The New Nation - Internet Edition

Appellate Division

(Criminal)

Md Ruhul Amin J

MM Ruhul Amin J

Md Tafazzul Islam J

Judgment

February 14th, 2007

Shamim Beg @ Md Shamim Beg ttt

ttt.Appellant

vs

State ttttRespondent

Code of Criminal Procedure (V of 1898) Section 164

Evidence Act (I of 1872)

Section 24

It appears that the appellant went to the place of occurrence and on the request of other accused he asked the night guard of the school to go out and then other accused came killed the deceased but he did not disclose the same to anybody. Thus it appears his confessional statement is not wholly exculpatory rather the same is partly exculpatary and partly inculpatory. It is true that he did not directly participate in the murder culpatary of deceased but he participated in the occurrence by asking the night guard of the school to go out and thereby facilitating the murder of the deceased by other accused as narrated by him in his confessional statement.

It is on record that the appellant retracted his confession in writing subsequently which clearly goes to show that he made the judicial confession. In the opinion of recording Magistrate, the confession is true and voluntary. The High Court Division upon correct assessment of the materials on record arrived at a correct decision and, as such, there is no cogent reason to interfere with the judgment of the said Division t. (10,11 & 13)

Ozair Farooq, Senior Advocate instructed by Md Nawab Ali, Advocate-on-Record-For the Appellant.

Golam Kibria, Deputy Attorney-General, instructed by B Hossain, Advocate-on-Record-For the Respondent.

Judgment

MM Ruhul Amin J : This appeal by leave is directed against the judgment and order dated 7-8-2001 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1834 of 1999 dismissing the appeal.

2. Prosecution case, in brief, is that on 4-1-1996 one Khalil, the father of the deceased Azad, lodged FIR with Syedpur Police Station, District Nilphamari alleging, inter alia, that deceased Azad aged about 20 years used to work in 'The Latest VDO House' as operator located in Jikrul Haque Road, Syedpur town and one Albert Shing was owner of the said Video shop. The owner of the Video shop used to send the deceased with Video/VCP set to the house of the persons who used to hire his Video set. The further case is that on 30-12-1995 the said Albert Shing let out Video set to one Shamim Beg (convict-appellant) and sent the deceased along with the Video set to the house of the convict-appellant. The victim went there but did not return. Thereafter, the informant searched for his son but did not get any trace of him. On thorough search marks of blood near the place of occurrence were found and thereafter they found the dead body of deceased in a ditch.

3. The police, on completion of investigation, submitted charge sheet in the case. The convict-appellant Shamim Beg made confessional statement before a competent Magistrate who recorded it under section 164 of the Code of Criminal Procedure. The trial Court framed charge under sections 302/201/34 of the Penal Code.

4. The defence plea is one of innocence.

5. The prosecution has examined as many as 12 witnesses and the accused persons were also examined under section 342 of the Code of Criminal Procedure and they pleaded not guilty.

6. The trial Court on consideration of the circumstantial evidence and the confessional statement of the convict appellant convicted him under sections 302/34 of the Penal Code and sentenced him to suffer imprisonment for life. Being aggrieved he preferred appeal before the High Court Division and the High Court Division upon consideration of the materials on record dismissed the appeal.

7. Leave was granted to consider the submission that there is no legal ingredients for convicting the appellant under section 302 of the Penal Code, when the High Court Division disbelieved the case of the appellant under sections 302/34 of the Penal Code and further submission that from the confessional statement of the appellant and the evidence of PW 9, it appears that the accused person conjointly committed murder of the deceased with other accused but others were acquitted and the appellant has been convicted and, as such, the same is not sustainable as all of them stand on the same footing.

8. We have heard Mr Ozair Farooq, the learned Counsel for the appellant and Mr Golam Kibria, the learned Deputy Attorney General for the respondent and perused the judgment of the High Court Division and other connected papers.

