Sohel alias Sanaullah alias Sohel Sanaullah Vs. State, VII ADC (2010) 261

Case No: Criminal Petition for Leave to Appeal No. 9 of 2008

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Md. Khurshid Alam Khan,Mr. Zainul Abedin,,

Citation: VII ADC (2010) 261

Case Year: 2008

Appellant: Sohel alias Sanaullah alias Sohel Sanaullah

Respondent: The State

Subject: Confessional Statement,

Delivery Date: 2008-7-2


Supreme Court
Appellate Division
(Criminal)
 
Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
 
Sohel alias Sanaullah alias Sohel Sanaullah
…………...Petitioner
Vs.
The State repre­sented by the Deputy Commissioner, Dhaka
............Respondent
 
Order
July 2, 2008.
 
The provisions under Sections 164/364 of the Code of Criminal Procedure are mandatory and required to be strictly followed to make the confession voluntary and true for convicting the accused on his confessional statement. Hence the said confessional statement cannot be relied upon but the learned judges of the High Court Division most illegally sent back the case on remand to the trial court only to fill up the lacuna of the prosecution. …. (20)
 
Except the confessional statement of the petitioner there is no other circumstantial or direct evidence to connect him with the alleged offences. Hence apart from confessional statement the instant case is absolutely a case of no evidence. But from the narration of the confessional statement which has been recorded immediately after police remand the same cannot  be treated as voluntary and true and as such on the basis of the sole confessional statement conviction cannot be sustained in the eye of law. ….. (21)
 
Lawyers Involved:
Md. Khurshid Alam Khan, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Petitioner.
Zainul Abedin, Deputy Attorney General and also Advocate-on-Record-For the Respondent.
 
Criminal Petition for Leave to Appeal No. 9 of 2008.
(From the judgment and order dated 11.11.2007 passed by the High Court Division in Death Reference No.93 of 2004 along with Criminal Appeal No.2331 of 2004 with Criminal Appeal No. 2282 of 2004 with Jail Appeal No.690 of 2004.)
 
ORDER
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against judg­ment and order dated 11.11.2007 passed by the High Court Division in Death Reference No.93 of 2004 along with Criminal Appeal No. 2331 of 2004 with Criminal Appeal No.2282 of 2004 with Jail Appeal No.690 of 2004 in allowing the appeal and consequently, rejecting the death reference so far it relates to the send­ing the case back to the trial Court on remand for fresh trial from the stage of examination under section 342 of the Code of Criminal Procedure and for dis­posal on merit in the light of the observa­tions made in the judgment and in accor­dance with law within 60 (sixty) working days from the receipt of the records aris­ing out of judgment and order of convic­tion and sentence dated 29.06.2004 passed by the learned Additional Sessions Judge, 7th Court, Dhaka convicting the petitioner under sections 302/201/34 of the Penal Code and sentencing him to death by hanging in Sessions Case No. 329 of 2002 arising out of Savar Thana Case No. 62(4)2001 corresponding to G.R. No. 396 of 2001.
 
2. The facts, in short, are that on 25.04.2001 the condemned prisoner-peti­tioner Sohel came to Savar P.S. and lodged a written allegation that the co-accuseds Hanif, Hannan and Mannan attacked there house at village Maddya Rajashan under Savar Pourashava on the previous night at about 2.00 O'clock and abducted his mother Sanwara Begum and step-sister Sadia Khatun, aged about 10 (ten) years. Since Sohel spoke incoherent­ly at the police station, a G.D. entry was recorded. Thereafter pursuant to the G.D. entry, the P.W.4 Md. Shawkat Alam, Sub-Inspector of Police along with his accom­panying force and Sohel reached at the house of Sohel at Maddya Rajashan at about 13.30 hours. However, Md. Shawkat Alam made queries to the Local Commissioner Kazi Kadam Ali and others about the occurrence. In course of queries, it transpired that the dead body of a woman had been lying in Pir Hatikhana Beel. Soon afterwards, Md. Shawkat Alam along with the Commissioner Kadam Ali and others recovered a behead­ed dead body in a plastic bag from the field of one Ali Mia in that beel and the accused Sohel identified it to be that of his mother. At this stage, the accused Sohel told P.W.4 Md. Shawkat Alam and others that the deed body of his sister Sadia might be some where in the beel. They looked for the dead body of Sadia and found her beheaded dead body in a poly­thene bag in the paddy field of one Jabed Ali. Subsequently Md. Shawkat Alam held inquests upon the dead bodies of the victims, namely, Sanwara and Sadia. Thereafter the petitioner Sohel himself brought out the chopped off hands and legs of both the victims from a hole in the compound of their house. In due course, the petitioner Sohel made a judicial con­fession inculpating himself and the co-accuseds, namely, Hannan (acquitted by the High Court Division), Hanif and Mannan in the commission of the offence.
 
