The New Nation - Internet Edition

(From previous issue)

He also refers to the decision in the case Madi Ganga V. State of Orissa, AIR 1981 (SC) 1165, where it was held that section 80 of the Evidence Act makes the examination of a Magistrate unnecessary in admitting the con confessional statement into evidence.

With regard to the contention of the learned advocate for the appellants about the alleged defect in the charge and examination of the accused under section 342 of the Code of Criminal Procedure, the learned D.A.G submits that the charge is required to reflect only the time and place of the occurrence and the, identity of the victim; there is no necessity to indicate the manner of the occurrence in the charge. He submits that it is only necessary to indicate the manner of the occurrence in the charge if it is not apparent from the name of the offence itself. With regard to the 342 statement, the learned D.A.G. submits that the requirement of law is that the accused is to be informed of the material evidence brought against him indicating his complicity in the offence alleged and that, in the facts of the instant case, such requirement has been satisfactorily met.

The learned D.A.C. further submits that the retraction mentioned by the learned advocate for the defence was not considered by the trial Court and in any event, such retraction is immaterial if the confession is accepted as voluntary and true. In this regard he refers to Balkul Chandra Sarker/Vs. The State, 45 DLR 260.

Let us now consider the evidence and material on record, as produced by the prosecution in order to substantiate the, charges levelled against the accused persons. Substantiate the charges leveled against the accused persons.

Md. Hemayet' Uddin, the Officer-in-Charge of Kachua Police Station deposed as PW 1 stating that he initiated the Kachua Police Station Case No. Stated 21.4.95 under sections 302/109/34 of the Penal' Code. This witness also gave evidence as PW 5 as the first Investigating Officer stating in his examination-in-chief that upon being entrusted with investigation he visited· the place of occurrence, prepared the sketch map (exhibit 2) and index (exhibit 3), wherein his signatures arc respectively marked as exhibits 2/1 and 3/1. He seized alamats and prepared seizure list (exhibit 4), wherein his signature is marked as exhibit 4/1. He stated that the alamat is a letter written by the victim, which he identified in Court. In his cross- examination he denied the suggestion that he did not investigate the case properly.

PW 2, Md. Abdur Rashid did not support the prosecution case and was declared hostile by the prosecution. In his cross-examination by the prosecution, he denied all the suggestions of the 'prosecution and the prosecution failed to elicit anything of significance from the witness.

PW3, Md. Zakir Hossain Dakua stated that he saw the victim Monir Hossain sitting by the road side on 12.3.95 and, upon his query, he told him that he came from Camilla and that he had been brought there by Amir and was staying at the house of Amir's father-in-law. He heard 18-20 days later that a person had, died in the field of Ragudattakati village. There was nothing of any significance elicited in his cross-examination.

PW 4, Abdus Shukur was the Sub-Inspector of Police, who was entrusted with examining the informant and recording his statement under section 161 of the Code of Criminal Procedure, which he did on 18.10.95.

PW 6, Abdul Matin, another Sub-Inspector of Police stated in his examination-in-chief that he investigated the U.D. Case No. 5/95 dated 13.3.95 and visited the place of occurrence, held inquest, seized alamats and took steps for post mortem examination of the dead body. He proved the post mortem examination report (exhibit 5), when in his signature is market as exhibit 5/1. He stated that he submitted a 6nal report with regard to the U.D. case and a regular case was started. He proved the U.D. Case (exhibit 6), wherein his signal the, is marked as exhibit 6/1. In his cross-examination he stated that one Narayan Chandra Das (not examined) was the informant in the U.D. case. He deposed that it is stated in the U .D. case that the dead body was of an unknown person and the inquest was therefore also of an unknown person, Suce no. one recognized the dead body.

PW 7, Dr. Goura Priya Majumder, deposed in support of the post mortem examination report, wherein he noted the following injuries:

1. One deep incised injury over right side of forehead and face start1l1g from car to the nose cutting underlying bone size 6" x 1" x ½ II (deep).

He stated that there arc nine, similar injuries detailed in the PM report.

On dissection: Extravasated ante mortem good clot present along and around the injuries described above.

Much soft tissue and bone cut deep to the injuries of face i.e. 1 & 2. Trachea transversely cut 11/2". Brain tissue injured deep to injury of skull. Muscles soft tissue scapula cut transversely deep to injury No.6. The stomach and liver injured deep to injuries of abdomen, abdominal cavity contained liquid blood 6 oz, left lung injured and the cavity contained liquid blood 6 oz.

In his opinion the death was due to shock and haemorrhage caused by· above mentioned injured which were ante mortem and homicidal in nature.

He proved the post mortem examination report (exhibit 7), wherein his signature is marked as exhibit 7/1.

In his cross-examination he stated that the dead body was brought to him and identified by Constable 276 Abdur Rahman. He denied the suggestion that he did not conduct the post mortem examination properly.

