice this type of offenders must be awarded the highest punishment provided by law, any leniency, if shown to this type of offenders, will cause miscarriage of justice. . . .(13)

Evidence Act (I of 1872)
Sections 8 and 24
Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain (XVIII of 1995)
Section 6(3)
It is an established principle of law that confessional statements, if voluntary and true, can be the sole basis of conviction of the maker of it. The confessional statement of accused-appellant Rakibor @ Okibor has been well corroborated also by the extra judicial confessional statements of the other accused Helal and also by the fact that as per that confessional statements of accused Helal some incriminating articles were recovered from the dwelling hut of confessing accused Helal. So as regards the accused-appellant Rakibor @ Okibor it appears that there is not only the own confessional statement of this accused-appellant but there are other evidence also lending corroboration to this confessional statement and all these have proved the charge against this accused-appellant Rakibor @ Okibar beyond all reasonable doubt. Considering this extra-judicial confessional statement of accused Helal, the fact of recovery of incriminating articles from his hut and the judicial confessional statement of accused Helal both the Adalat and the High Court Division found this accused-appellant Helal guilty of the offence of commission of rape on victim Morsheda. The High Court Division, however, found that there was no cogent evidence on record to prove that this accused Helal took part in the murder of victim Morsheda and, therefore, the High Court Division converted the conviction of this accused-appellant under section 6(4) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 to one under section 6(3) of the same Ain. . . . (11 and 12)

 
For the Appellant (In Crl. A. No.2 of 2010): Mr. Khorshed Alam Khan, Advocate instructed by Mr. Md. Zohirul Islam, Advocate-on-Record.
For the Appellant (In Crl. A. No. 76 of 2012): Mr. Khorshed Alam Khan, Advocate instructed by Mr. Md. Nawab Ali, Advocate-on-Record.
For the Respondent (In Crl. A. No.2 of 2010): Mr. Masud Hasan Chowdhury, Deputy Attorney General instructed by Mr. Md. Shamsul Alam, Advocate-on-Record.
For the Respondent (In Crl. A. No. 76 of 2012): Not represented.
 
JUDGMENT
 Nazmun Ara Sultana, J.

Both the Criminal Appeal No.2 of 2010 and Criminal Appeal No.76 of 2012 have arisen out of the same judgment and order dated 17.03.2008 passed by the High Court Division in Criminal Appeal No.2904 of 2004 and Jail Appeal No.896 of 2004 along with Death Reference No.112 of 2004.

The prosecution case, in short, is that on 02.06.1999, just after sun set, the deceased Morsheda, a 16 years old girl went out of her house to attend the call of nature and as she did not return home during the next one hour, her parents and other relatives went out to look for her and ultimately they recovered the half-naked dead body of Morsheda lying in the alluvial of river Padma with her throat slit and another stab wound on the left side of the abdomen. Her ‘pajama’ was torn and pulled down to her knees and her ‘kamij’ was raised upto her breasts. The father of the deceased Md. Abdul Jabbar lodged the F.I.R. with Godagari Police Station. The police then came to the house of the parents of the deceased and sent the dead body for autopsy on the following morning. After completion of postmortem examination, the deceased was buried at about 5.00 P.M. on that day. Shortly thereafter, the local people intercepted a youth-who was attempting to flee to India through the nearby border. He was placed under the custody of the local Chowkidar and upon being interrogated by the local people, he disclosed his name as Helal and confessed that he along with Lalon, Rakibor, Basir, Chhobi, Ripon and Jahangir committed rape on Morsheda and thereafter accused Lalon dealt dagger blows on her throat and abdomen causing her death instantaneously. He was handed over to the local police. On the basis of his statement some incriminating articles were recovered and seized as per seizure list-the exhibit-2. On 09.06.1999 the police arrested accused Rakibor @ Okibor (hereinafter referred to as Rakibor) from Tetolia village under Poba Thana and he too admitted his complicity with the offence. Accused Helal and Rakibor made confessional statements under section 164 of the Code of Criminal Procedure before the Magistrate, 1st Class on 06.06.1999 and 10.06.1999 respectively. Upon completion of investigation the police submitted charge sheet against 7 accused persons, namely, 1. Lalon @ Lal Mohammad, 2. Chhobi @ Mazharul Islam, 3. Ripon @ Anwar Hossain, 4. Md. Jahangir Alam, 5. Md. Basir @ Basir Uddin, 6. Md. Helal @ Hela Uddin and 7. Rakibor @ Okibor @ Takibor under section 6(4) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995. Out of the 7 accused persons, 5 remained absconding and accused Rakibor and Helal faced trial. The case was ultimately sent to the Nario-O-Shishu Nirjatan Daman Bishesh Adalat, Rajshahi (herein after referred to as Adalat) for trial. In this Adalat the case was registered as Nari-O-Shishu Case No.357 of 1999. The Adalat framed charge against all the 7 accused persons under section 6(4) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995. The said charge was read over and explained to accused Helal and Rakibor-who pleaded not guilty and claimed to be tried.
The prosecution examined 20 witnesses while the defence examined none. The defence case was a plea of innocence.

