Case No: Jail Appeal No. 208 of 2010
Judge: Md. Iqbal Kabir,
Court: High Court Division,,
Citation: 4 LNJ (2015) 554
Case Year: 2015
Appellant: Md. Roni
Respondent: The State
Subject: Confessional Statement,
Delivery Date: 2015-05-26
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
|A. K. M. Asaduzzaman, J.
Md. Iqbal Kabir, J.
. . .Convict-Appellant
. . . .Respondent
Code of Criminal Procedure (V of 1898)
The alleged statement made under section 164 of the Code is not a statement as because it has made in a plain paper having no authenticity marks therein. Nothing has followed as specified in the law; as such in the eye of law there is no scope to accept it as a statement made under section 164 of the Code. ...(18)
Code of Criminal Procedure (V of 1898)
After recording an admission of guilt of the accused as nearly as possible in his own words, he should be asked why he should not be convicted on his such admission of guilt. . . . (22)
Code of Criminal Procedure (V of 1898)
The provision in section 243 of the Code of Criminal Procedure for the recording of the admission of the accused as nearly as possible in the words of the accused is a statutory provision designed to enable not only the trying Court but also the superior courts to know that the accused understood that he was really pleading guilty to the offence charged. . . . (24)
Code of Criminal Procedure (V of 1898)
Sections 164 and 222
The confessional statement made under section 164 of the Code is not at all confessional statement, since it has made in a plain paper without fulfilling the legal requirement and the record suggested no formal charge has been made against the convict, since no formal charge was framed against the accused, the convict got no opportunity to take defence against those allegation. . . . (30)
Sheikh Mujibur Rahman Vs. State, 55 DLR-pg-393, 43 DLR 389 and Azed Sheikh, 41 DLR page-62, 11 DLR 514, 22 DLR 217, 20 DLR 46 ref.
Jail Appeal No. 208 of 2010
This Jail Appeal has been preferred by the convict appellant under section 420 of the Code of Criminal Procedure having arisen out of the order of conviction and sentence dated 25th March, 2010 passed by the Joint Sessions Judge, 2nd Court, Bagerhat in Sessions Case No. 313 of 2009, arising out of Mongla P.S Case No.- 04 dated 07-10-2008 corresponding to GR No. 164 of 2008 convicting the present appellant under section 395 of the Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and also to pay a fine of Taka 10,000/- in default to suffer imprisonment for a further period of 2 years.
The facts relevant for disposal of the appeal, in brief is that on 07-10-08, the Informant Md. Nurul Islam of village- West Shehalabunia, Zia Sarok, Police Station- Mongla, Bagerhat lodged an ezaher, alleging, inter alia that on 6th September, 2008 after finishing dinner and completing all other works, informant went for sleep in his own room, all other family members also slept in their respective rooms; at about 2.30 am, 7/8 unscrupulous people somehow opened the door and entered into the informant’s rooms; there after they wake and found 4/5 people with deadly weapon stood beside his bed. They introduced themselves as dacoits, there after they went to others and wake up them and create pressure upon them and showing threat, ask for key of the almeria. Thereafter, they opened the almeria and took ornaments, cash, Nokia Mobile phone, Video Camera and necessary belongings; the value of those would be Tk. 2,99375/. The age of the dacoits would between18-25 years; all of them used local languages, and their faces were covered with cloth. They left the place at about 3.45 am and before leaving they also threatened them and locked the door from the outside.
After investigation, police submitted charge sheet being No. 44 dated 30-04-09 under section 395 and 397 of the Penal Code against the present appellant along with 5 others. At the time of trial, charge was framed against said accused under section 395 and 397 of the said Code. The charge as framed was read over to the accused persons present in the dock to which they pleaded not guilty and claimed to be tried. Only the appellant as trial prisoner, Roni, pleaded guilty of the offence charged under section 395/397 of the Penal Code, upon consideration of plea of guilt, the learned Judge of the concerned court clearly explained him the charge, and mentioned the consequence of admission of guilt and shall be fraught with punishment like imprisonment for life. But the accused, Roni is found stick to his decision. Then he was brought to the witness box and his statement in brief was recorded in the deposition sheet comprising of two pieces of paper. After recording such plea of guilt it was read over and then the accused put his signatures in both pages terming it true and correct.