PW 8, Md. Shahidul Islam Khan, a cousin of the victim, identified the letter (exhibit 8) as being in the hand writing of deceased Monirul Islam, which was marked as exhibit 8/1. He stated that deceased that deceased Monir worker at Dhaka Transport owned by someone from Habiganj and whose labour leader was Amir Hossain, who took money from Monir in order to send him abroad. Monir went to Kachua in order to arrange payment of the money to go abroad and on 13.3.95 the Office-in-Charge informed that his dead body had been recovered. In his cross-examination he stated that he could not say how the dead body was discovered, but that he found out that it was recovered in Kachua. He stated that he last met deceased Monir on 8/9th March '95 at which he told him that he was going to the house of the labour leader in Kachua in order to arrange his travel abroad. He denied that he was deposing falsely at the behest of police.

PW 9, Abdul Malek Khan, P

W 11, Habibur Rahman Dakuya and PW 15, Ramesh Chandra Das were tendered by the prosecution. Their cross-examination by the defence was declined.

PW 10, Mollah Abdul Gaffar, was a witness to the seizure list relating to the money bag, later found to belong to deceased Monirul. He proved the seizure list (exhibit 4), wherein his signature is marked as exhibit 4/2. In his cross-examination he stated that he did not know the owner of the bag which was found next to the dead body.

The informant Md Bashirul Islam Khan, brother of the deceased Monir, deposed as PW 12. He was not an eyewitness of the occurence and only found out about the death of his brother from the information which he received from Chandina Police Station, which was relayed from Kachua Police Station on 15.3.95. He stated that he went to Kachua Police Station on 21.4.95 and found out that a U.D. case had been filed on 13.3.95 and, upon his query, the Officer-in-Charge showed him the black money bag, which had been found and wherein the name of Monir Khan and the address appeared. Thus, he realised that the dead person was his brother. He also recognised his brother's hand writing and also saw the photograph, which he recognised as his deceased brother. He also identified his brother by the wearing apparel. In his cross-examination he admitted that he did not see the occurrence and that he mentioned two persons in the F.I.R. as suspects.

PW 13, Golap Halder and PW 14, Ridoy Ranjan Das were mere witnesses to the inquest. They denied knowledge as to the identity of the deceased person.

PW 16, Md. Isahak Dukhu is the Second Investigating Officer, who arranged for accused Amir Hosain Sheikh, to have his statement recorded by a Magistrate under Section 164 of the Code of Criminal Procedure, which was recorded by Magistrate Abdul Hadi.

He also examined a number of witness and recorded their statements under section 161 of the Code of Criminal Procedure. Upon finding Prima-facie case he submitted charge-sheet against ten accused persons under sections 302/109/379/34 of the Penal Code. In his cross-examination he stated that he took over investigation of the case from 21.5.95. In his further cross-examination he stated that he arrested Amir Hossain on 1.7.95 and forwarded him to the Court on 2.7.95. He denied the suggestion that accused Amir did not make the confessional statement voluntarily. He also denied the suggestion that after arresting the accused he beat him and that the accused was compelled to confess according to his instruction.

The learned trial Judge, upon consideration of the evidence and materials on record, convicted the accused persons and sentenced them as stated above prescribed by law (i.e. by observing all the formalities prescribed by Ss, 164 and 364 Cr. P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it." His lordship went further to hold as follows: "The only two requirements for admitting such a confession into evidence as a self-proved document is (1) that it was taken in accordance with law and that (2) the identity of the accused who made the confession has been satisfactorily proved before the Court."

In the facts in the instant case, we do not find any challenge to the fact that accused Amir Hossain made the confessional statement nor do we find that the confessional statement was recorded, other than in accordance with the law. We may also point out that in the case of Babul alias Abdul Majid Khan and ors. (cited above), referred by the learned advocate for the appellants, it was observed as follows: "The said confessions were not proved formally by examining the Magistrate who recorded them. Even so the High Court Division was justified in holding that under section 80 of the Evidence Act, the Court was entitled to presume that the documents (containing confession) were genuine; that any statements as to the circumstances Islam Sheikh and also condemned accused Moti Howlader, Anser Ali Sheikh, Sultan Sheikh and Adhir Kumar Das alias Adhir Sadhu is set aside. They are acquitted of the charges levelled against them. Appellants Hemayet Sheikh, Eskender Howlader, Babul Sheikh and Nazrul Islam Sheikh may be released from custody forthwith if not wanted in connection with any other matter.

The warrant of arrest in respect of Moti Howlader, Sultan Sheikh and Adhir Kumar Das alias Adhir Sadhu is hereby recalled. The Jail Appeal No. 146 of 2004 is accordingly, deposed of.

Accused Amir Hossain Sheikh is directed to be removed from the condemned cell and to be kept in custody in accordance with law.

With regard to convict accused Anser Ali Sheikh, we find that the accused having died during the course of trial, the order of conviction and sentence passed against him is erroneous. The judgement in respect of Anser Ali Sheikh is a nullity. In this regard we wish to put on record our utter dissatisfaction at the treatment of this trial by the learned Judge and the lack of application of judicial mind which is patently evident, since he has condemned to death a person who was already dead according to the records before him. We fail to understand how a senior judge conducting a serious criminal trial can be so callous as to ignore the records, which are very much before him.