Accused Helal and Rakibor were examined under section 342 of the Code of Criminal Procedure. On conclusion of trial the Adalat found accused Helal @ Helal Uddin, Rakibor @ Okibor, Lal Mohammad and Basir @ Basir Uddin guilty of the charge brought against them under section 6(4) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and convicted them thereunder and sentenced them to death by the judgment and order dated 08.08.2004. The other accused persons, namely, Chhobi @ Mazharul Islam, Ripon @ Anwar Hossain and Md. Jahangir Alam were acquitted since the prosecution could not prove the charge levelled against them. The Adalat made a reference under section 374 of the Code of Criminal Procedure to the High Court Division for confirmation of death sentences of the convicted accused Helal @ Helal Uddin, Rakibor @ Okibor @ Takibor, Lal Mohammad @ Lalon (absconding) and Basir @ Basir Uddin (absconding) on the basis of which Death Reference No.112 of 2004 was started.

The convicted accused Helal @ Helal Uddin preferred Criminal Appeal No.2904 of 2004 and Rakibor @ Okibor @ Takibor preferred Jail Appeal No.869 of 2004 against the judgment and order of their conviction and sentence. The High Court Division disposed of the death reference and the above  mentioned criminal appeal and jail appeal together by the impugned judgment and order. The High Court Division confirmed the conviction and sentence of the condemned prisoner Rakibor @ Okibor under section 6(4) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and, therefore, dismissed the Jail Appeal No.869 of 2004. The High Court Division dismissed the Criminal Appeal No.2904 of 2004 also preferred by the condemned prisoner Helal, but modified his conviction and sentence. The High Court Division found accused Helal guilty under section 6(3) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and sentenced him to imprisonment for life modifying the sentence of death as awarded by the Adalat. The High Court Division found that the charge against the other two condemned prisoners Lal Mohammad @ Lalon and Basir @ Basir Uddin had not been proved and, therefore, acquitted them. The High Court Division thus accepted the death reference in part so far it relates to condemned prisoner Rakibor @ Okibor only.

Being aggrieved by this judgment and order of the High Court Division the condemned prisoner Rakibor @ Okibor @ Takibor has preferred Criminal Appeal No.2 of 2010 and also a Jail Petition No.14 of 2008. The convicted accused Helal @ Helal Uddin has preferred Criminal Appeal No.76 of 2012.