On perusal of the prosecution case, it appears that the occurrence took place at 2.30 AM on 7.10.2008 and accused, Roni was arrested just on the following day that is, on 8.10.2008 and on the same day made exculpatory confessional statement under section 164 of the Code of Criminal Procedure before the Magistrate. Accused Roni in his confessional statement said that he is a Motor-van driver and was compelled to commits robbery. The other accused pointing deadly weapon forced him to attend in the robbery. He went on saying that his accomplices took away 3 mobile sets, gold ornaments and cash while he claimed as his share but the accomplices didn’t give him share, rather they put him in fear of death and assaulted him.
Under the facts and circumstances, trail court made a comparison between two above quoted statements with due cautions. One confessional statement under section 164 of the Code made just on the following day of the date of occurrence and without resorting police remand. The 2nd one is admission of guilt, when the charge under section 395/397 is framed, read over and explained repeatedly to accused Roni by the court when the very consequences were brought to his notice clearly and separately. It needs to quote here that the accused Roni has been in jail custody since 08-10-2008, and during this period of 1½ years he gets company of numerous convicts, accused, under the facts and circumstances the confessional statement under section 164 of the Code and the admission of guilt after understanding the charge carry special importance. Both the statement seems to be true, voluntary and credible.
On the basis of the confessional statement and admission of guilty the Joint Sessions Judge convicted and sentenced the appellant as aforesaid.
Being aggrieved and dissatisfied with the Judgment and order of conviction and sentence Md. Roni preferred the instant Jail Appeal. Subsequent to the admission of the Appeal it is taken up for disposal by this Judgment.
The case of the accused appellant as made out in his application for Jail Appeal is that the accused appellant is innocent and he has been falsely implicated in the aforesaid occurrence; he is poor and has no person to conduct the case, the Judge of the trial court without proper analysis of record decided the case and illegally convicted the appellant, as such, the impugned judgment and order of conviction and sentence is liable to be set aside.
Perused the application for Jail Appeal, examined the material evidence available on the record, scrutinized the preposition and confessional statement, and admission of guilty of the accused and gone through the impugned judgment and order of conviction and sentence.
On perusal of the Trial Court’s record, it appears that the charge against the convict appellant was under section 395/397 of the Penal Code. For proper disposal of the appeal let us examine those material evidences, admission of guilty and confessional statements made by appellant and order passed by the Trial Court.
We have strictly examined the above testimony and perused the FIR, Charge Sheet and other materials on record. It is seen that accused Roni is a poor man and he has no one who can assist to contest the case. The record suggest that the accused soon after arrest made a confessional statement on 8-10-08 under section 164 of the Code, which is exculpatory as he in his confessional statement stated as follows:
We find some basic loopholes in the judgment, as which the Judgment does not conform the minimum requirements of law,it is difficult for us to hold the same was made in full compliance to the provision of legal requirement as it appears that the statement and admission of guilty are not voluntary and true, which will be apparent on the following discussions.
In this matter the prosecution has examined no witness to narrate the prosecution case. The Joint Sessions Judge has narrated the prosecution case and reproducing the FIR version, charge sheet and other documents. The narration of the prosecution case should be those statements, which are needed to be made on oath by a witness in court with reference to the criminal offence.
The allegations made in the FIR and charge sheet cannot, in any way, be taken as the prosecution case to prove the case.
The Joint Sessions Judge framed charge against the appellant under section 395 and 397 of the Penal Code, without specifying the contents of these sections. However, the record suggests that no formal or proper charge was framed against the appellant at the time of trial on 25-03-2010. The record further suggested that statement has been recorded in a plain paper, wherein no signature of the Magistrate found and nothing has been stated which supposed to make by the Magistrate.
“In the case of Sheikh Mujibur Rahman vs State it was observed that it is fundamental principle of criminal law that the accused should be informed with certainty and accuracy the exact value of the charge brought against him, so that he may not be prejudice in taking his defence. It is, therefore imperative that before a person is convicted of an offence he should be, subject to certain exceptions, formally charged with having committed the offence specific and be given an opportunity to defend himself against charge (Reported in 55 DLR-pg-393)”.
Though charge is a precise formulation of the specific accusation made against person who is entitled to know its nature at the very earliest stage. Since no formal charge was framed against the accused, naturally he could not get any opportunity to take defence against any allegation made therein. It is clear from the record that statement has been recorded in a plain paper, wherein no signature of the Magistrate found and nothing has been stated which supposed to make by the Magistrate.
