Sree Mishon Chandra Das Vs. The State, 2016(1) LNJ (AD) 46

Case No: Jail Petition No. 10 of 2011

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Biswajit Deb Nath,Mr. A.B.M. Bayezid,,

Citation: 2016(1) LNJ (AD) 46

Case Year: 2016

Appellant: Sree Mishon Chandra Das

Respondent: The State

Subject: Confessional Statement,

Delivery Date: 2015-04-09

APPELLATE DIVISION
(CRIMINAL)
 
Md. Abdul Wahhab Miah, J
Muhammad Imman Ali, J
A. H. M. Shamsuddin Choudhury, J.

Judgment on
09.04.2015
  Sree Mishon Chandra Das
... Petitioner
Versus
The State
...Respondent
 
Code of Criminal Procedure (V of 1898)
Section 164
On perusal of the statement of the petitioner  recorded under section 164 of the Code of Criminal Procedure, it appears that the convict petitioner was definitely present at the time of occurrence and took part in the killing of the victim by standing guard while, according to him, other accused persons killed the victim. He not only stood guard but also took part in the jubilation along with all the other assailants. It, therefore, cannot be said that the confession was exculpatory, or that the common intention to kill the victim was absent in the case of the petitioner. . . . (12)
 
Penal Code (XLV of 1860)
Section 34

When the accused himself admits to his own complicity in the commission of the offence, even though he did not take part in the violence which led to the death of the victim, he cannot escape his liability which is imputed upon him by section 34 of the Penal Code. Clearly the petitioner and the co-accused all went to the place of occurrence with the common intention of killing the victim, and he took part by standing guard while the others dealt the fatal blows. . . .(13)
 
For the Petitioner: Mr. A. B. M. Bayezid, Advocate.
For Respondent: Mr. Biswajit Deb Nath, Deputy Attorney General.
 
Jail Petition No. 10 of 2011
 
JUDGMENT
Muhammad Imman Ali, J:
 
         This jail petition is directed against the judgment and order dated 10.06.2010 passed by  a Division Bench of the High Court Division in Criminal Jail Appeal No.357 of 2006 dismissing the appeal of the petitioner, which was preferred against the judgement and order of conviction and sentence passed by the learned Judge, Druto Bichar Tribunal, Rajshahi in Druto Bichar Case No. 03 of 2002 wherein he had been convicted under section 302/34 of the Penal Code and sentenced to suffer   imprisonment for life and also to pay fine of Tk. 20,000/-, in default, to suffer rigorous imprisonment for 1(one) year more.
 
2.      The prosecution case, in brief, is that on 08/12/2003 the victim Alo Khandokar @ Shawkat Ali Khandakar returned to his house from Taherpur Bazar by motorcycle. At about 5:30 p.m. when he reached in front of Md. Shukur Ali’s Saw-mill at Taherpur Kalibari Mor some unknown miscreants killed the victim. Thereafter, the Officer-in-Charge, Bagmara Police Station, recorded the Ejahar on the verbal statement of Most. Rokshana Parveen(P.W.1), wife of the deceased. Accordingly, Bagmara P.S. Case No. 7 under section 302/34 of the Penal Code dated 08.12.2003 was started.
 
3.      After completion of investigation police submitted charge-sheet No. 153 dated 04.10.2004 against the appellant and nine others under sections 302/34 of the Penal Code.
 
4.      Thereafter, the case record was transmitted to the Court of Sessions Judge, Rajshahi. The learned Judge of the said Court took cognizance of the offence against the petitioner and others under the same section. The case was registered as Sessions Case No. 348 of 2005. Thereafter, the case record was transmitted to the Court of Additional Sessions Judge, 2nd Court, Rajshahi for trial, who framed charge against all the accused including the petitioner under section 302/34 of the Penal Code, which was read over and explained to the accused on dock to which they pleaded not guilty and claimed to be tried.
 
5.      During trial the prosecution examined as many as 19 (nineteen) witnesses, but the defence did not examine any witness. The convict-petitioner and others were examined under section 342 of the Code of Criminal Procedure when they again pleaded their innocence.
 