3. The police made inquest report on 25.04.2001 of the head, hands and legless dead body of victim Monowara Begum. In the inquest report it was stated that dead body was held submerged in a white plas­tic bag and the petitioner identified the dead body. There was light rosy coloured peticoat. The victim was aged about 45 years and her neck was cut and her head missing and legs and hands were also missing. The breast was normal, knee was dark coloured. The police on 26.04.2001 made inquest report of cut head, two hands and two legs of victim Monowara Begum. The police on 25.04.2001 made inquest report of the head, hand and leg­less dead body of the victim Sufia alias Safia alias Sadia and on 26.04.2001 made inquest report of the cut head, two hands and two legs of the victims.
 
4. Postmortem examination was held of the dead body of the deceased by Mizanur Rahman   of Dhaka Medical Collage, Dhaka on 27.04.2001.
 
5. Thereafter on 30.04.2001 M. Md. Azharul Islam Khan, learned Magistrate, 1st Class, Dhaka recorded the confession­al statements of the petitioner under sec­tion 164 of the   Code of Criminal Procedure in which he stated that his mother Monowara Begum alias Sanowara Begum would work at residence of a Canadian family for 7 (seven) years and they took her to Kuwait. The victim would sent all the earned money to the petition­er's maternal grand father and he pur­chased 13 decimals of land at Savar. Half of the land was purchased in the victims name and half was purchased in the name of the petitioner's grand father on that land a market with 6 shops was set up. The petitioner after returning from aboard demanded the deed of the home and accounts of money and thereafter there was quarrel with the petitioner's uncles. Before 12 days of the occurrence co-con­vict Hannan (acquitted by the High Court Division) told the petitioner that the vic­tim would give all the properties to his sis­ter and his mother victim might marry again. The convict Hunnan also told him that his mother's character was bad and bad boys came to his residence. The peti­tioner's father stated in his confessional statement that on the day there was a quar­rel with his mother and his mother told him that she would give all the property to his sister victim Sadia alias Sufia Begum. He confessed that thereafter he agreed to kill the victim. Thereafter it was decided to kill on 24.o4.2001 at night. Convict Hannan told him that he took back poly­thene and knife. At 2.00 A.M. the convicts came and the petitioner opened the door and other convicts Hannan, Mannan and Hanif entered into the house. The petition­er further confessed that his mother get­ting up from sleep came at his room and abusing said why he took them and instan­taneously he pressed his mother's neck and his mother victim also caught his neck. Thereafter convict Hannan catching his mother's neck made her lying and then other accuseds Hanif and Mannan also caught his mother and bound the neck of his mother by napkin. After sometimes the victim died. Thereafter Hanif looked for victim Sadia alias Sufia alias Safia and by torch light found her under a bedsheet and forcefully took her away from there and the convicts Hanif, Mannan and Hannan by pressing her neck killed Safia. He fur­ther stated that thereafter taking at the tube-well the convicts Hannan, Hanif and Mannan separated 2 victim’s heads, hands and legs and then the petitioner was stand­ing nearby. Thereafter his mother's dead body was put into the bag and his sister's body was put into the black polythene and heads, hands and legs were put into two separate polythene and blood was put into a bucked and tube side was washed by water. Thereafter he took away his sister's dead body and convict Hannan took away his mother's dead body to the ditch and his mother's dead body was left at the ditch and sister's dead body was left in the paddy field. At the time of returning the convict Hannan threatened if any body disclosed it, he would be seized. Returning from there he without entering at the house was moving before the house and felt unhappy.
 
6. The Investigating Officer of the case, Sub-inspector Md. Shawkat Alam (P.W.4), Savar P.S., Dhaka investigated the case, visited the place of occurrence. During investigation, he examined witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure and procured the autopsy reports of both the victims. He also got the confessional statement of the accused Sohel recorded under Section 164 of the Code of Criminal Procedure. Having found a prima facie case, the Investigating Officer Sub-inspec­tor Shawkat Alam submitted the charge sheet No. 552 dated 22.12.2001 against all the accused under Sections 302/201/34 of the Penal Code.
 
7. Thereafter the case record was transmit­ted to the Court of the learned Sessions Judge, Dhaka and the same was registered as Sessions Case No.329 of 2002 and the learned Sessions Judge, Dhaka took cog­nizance on 01.12.2002.
 
8. Thereafter on 23.03.2003 the case record was transmitted to the Court of the learned Additional Sessions Judge, 7th Court, Dhaka for trial.
 
9. At the trial on 13.04.2003 charge was framed under Sections 302/201/34 of the Penal Code and the same was read over to the petitioner in which he pleaded not guilty and claimed to be tried.
 
10. At the trial on behalf of the prosecu­tion 8 (eight) witnesses were examined and they were cross-examined by the defence. But the defence examined none.
 
11. After closing of evidences the petition­er was examined under Section 342 of the Code of Criminal Procedure in which again he pleaded not guilty.
 
12. After hearing the parties, considering the materials on records and the confes­sional statement of petitioner, the learned Additional Sessions Judge, 7th Court, Dhaka convicted the petitioner under Sections 302/201/34 of the Penal Code and sentenced him to death by hanging by judgment and order of conviction and sen­tence dated 29.06.2004.
 