9. In this case, the High Court Division mainly relied on the confessional statement of the appellant and the circumstantial evidence. Let us reproduce below the confessional statement of the appellant:

Avwg 30-12-1995 Bs Zvwi‡L Avjev‡U©i wfwWI †`vKvb nB‡Z wUwf I wfwmwc fvov Kwi| mKvj 10-00 Uvq Acv‡iUi †gvt AvRv` wUwf, wfwmwc Pvjy K‡i w`‡q hvq Ges e‡j ivZ 9-00 Uvq †mU wbqv hve I †mB g‡Z AvRv` ivZ 8-30 wgt Avgvi evmvq hvq Ges e‡j wUwf, wfwmwc wbqv †h‡Z G‡mwQ| Avwg wUwf, wfwmwc evwni Kwiqv †`B| AvRv`‡K H wZbRb Zzjmxivg evwjKv we`¨vj‡qi g‡a¨ wbqv hvq| wKQy¶b ci D³ †givR G‡m Avgv‡K Wv‡K| Avwg evwn‡i Avwm Avgv‡K Wv‡K| Avwg evwn‡i Avwm Avgv‡K ¯‹z‡ji g‡a¨ wbqv hvq Ges e‡j ¯‹z‡ji g‡a¨ wbqv hvq Ges e‡j ¯‹z‡ji bvBU MvW©‡K mivBqv w`‡Z e‡j| Avwg bvBU MvW©‡K evwn‡i hvB‡Z ewj‡j †m hvq| wKQy¶b ci nvi“b iW w`qv AvRv`‡K gv_vq Zvs †`q †m gvwU‡Z cwoqv hvq| ZLb †givR‡K Avwg ewj GUv wK Kiwj ZLb †m ¶zi evwni Kwiqv Avgv‡K Pzc _vK‡Z e‡j Ges Avwg ¶zi Kvwoqv wb‡Z †Póv Kwi ZLb Avgvi Kvs¸j KvwUqv hvq Avwg cÖvY f‡q Pzc _vwK| Zvici AvRv`‡K ¯‹z‡ji wcQ‡b wbqv hvq Ges †gviR ¶zi w`qv AvRv‡`i Mjv †K‡U RevB K‡i| Av‡cj nvZ a‡i wQj nvi“b `yBUv (†Qvov) awiqv wQj| Avvgv‡K KvD‡K ej‡Z wb‡la K‡i e‡j ej‡j †ZviI G Ae¯’v n‡e| c‡i ¯‹z‡ji wfZ‡i 1wU MZ© wQj Zv‡Z jvk †dwjqv evjy gvwU w`qv Pvcv w`qv iv‡L| Avwg evox P‡j Avwm| Avwg †ijI‡q nvmcvZv‡j hvB Ges nvZ e¨vÛR Kwi|

10. Thus it appears that he went to the place of occurrence and on the request of other accused he asked the night guard of the school to go out and then other accused came and killed the deceased but he did not disclose the same to anybody. Thus it appears that his confessional statement is not wholly exculpatory rather the same is partly exculpatory and partly inculpatory. It is true that he did not directly participate in the murder of the deceased but he participated in the occurrence by asking the night guard of the school to go out and thereby facilitating the murder of the deceased by other accused as narrated by him in his confessional statement.

11. The learned Counsel submits that the signature or LTI of the appellant was not obtained in the confessional statement. So the same cannot be relied upon. But it is on record that the appellant retracted his confession in writing subsequently which clearly goes to show that he made the judicial confession. In the opinion of recording Magistrate, the confession is true and voluntary. Together with this we have the circumstances of the case, PW 8, Albert 5hing, in his evidence, stated that on the night of occurrence at about 8.30, the deceased told him that he was going to bring VCP set but thereafter the deceased did not come back and subsequently his dead body was found near Tulshiram School. PW 9, Mostak Ahmed in his evidence stated that on 30-12-1995 he went to perform his duty as night guard as substitute of his father at Tulshiram School and found some persons talking near the latrine of the school. At that time accused Apel told him to go out and about 15/20 minutes after two more persons came and all of them told them to go out. He went to nearby primary school and stayed for half an hour near a grocer's shop.

12. The learned Deputy Attorney-General submits that the confessional statement of the appellant is sufficient for his conviction and in addition there is circumstantial evidence also and the High Court Division rightly maintained his conviction and sentence and dismissed the appeal.

13. From the discussion above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision and, as such, there is no cogent reason to interfere with the judgment of the said Division.

The appeal is dismissed.