Mr. Khorshed Alam Khan, the learned Advocate has appeared for the appellants of both the appeals. Mr. Khorshed Alam Khan has made submissions before us to the effect that the accused-appellants were not named in the FIR and there was no eye witness of the alleged occurrence. The learned Advocate has argued that both these appellants have been convicted and sentenced on the basis of their so-called confessional statements only which are not voluntary and true at all. The learned Advocate has stated that both the so-called confessional statements were obtained from the accused-appellants by torturing them inhumanly and that during trial both the appellants made specific allegation that they were tortured mercilessly by police for making such confessional statements which were not voluntary and true at all. The learned Advocate has contended that the Adalat and the High Court Division did not consider at al the specific defence case that these so-called confessional statements were not voluntary and true and consequently arrived at a wrong finding and decision causing great injustice to these appellants. The learned Advocate has made submissions to the effect also that the learned Judges of the High Court Division convicted the accused-appellants relying upon the so-called extra judicial confessional statement of accused Helal as corroborative evidence although such extra judicial confession is a very weak type of evidence and as such it should not have been used as corroborative evidence. The learned Advocate has contended that in this case since there is no other evidence, either direct or circumstantial to corroborate the so-called confessional statements of the accused-appellants the learned Judges of the High Court Division were wrong in treating the alleged extra judicial oral confession of the accused Helal as corroborative evidence inasmuch as such extra judicial confession also is required to be corroborated by other reliable evidence. The learned Advocate has contended that the impugned judgment and order of the High Court Division is liable to be set aside. Mr. Khurshid Alam Khan, the learned Advocate has made submissions to the effect also that the accused-appellant Rakibor @ Okibor is a young man of 27 years and he is in condemned cell for more than 10 years and thus having suffered the mental agony of death within the death cell for long 10 years he may now be showed some mercy and his sentence of death may be commuted to imprisonment for life for the ends of justice.

Mr. Masud Hasan Chowdhury, the learned Deputy Attorney General appearing for the State respondent has made submissions supporting of the impugned judgment and order of the High Court Division.  

We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment of the High Court Division, that of the Adalat and also the evidence on record.

The accused-appellant Rakibor @ Okibor and Helal @ Helal Uddin have been convicted and sentenced on the basis of their own confes-sional statements. Both these confessional statements have been reproduced in the impugned judgment of the High Court Division. In both the confessional statements there is a vivid description of the incident of rape committed on the victim Morsheda and also of her murder by the accused persons. In the confessional statements of accused Rakibor @ Okibor the confessing accused has clearly implicated himself in the commission of rape and also murder of Morsheda. He has given a detailed account of the role that he played in commission of those offences. As per his own confession he committed rape on the deceased Morsheda and thereafter he also took part in the murder by pressing legs of the deceased. This confessional statement proves the presence and participation of accused Rakibor @ Okibor both in the commission of rape and murder of deceased Morsheda. This confession of accused Rakibor is corroborated by the confession made by the other accused-appellant Helal. Though it has been argued that the confessional statement of accused Helal recorded under section 164 of the Code of Criminal Procedure being exculpatory, is not admissible in evidence but considering the facts and circumstances we do not accept this argument. There is sufficient evidence on record to prove that immediate after apprehension of the accused Helal by the local people he made extra-judicial confessional statement before so many persons stating that he himself along with other accused persons including accused Rakibor @ Okibor raped victim Morsheda and thereafter murdered her. There are sufficient evidence also to prove that as per this confessional statement of accused Helal some incriminating articles, namely, bloodstained curtain, quilt cover, spade and bamboo rod were recovered from the dwelling hut of accused Helal. The extra-judicial confessional statement of accused Helal followed by recovery of incriminating articles from his dwelling hut not only are sufficient to find accused Helal guilty of the charge framed against him, but this extra judicial confessional statement has strongly corroborated also the confessional statement of the other accused Rakibor @ Okibor. Before this Division  it has been argued from the side of the accused-appellants that these confessional statements of these two accused-appellants are not voluntary and true, rather they were obtained by police torture, but the learned Advocate for the accused-appellants could not point out anything before us to substantiate this argument. The learned magistrates-who recorded these confessional statements of these 2 accused-appellants have been examined by the prosecution as P.W.11 and P.W.14 and both of them have deposed to the effect that they recorded these confessional statements of these accused-appellants in compliance with all the mandatory provisions of law and being satisfied that those confessional statements were being made voluntarily. Both the Adalat and the High Court Division, on consideration of all aspects, found these confessional statements of these accused-appellants voluntary and true. We do not find anything to differ with these concurrent findings and decision of the courts below as to voluntariness and truth of the confessional statements of these two accused-appellants.