6.      After hearing the parties and considering the evidence and materials on record, the trial Court convicted the petitioner and two others under section 302/34 of the Penal Code and sentenced him as mentioned above.
 
7.      The convict-petitioner thereafter preferred Jail Appeal No. 357 of 2006 before the High Court Division which upon hearing, by the impugned judgement, was dismissed.
 
8.      Mr. A.B.M. Bayezid, learned Advocate appearing on behalf of the convict-petitioner submits that there was no eye witness to the occurrence, and the only evidence against the convict petitioner was his statement, recorded under section 164 of the Code of Criminal Procedure. He submits that the confessional statement was an exculpatory one and, as such, could not form the basis of conviction of the convict-petitioner. He submits that the High Court Division erred in upholding the conviction and sentence passed by the trial Court for an offence under section 302/34 of the Penal Code which was based solely upon the petitioner’s uncorroborated confessional statement. The learned Advocate points out that the accused in his statement made under section 342 of the Code of Criminal Procedure alleged that the confessional statement having been recorded by a Magistrate who was related to the victim, ought not to have been taken into consideration as evidence since the learned Magistrate was biased. He points out that the accused, when examined under section 342 of the Code of Criminal Procedure, also alleged that the police assaulted him and that the learned Magistrate took his signature on blank paper. The learned Advocate finally submits that the case is one of no legal evidence and, as such, the High Court Division erred in upholding the conviction and sentence of the petitioner.  
 
9.      Mr. Biswajit Deb Nath, learned Deputy Attorney General appearing on behalf of the respondent made submissions in support of the impugned judgement and order of the High Court Division. 
 
10.    We have considered the submissions of the learned Advocate for the petitioner and the learned D.A.G. for the respondent, perused the impugned judgment and order of the High Court Division and other connected papers on record.
 
11.    The High Court Division upheld the trial Court’s conviction of the accused found guilty under section 302 read with section 34 of the Penal Code. We find that the High Court Division did not discuss the evidence in detail, but observed that the learned Judge of the trial Court upon consideration of several decisions of the higher judiciary held that the confessional statement was true and voluntary and, as such, felt that the judgement and order of conviction and sentence did not call for any interference. Referring to the evidence of the learned Magistrate who recorded the confessional statement, the High Court Division observed that the learned Magistrate categorically stated before the Court that the convict did not raise any objection in respect of recording of the confessional statement and, accordingly, the High Court Division found that the confessional statement was true and voluntary. It was also observed that according to the doctor, who had conducted the post mortem examination, there were several injuries on the person of the deceased and in his opinion the death was due to shock and hemorrhage as a result of those injuries, and accordingly the High Court Division upheld the conviction and sentence.
 
12.    On perusal of the statement of the petitioner  recorded under section 164 of the Code of Criminal Procedure, it appears to us that the convict petitioner was definitely present at the time of occurrence and took part in the killing of the victim by standing guard while, according to him, other accused persons killed the victim. He not only stood guard but also took part in the jubilation along with all the other assailants. It, therefore, cannot be said that the confession was exculpatory, or that the common intention to kill the victim was absent in the case of the petitioner. 
 
13.    So far as corroboration of the confessional statement is concerned, we find corroboration of the confessional statement from the injuries found on the body of the deceased. Moreover, when the accused himself admits to his own complicity in the commission of the offence, even though he did not take part in the violence which led to the death of the victim, he cannot escape his liability which is imputed upon him by section 34 of the Penal Code. Clearly the petitioner and the co-accused all went to the place of occurrence with the common intention of killing the victim, and he took part by standing guard while the others dealt the fatal blows.
 
14.    We note from the confessional statement itself that the accused was specifically asked whether the police had tortured him to which he had replied in the negative. He also added that he was making the confessional statement due to pricking by his conscious. 
 
         We find from the endorsement of learned Magistrate which is found in the form of the recorded statement that upon examination of his body no sign of torture was found. Taken as a whole we do not find any irregularity or defect in the recording of the confessional statement, which in our view has been rightly found to be true and voluntary.        
 
15.    In view of the above discussion, we do not find any illegality or infirmity in the impugned judgment and, therefore, find no reason to interfere with the impugned judgment and order.
 
            Accordingly, the jail petition is dismissed.  
 
            Ed.