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Confession of co-accused not sustainable

High Court Division
Criminal Appellate Jurisdiction
Syed Rafaat Ahmed J
Md Habibul Gani J
Judgment
Fabruary 1st, 2011

State...........Petitioner
vs
Moksed Ali and others..........
.........Condemned-Prisoners*

Evidence Act (1 of 1872)
Section 30
Confession of a co-accused cannot be resorted to under any guise as substantial evidence to convict another but may be used as a relevant fact only to lend assurance to any other evidence.
Islamuddin vs State, 13 BLC (AD) (2008)81: Amir Hossain vs State, 37 DLR (AD) 139: Abul Khayer vs State: 46 DLR 212 and State vs Lalu Miah, 39 DLR (AD) 117 ref.
Salahuddin Talukder, Advocate-For the condemned Prisoner
Dil Afroza Begum, Advocate-For the Condemned Prisoner/State Defence Lawyer.
Judgment
Syed Refaat Ahmed J : The condemned-prisoners being Moksed Ali, son of late Kafiluddin alias Kabiluddin, Tutul' son of Sonali Mollah and Ripon (Absconding), son of Momtaz Khan have been convicted under section 302 read with Section 34 of the Penal Code attracting sentences of death as pronounced and handed down by the learned Additional Sessions Judge; Manikganj in Sessions Case No. 73 of 1999. This has necessarily attracted the provisions of section 374 of the Code of Criminal Procedure ("the Code") requiring such sentence to be confirmed by this Court. The case record together with the judgment having been, therefore, sent to this Court, this Court registered the same as Death Reference No. 139 of 2005. This is being considered concurrently with Jail Appeal Nos. 1058 of 2005 and 1059 of 2005 and Criminal Appeal No. 4422 of 2005 as preferred variously against the said Judgment by the Condemned Prisoners.
2. or the six accused persons facing trial and leading to the delivery of the Judgment on 1-9-2005, Moksed, Tutul and Ripon were convicted under section 302 read with section 34 and sentenced to death while Moksed, Tutul, Nitai alias Sohel (Absconding) were found guilty of attempt to murder under section 307 read with section 34 and sentenced to imprisonment for life. The other two accused persons, Adalat Khan and Mobarak were acquitted. It is noted that of the three said Condemned Prisoners, Tutul and Ripon were both absconding at the time that the investigation into this case began but subsequently Tutul was arrested on 28-9-2003. Ripon, on the other hand, has been absconding all throughout the investigation, the trial and thereafter through to the filing of this Death Reference. Nitai alias Sohel is found to have been absconding after being granted bail initially and such bail was eventually cancelled on 4-5-2003.
3. The date and time of occurrence of the offences, and as emerges from the First Information Report (FIR), is 24-9-1997 and placed at any time between sunset that day to dawn the next day. The informant Sub-Inspector Abul Khair lodged the FIR on 26-9-1997 citing the commission of a section 302 offence by unknown persons and by the time the Charge Sheet was prepared on 18-7-1998, i.e .. approximately ten months later, there is noted the emergence of six named accused persons who went on trial as above. The FIR recovery of an unidentified dead body on 25-9-1997 bearing signs of grievous injury and is found in the subsequent course of events to be related by the SI informant to the case of one Badshah who later emerges as the PW 5 in this case and also a victim of the offence under section 307 read with section 34. In fact. Badshah's revelations put the informant SI an notice of the fact that the un identified body found on 25-9-1997 is of a victim who fall prey to a chain of circumstances to which Badshah equally fell victim. In the course of his investigation a definite opinion was, therefore, formed by the SI as to the relatedness of these two cases.
4. The prosecution case, in a nutshell, has to do with events as transpired on 24-9-1997 and fatefully set into motion by individuals of whom the Condemned Prisoners Moksed and Tutul are most prominent. Seeking to hire a "Tempo" to journey from Nabinagar to Aricha ostensibly to attend to certain business, these two scouting to undertake the trip at the best possible fare chanced upon a "Tempo"- driver named Sayeed who is eventually identified in this case as the hapless victim whose corpse would be discovered the next day by the SI informant. The bargain struck between Sayeed and these two Condemned Prisoners, i.e., his would-be-assailants was also for Sayeed to be accompanied by his young assistant or "helper" Badshah. The route travelled by these four persons take a trajectory taking the two assailants and their unsuspecting victims from Nabinagar to Manikganj and by the end of the day to a place called Utholi followed by Tepra Bazar and its adjacent locality Rupsha. It is at Rupsha that at least the two Condemned Prisoners Moksed and Tutul, by all corroborative oral evidence, are noted to escort an unsuspecting Sayeed away from his "Tempo" leaving it parked in the Shared compound of the PWs 10 and 11 under Badshah's care. Accounts available chiefly of Badshah and Moksed of what occurred thereafter establish the fact that Sayeed meet his unfortunate and violent end at some point after being so escorted way at the hands of at least two of the Condemned Prisoners Moksed and Tutul. The next morning these individuals along with Nitai alias Sohel returned to where the "Tempo" was parked overnight under Badshah's care and, thereafter, are found to have led Badshah away to an unidentified spot before subjecting him to concerted assault with intent to kill. It so transpired, however, that two abortive attempts to ensure Badshah's death remained unsuccessful and he was fortunate to survive that nightmare by access to adequate and prolonged medical care. Badshah, thereafter, lived to tell his ho