It is an established principle of law that confessional statements, if voluntary and true, can be the sole basis of conviction of the maker of it. In the present case the confessional statement of accused-appellant Rakibor @ Okibor alone is sufficient for finding him guilty of the charge levelled against him. The confessional statement of accused-appellant Rakibor @ Okibor has been well corroborated also by the extra judicial confessional statements of the other accused Helal and also by the fact that as per that confessional statements of accused Helal some incriminating articles were recovered from the dwelling hut of confessing accused Helal. So as regards the accused-appellant Rakibor @ Okibor it appears that there is not only the own confessional statement of this accused-appellant but there are other evidence also lending corroboration to this confessional statement and all these have proved the charge against this accused-appellant Rakibor @ Okibar beyond all reasonable doubt.

The confessional statement of accused Helal recorded under section 164 of the Code of Criminal Procedure has been argued to be exculpatory in nature as apparently, in this confessional statement he has made an attempt to absolve himself from the offence. But in this confessional statement he has not denied his presence at the place of occurrence and stated also that after commission of the offence the other accused persons took shelter in his hut and according to this confessional statement some incriminating articles, namely, bloodstained curtain, quilt cover, spade and bamboo rod were recovered form his hut. Over and above there are sufficient evidence on record to prove that soon after the occurrence while he was trying to flee away to India he was caught by the villagers and at that time he made extra-judicial confession in presence of many persons stating that he himself and other accused persons including accused-appellant Rakibor @ Okibor committed rape on the victim Morsheda and thereafter they murdered her. This extra-judicial confessional statement of accused Helal followed by recovery of incriminating articles from his hut alone are sufficient to find him guilty of the charge levelled against him. This extra-judicial confessional statement of accused Helal and the recovery of incriminating articles from his hut prove that in his judicial confessional statement accused Helal intentionally suppressed the fact of his involvement in the commission of rape and murder of Morsheda to absolve himself from punishment. Considering this extra-judicial confessional statement of accused Helal, the fact of recovery of incriminating articles from his hut and the judicial confessional statement of accused Helal both the Adalat and the High Court Division found this accused-appellant Helal guilty of the offence of commission of rape on victim Morsheda. The High Court Division, however, found that there was no cogent evidence on record to prove that this accused Helal took part in the murder of victim Morsheda and, therefore, the High Court Division converted the conviction of this accused-appellant under section 6(4) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 to one under section 6(3) of the same Ain.

Mr. Khorshed Alam Khan, the learned Advocate for the accused-appellants has made submissions to the effect also that the condemned accused-appellant is a young man of 27 years only and he is being detained in the condemned cell for about 10 years and that considering this fact as an extenuating circumstances his death sentence may be now commuted to imprisonment of life for the ends of justice. But considering the very nature of the offence which is heinous, ghastly and barbaric act of rape and murder committed upon a 16 years old girl we are of the opinion that justice will be denied if the death sentence of the accused-appellant Rakibor @ Okibor is commuted to imprisonment for life. The law has provided death sentence for some offences. In the present case the offence committed by this accused-appellant Rakibor @ Okibor is so heinous and barbaric in nature that the only punishment for this offence can be the death penalty. To secure the ends of justice this type of offenders must be awarded the highest punishment provided by law, any leniency, if shown to this type of offenders, will cause miscarriage of justice.

We, therefore, dismiss both the appeals and also the Jail Petition No.14 of 2008 filed by the accused-appellant Md. Rakibor @ Okibor.

Ed.