The order sheet clearly shows that a police report about the death of Anser Ali Sheikh was called and received by the Court. It is very much in the Court's records. Nevertheless the learned Judge treated the dead accused as absconding and awarded the death sentence upon him. The lackadaisical way in which a senior judicial officer has scruptinised the record of the case is highly deplorable.

The Registrar, Supreme Court of Bangladesh is directed to take steps in order to keep a copy of this judgement in the service record of Md. Golam Rabbani, the author Judge of the impugned judgment, who was at the relevant time Additional Sessions Judge, Bagerhat and also, in the light of our abovementioned observations, to make enquiries into his service records in order to assess whether the learned Judge is capable of continuing the functioning as a judicial officer.

Send down the lower Court record at once.

We have perused the evidence and materials on record and considered the submissions of the learned Advocates. It appears from the deposition of the witnesses that there was none who saw the occurrence of the killing of the victim and in the facts of the instant case there is also no circumstantial evidence connecting the accused persons with the death of the victim. We find from the evidence of PWs 3 and 8 that the victim was taken by accused Amir Hossain Sheikh to the house of his father-in-law, but none of the witnesses mentioned the names of any accused persons, other than Amir Hossain. Thus, the only evidence on record of any significance is the statement of accused Amir Hossain recorded by the Magistrate under section 164 of the Code of Criminal Procedure.

Contention has been raised with regard to the admissibility of the confessional statement of accused. Amir Hossain. Several cases have been cited before us, some of which tend to suggest that the confessional statement should not be admitted without the examination of the Magistrate, who recdorded the statement and also, conversely, that the statement recorded under section 164 of the Code of Criminal Procedure need not be proved by any witness and that it can be presumed to be correct under section 80 of the Evidence Act. We note from the records that by order dated 22.7.95 the Magistrate of the Cognisant Court, upon an application to record the statement of the accused Amir Hossain, sent the accused with an order that his statement would be recorded by Magistrate M A Hadi, who was entrusted with the responsibility of recording the confessional statement of the principal accused Amir Hossain Sheikh. On the same day an order sugned by Magistrate Hadi shows that he recorded the confessional statement of the accused and sent back the case record and the accused to the Cognisant Court. It also records that the form for confessional statement was filled and kept with that record.

(To be continued)

It is seen that on the same day the record and the accused were received back by the Congnisant Court and the accused was sent to jail custody. Although, we find two retraction petitions, one dated 28.8.95, and the other dated 12.12.96, which are lying in the record, it appears that the first such retraction petition was not signed by the accused and, upon scrutiny, we find that the signature on the second retraction petition dated 12.12.96 does not bear any resemblance to the signature of accused Amir Hossain appearing in the vokalatnama which has been filed by the appellant along with his memo of appeal. We also note that the signature in the volalatnama of accused Amir Hossain tallies with the signature of accused Amir Hossain as appearing in the confessional statement recorded by the Magistrate. We have also verified the contention of the learned D.A.G. that the accused was rather eager to make the confessional statement, so much so that he himself, in his own handwriting, wrote that altogether nine, including himself, were involved in the occurrence. Moreover, there was nothing said by the accused Amir Hossain when examined under section 164 of the Code of Criminal Procedure either denying having made the confessional statement or having made the statement due to any duress or compulsion. We have minutely gone through the form of the confessional statement and the statement of the accused itself written in the hand of the Magistrate and find that all the legal formalities have been complied. There is no allegation that accused Amir Hossain Sheikh did not make any such confessional statement. On the other hand, the body of the confessional statement shows that the accused voluntarily made the confession, where it is seen that in his own handwriting he wrote above his own signature. Thus, there can be no doubt that accused Amir Hossain Sheikh made the confessional statement voluntarily and no question has been raised as to its truthfulness.

With regard to the marking of the confessional statement as exhibit at the behest of the Court, we are of the view that in the facts and circumstances of the case such marking was not illegal, although undoubtedly the application by the learned A.P.P for admitting the 164 statement under the provisions of section 509 of the Code of Criminal Procedure was misconceived and allowing such application by the trial Judge was patently illegal. Nevertheless, that does not detract from the veracity of the statement nor the legality of the fact that such statement can be admitted into evidence. In this regard we may refer to section 533(1) of the Code of Criminal Procedure, which provides as follows: "If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is rendered or has been received in evidence, finds that any of the provisions of either of such sections have not been compiled with by the Magistrate recording the statement, it shall take evidence that such persons duly made the statement recorded, and notwitbstanding anything contained in the Evidence Act. 1872, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits."

We infer from this provision that the examination of a Magistrate in connection with the recording of a statement of the accused under section 164 of the Code of Criminal Procedure becomes necessary only when a question is raised as to whether or not the Magistrate complied with sections 164/364 of the Code of Criminal Procedure in recording the statement or as to whether the statement was duly made by the accused. We take support from the decision in Emran Ali@ Md. Emran & ors. Vs. State, 37 DLR 1, whedrein Mostafa Kamal, J as he then was, observed as follows: "As such when the confession has been recorded in accordance with law by observing all the formalities