“A statement under section 164 of the Cr.PC cannot be used as substantive evidence; apart from that confessional statement in a plain paper without the narration of the questions and answers would not by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happen, how he warned and gave time for reflection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate‘s believing the same to be voluntary ought to be treated as conclusive evidence facts stated therein unless shown to be otherwise (43 DLR 389)”.
It is also found in the record that the day when the accused was arrested, on that day the accused was produced before the Magistrate, he made a confessional statement and which is exculpatory. This kind of confessional statement would be used in cross-examination.
In the case of Azed Sheikh reported in 41 DLR page-62, it is held that the recording Magistrate did not make any genuine effort to find out the real character of the confession. Omissions in the filling up of many paragraphs cast serious doubt upon the voluntary character of confessional statement”.
The alleged statement made under section 164 of the Code is not a statement as because it has made in a plain paper having no authenticity marks therein. Nothing has followed as specified in the law; as such in the eye of law there is no scope to accept it as a statement made under section 164 of the Code.
Though the accused pleaded guilty and on the basis of the admission of guilty the accused was convicted under section 395 of the Penal Code, we have strictly examined the above testimony of the accused and perused the same, where the accused stated as follows:
“ আমি দোষি। আমি দোষ স্বীকার করি। আমার কিছু বক্তব্য আছে। আমি একজন নিন্ম বিত্ত পরিবারের ছেলে। আমার মামলা পরিচালনার মত কেহ নাই। বিগত ২ বৎসরের মধ্যে একটি জামিনের প্রার্থনা দিতে পারি নাই। আমি, রাজু, সহিদুল ও বাবুল এই চার জনে ঐ বাড়ী ডাকাতি করা উদ্দেশ্যে যাই। আমার ডাকাতি করি। পুলিশ আমাকে পরের দিন বিকাল ৫.০০ ঘটিকার সময় গ্রেফতার করে । আমাকে থানায় খুব torture করে। পুলিশ আমাকে করে বাকী আসামীদের নাম বলায়। বাকী আসামীদের আমি চিনি না বা তারা এই ঘটনায় জড়িত ছিল না। আমার সঙ্গীয় বাবুল এর বাড়ী সোনাইলতলা, থানা-রামপাল, জেলা: বাগের হাট। আমার মোবাইল সেট ও স্বর্নালঙ্কার ডাকাতি করিয়া নেই। ঘরের লোকজনকে ভয় দেখানোর জন্য আমাদের কাছে ছুরি ছিল।
Now the most pertinent question is whether in the instant case the alleged admission of the guilt by the accused was legally and properly recorded as required under section 243 Code of Criminal Procedure.
‘‘আমি দোষি। আমি দোষ স্বীকার করি। আমার কিছু বক্তব্য আছে।’’
From the above, it is clear that the alleged admission of guilt was not at all recorded as nearly as possible in the words used by the accused. The reply does not at all appear to be recorded in the words of the accused but in the words of the trying Judge in the following term, আমি দোষি। আমি দোষ স্বীকার করি। আমার কিছু বক্তব্য আছে।
This is not the proper compliance of the provisions of section 243 Cr PC. Further, if the provisions of section 243 Cr PC are carefully examined, it will be found that after recording an admission of guilt of the accused as nearly as possible in his own words, he should be asked why he should not be convicted on his such admission of guilt. This part of the provision of section 243 of the Code of Criminal Procedure appears to have been totally over- looked by the learned Judge and only on the basis of the so-called recording of appellant’s admission of his guilt and without putting any other question in pursuance of section 243 Cr PC as to why he should not be convicted there under he formed his opinion and convicted the accused.
In the case reported in 11 DLR 514, it has been laid down:
“A conviction without taking of any evidence and purporting to be based on a plea of guilt cannot be sustained when the accused denies having pleaded guilty and the said plea is not found recorded in accordance with the provisions of section 243 of the Code of Criminal Procedure.”
The provision in section 243 of the Code of Criminal Procedure for the recording of the admission of the accused as nearly as possible in the words of the accused is a statutory provision designed to enable not only the trying Court but also the superior courts to know that the accused understood that he was really pleading guilty to the offence charged.
In 22 DLR 217, it has been observed:
“Although an accused can be convicted on his pleading guilty yet for the interest of Justice there should be some legal materials on record to support it. In the instant case nobody has come forward to prove the prosecution case. No witness has been examined in the case. The admission of the accused has not also been recorded as nearly as possible in the words used by the accused. The order of conviction is not thus proper on that score too.”