13. Thereafter the learned Additional Sessions Judge, 7th Court, Dhaka on 29.06.2004   made a reference under Section 374 of the Code of Criminal Procedure for confirmation of death sen­tence of the condemned petitioner to the High Court Division.
 
14. The said case was registered as Death Reference No.93 of 2004 in the High Court Division.
 
15. Having been aggrieved by and dissat­isfied with the aforesaid judgment and order of conviction and sentence the peti­tioner preferred a jail appeal being Jail Appeal No. 690 of 2004 before the High Court Division. The High Court Division allowed the appeal and rejected the death reference and after reversing the convic­tion and sentence so far it relates to the petitioner sent back the case to the trial court on remand for fresh trial from the stage of examination under Section 342 of the Code of Criminal Procedure.
 
16. Being aggrieved by the aforesaid judg­ment of the High Court Division the peti­tioner has filed this petition for leave to appeal.
 
17. Heard the learned Advocate and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
18. The learned Advocate submits that while examining the petitioner under Section 342 of the Code of Criminal Procedure the mandatory requirement were not followed. That at the time of examination under Section 342 of the Code of Criminal Procedure the trial court should draw the attention of the petitioner to the main incriminating evidences against him with regard to the vital piece of evidences. But in the instant case the trial court failed to bring to the notice of the petitioner the vital piece of evidences at the time of examination under Section 342 of the Code of Criminal Procedure. Accordingly examination of the con­demned prisoner petitioner under Section 342 of the Code of Criminal Procedure is highly defective and it is not inconformity with the mandatory requirement of law and as such non-compliance of the manda­tory provision of law has vitiated the trial as a whole.
 
19. He further submits that the High Court Division observed failure to draw attention of the petitioner to the incrimi­nating evidence and circumstances at the time of his examination under Section 342 of the Code of Criminal Procedure has definitely prejudiced him in his defence. The High Court Division further observed that the judicial confession of the con­demned prisoner Sohel was not brought to his notice at the time of his examination under Section 342 of the Code of Criminal Procedure by the trial judge. Secondly, it is on record that at the instance of the con­demned prisoner Sohel, the beheaded dead body of his step sister Sadia was recovered from Hatipirkhana Beel and subsequently the condemned prisoner himself brought out the chopped off heads and legs of the two victims, namely, Sanwara and Sadia from a hole in the compound of their house but curiously enough, those incriminating circum­stances were not brought to his notice at the time of the said examination. Accordingly the High Court Division held that the order of conviction and sentence of the condemned prisoner Sohel cannot be sustained in the eye of law. Moreover on the self same ground co-accused Hannan (life imprisonment) has been acquitted by the High Court Division for non-compliance of Section 342 of the Code of Criminal Procedure. Hence, the High Court Division committed serious illegality in sending the case record on remand to the trial court for fresh trial from the stage of examination under Section 342 of the Code of Criminal Procedure.
 
20. He submits that at the time of record­ing of confessional statement by the Magistrate Md. Azahar Islam Khan (P.W.7) the requirement of Sub-section 3 of Section 164 of the Code of Criminal Procedure was not complied with and as such non-compliance of mandatory provi­sion of law vitiated the admissibility of the confessional statement. Moreover, in column No.10 of the confessional state­ment it is found that after recording the confessional statement the petitioner was forwarded to S.I. Shakat Ali at 5.50 p.m. The recording Magistrate admitted that after recording the alleged confessional statement the petitioner was sent back to the police custody. Hence, it is clear that the said confessional statement cannot be treated as voluntary and true. The provi­sion under Sections 164/364 of the Code of Criminal Procedure are mandatory and required to be strictly followed to make the confession voluntary and true for con­victing the accused on his confessional statement. Hence the said confessional statement cannot be relied upon but the learned Judges of the High Court Division most illegally sent back the case on remand to the trial court only to fill up the lacuna of the prosecution.
 
21. He lastly submits that in the instant case the learned Judges of the High Court Division relied upon confessional state­ment of the petitioner and sent back on remand to fill up the lacuna of the prose­cution. Except the confessional statement of the petitioner there is no other circum­stantial or direct evidence to connect him with the alleged offences. Hence apart from confessional statement the instant case is absolutely a case of no evidence. But from the narration of the confessional statement which has been recorded imme­diately after police remand the same can­not be treated as voluntary and true and as such on the basis of sole confessional statement conviction cannot be sustained in the eve of law.
 
22. The above submissions made on behalf of the petitioner merit consideration.
 
23. Leave is granted to consider the same.
 
24. Preparation of paper book is dispensed with as prayed for.
 
25. Operation of the judgment and order of the High Court Division dated 11th November,   2007 passed in Criminal Appeal No. 2282 of 2004 and further proceeding of Sessions Case No. 329 of 2002 pending in the court of the learned Additional Sessions Judge, 7th Court,  Dhaka be stayed till disposal of the appeal.
 
Ed.