Nurul Islam vs State
Citation : 13 BLC (2008) 218
Jurisdiction : Bangladesh
Appellant : Nurul Islam (Defendant, in the court of first instance)
Respondent : State (Plaintiff, in the court of first instance)
Facts :
Mst. Kanchan Bibi (the victim) was the second wife of Tajul Islam. During their 8/9 years of conjugal life, Tajul Islam often quarreled with her and occasionally assaulted her, for which she often used to come at her mother Mosammat Rupia Begum’s house. Prior to the incident, on 10.09.1994, Rupia Begum went to her daughter’s house and stayed for 17 days and came back on 28.09.1994 and again she went to the house of Tajul Islam. When Mosammat Rupia Begum did not find her daughter at home, she asked Tajul Islam about Kanchan Bibi’s whereabouts, but he could not give any satisfactory answer. As a result, she doubted that her daughter might have been killed by Tajul Islam. Thereafter, she informed the matter to the village headman and also the chairman. On 11.10.1994, she heard that a blood-smeared sack covered with mud had been found near a jungle in Uzani village. On the next day, when the police came and opened the sack, they recovered a dead body. Mosammat Rupia Begum identified the body as that of her missing daughter, Mst. Kanchan Bibi. Subsequently, she lodged an FIR at the Chandina Police Station against Tajul Islam and his 1st wife, Nurjahan. After investigation, the police submitted a final report. In that report, Nurul Islam was also named as an accused, as his name had been mentioned by Tajul Islam in an extrajudicial confession.
The trial court convicted Nurul Islam and sentenced him to rigorous imprisonment for life, along with a fine of Taka 25,000; in default, an additional four years of rigorous imprisonment.
Issues :
1. Whether an extra judicial confession by the accursed can be the basis of conviction or not, specially when there are not eye witnesses present.
2. Whether it is permissible by the law to convict a person based to the statement of a witness recorded under Section 164 of the Code of Criminal Procedure or not.
Arguments :
Appellant’s Arguments:
The learned counsel for the appellant argued that the conviction imposed by the trial court was based solely on circumstantial evidence, as no direct evidence of the occurrence was produced. He also said, there is a total absence of chain of circumstances in the present case connecting the appellant with the alleged offence of murder. They further contended that the statement allegedly made by Tajul Islam to Joynal Abedin (PW 2) mentioning the name of appellant, amounted to an extrajudicial confession, which cannot, in law, form the basis of a conviction for murder. Additionally, they argued that a witness’s statement recorded under Section 164 of the Code of Criminal Procedure may only be used by the accused for the purpose of cross-examination in the manner prescrunder Section 145 of the Evidence Act, and therefore cannot be treated as substantive evidence to support a conviction. On these grounds, they submitted that the prosecution failed to prove the charge of murder beyond reasonable doubt.
Respondent’s Arguments:
The respondent argued that the main accused, Tajul Islam, made confession to other witnesses that he, along with his wife Nurjahan, his brother-in-law, and Nurul Islam, had jointly committed the murder. It was further submitted that the statement of the witness, Monir Hossain, recorded under Section 164 of the Code of Criminal Procedure, was taken in full compliance with the legal requirements. The autopsy report also indicated the presence of multiple injuries of various sizes and shapes on the body of the deceased.
Decisions :
The court said the law is settled that in a case where there is no direct evidence available, the court has to decide the case on meticulous and critical appraisal of the circumstance and the surrounding situation. The court also said it is to be seen whether there exists a chain of circumstances or the compatibility of the circumstances to connect someone with the offence. But, it is seen that there is no such compatibility of circumstances which leads to an inevitable conclusion of guilt of the accused appellant. The Court observed that, an extrajudicial confession is a very weak piece of evidence and carries little legal weight unless the actual words used by the accused while making the confession are placed on record and the confession is reliably corroborated by independent evidence. In the absence of such corroborative evidence, an extrajudicial confession cannot be relied upon. As, the extra judicial confession made by Tajul Islam before PW2 regarding the involvement of the appellant does not find any reliable corroboration, so the conviction of Nurul Islam can’t be given based upon this extra judicial confession made by Tajul Islam.
In the question of witness statement, recorded under Section 164 of the Code of Criminal Procedure, court observed that, the maker of the statement, Monir Hossain, was not examined in the dock. Despite this, the trial court accepted his statement in its entirety and based the conviction on it, which is unsustainable in law. The Court further observed that Monir Hossain was not examined by the prosecution, although his name appeared in the charge-sheet as a listed witness. The non-examination of this prosecution witness gives rise to a presumption under Section 114(g) of the Evidence Act that, if had he been examined, his testimony would not have supported the prosecution case.
Considering all these aspects, the Court allowed the appeal and found the convicted appellant not guilty. Consequently, the judgment and order of the trial court were set aside, and the Court directed that the appellant be released forthwith.
Relevant Laws :
- The Penal Code, 1860
- Section : 34, 201, 302
- The Evidence Act, 1872
- Section : 114(g), 145
- The Code of Criminal Procedure, 1898
- Section : 164
Author :
1. Md. Atikur Rahman
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