In 20 DLR 461, it has been held;
“Section 243 of the Criminal Procedure Code provides, ‘inter alia’ that if the accused admits that he has committed the offence of which he is an accused, his admission shall be recorded as nearly as possible in the words used by him.” In the case reported in 40 DLR 461, it has been observed by a single Judge of this court.
“It cannot be said that there was no material or evidence before the court besides the plea of guilt because the informant pw-1 had made elaborate statement regarding the entire prosecution case as was observed in the judgment of the trial court. But the fact remains that the mandatory requirements of section 243 of the Code of Criminal Procedure have been violated as the learned Judge did not at all record the individual statements of the two accused either in their language or in words as nearly as were expressed by them. This violation of the mandatory provision must be held to have prejudiced the accused appellants and for that reason the violation cannot be overlooked by aid of section 537 of the Code of Criminal Procedure. For the reasons stated above the conviction and sentence cannot be sustained.”
If we believe that the statement made was voluntary and true, then it should be considered. However, the statement shows there were four people who committed dacoity. But section 395 of the Penal Code-punishment for dacoity reviles that as per section 391 of the Penal Code, when five or more persons conjointly commit or attempt to commit a robbery is said to commit “dacoity”. In this circumstances if we believe plea of guilt admission of guilty true, then nothing happened to dacoity.
In this case we find that no formal charge was framed against the convict appellant which is essential and legal requirement of law, Naturally accused appellant had no opportunity to take defence against any allegation made therein and usually convict failed to felt the consequence of plea of guilty. This manifestly suggests that the appellant pleaded guilty without knowing what exactly he was pleading to. His plea of guilty is no more than an admission that he had committed that act which is alleged to be an offence. The judge without affording the appellant proper safeguards and consequences of his plea accepted the plea of guilt.
“Accepting the plea of guilty of the appellant is error of law. A plea of guilty in a criminal court can only be made in response to a charge made by the court. In this case no formal charge was framed but, his plea was accepted. “An informal admission as to guilt does certainly not amount to formal plea of guilt and such an admission has of course no binding effect as to a plea of guilt’- Observed by Cunliffe, J in the case of Superintendent and Remembrance of Legal Affairs, Bengal vs Jiban Kumar De and others AIR 1936 Cal 292.
Section 265 E of the Code of Criminal Procedure, provides that if the accused pleads guilty, the court shall record the plea and may in its discretion convict him thereon. Therefore, the Court should not act upon the plea, in other words, the conviction need not necessarily follow the plea of guilty. The Court has discretion of accepting the plea or proceeds to take evidence notwithstanding the plea. While the conviction on a plea may considerably abridge the trial that should not be a reason for the courts to refrain from taking evidence, if it feels any doubt that the accused did not understand the full implication of the offence mentioned in the charge”.
The facts, question relating to charge, confessional statement and guilty pleadings we have to rely above mentioned cases wherein their lordships consistently took same views.
In view of the above, we hold that the appellant’s plea of guilty was not genuine and it was an admission that he has committed the act, which is alleged to be an offence. The confessional statement made under section 164 of the Code is not at all confessional statement, since it has made in a plain paper without fulfilling the legal requirement and the record suggested no formal charge has been made against the convict, since no formal charge was framed against the accused, the convict got no opportunity to take defence against those allegation.
“An accused person who pleads guilty and convicted thereon, he has no right of appeal except as to extend or legality of the sentence as provided in section 412 of the Code of Criminal Procedure. Where, however, the facts alleged by the prosecution do not amount to an offence, the plea of guilty of an accused cannot stand in the way of his acquittal and section 412 of the Code cannot bar an appeal from his conviction. References in this connection are the cases of Mustaq vs Crown, AIR 1965, MP 137. Marari vs Crown AIR 1919 Bon 160”.
This accused has been in Jail custody since 08-10-08 and by this time 6 years have been elapsed. In that view of matter the ends of justice would be met if the appellant is acquitted of the alleged charge leveled against him. Accordingly, we find merit in this appeal.
In this result, this appeal is allowed. The judgment and order of conviction and sentence dated 25-03-08 in Sessions Case No.313 of 2009 is hereby set aside. The accused Roni is found not guilty of the alleged charges and thus acquitted and he be set at liberty at once if not wanted in connection with any other cases.
Let the lower Court record along with the copy of this Judgment be transmitted down and the order also be communicated to the authority concern at once.