Confession of an accused person against a co-accused is not evidence

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(From previous issue)
21. PW 3, Mosleuddin, is the Imam of local mosque who deposed that occurrence took place in the night following on 10-12-1994; that he resided within godown premise; that he heard the sound of entering of a truck in the godown premises, that he tried to come out from the room but his room was closed from outside; that when Rezaul and Naimuddin opened the door from outside, then he came and saw the occurrence and informed the matter to the local people through the mike of mosque and thereafter the local people came and saw the occurrence.
22. PW 4, Mohammad Ali, is a local person, who deposed that in the next morning of occurrencc, he went to the place of occurrence and saw a broken lock of the door of god own No.3 and after some days he came to know that some bags of rice were recovered from Shantahar.
23. PW 5, Naimuddin, was tendered by the prosecution and the defence declined to cross-examine him.
24. PW 6, Md Helal Uddin, deposed that he is a rice merchant and he supplied rice to food godown in the year 1994.
25. PW 7, Md Mahbubuzzaman, deposed that police seized some articles from food godown in his presence through a seizure list marked Exhibit :2 and his signature therein is marked Exhibit 2/1.
26. PW 8, Md Shahiduzzaman, is a Magistrate, First Class, Naogaon. He testified that on 14-121994 he recorded the confessional statements of accused Azad Hossain alias Lalu and of accused
Abul Hossain on 5-1-1995, that he also recorded the confessional statement of accused Azimuddin under section 164 of the Code of Criminal Procedure and that he identified the statements which are marked Exhibits 3, 4 and 5.
27. In the cross-examination, he stated that the confessional statements were taken observing all legal formalities. He denied the defence suggestion that the confessional statements were obtained through torture and coercion and that they did not confess voluntarily.
28. PW 9, Mustafizur Rahman, deposed that he carries on rice business taking the godown of Azimuddin on rental basis.
29. When he deposed that police did not seize any rice from his godown, this witness was declared hostile.
30. In the cross examination, he den ied the prosecution suggestion that police seized 95 bags of rice in his presence, in the body of seized rice bags there is written Saraigachhi Food Godown. He admitted his signature in the seizure list.
31. PW 10, Mohammad Alam, and PW 11, Md Bablu, were tendered and the defence also declined to cross-examine them.
32. PW 12, SI Saidur Rahman, is the investigating officer who deposed that taking the task of investigation, he visited the place of occurrence, prepared the sketch map with separate index.· thereof: recorded the statements of the witnesses; under section 161 of the Code of Criminal Procedure and placed accused Abul Hossain, accused Emran Ali and Azimuddin for recording their confessional statements by the Magistrate. He further testified that the looted goods were recovered by the Officer-in-charge, Naogaon and that finding prima facie case, he submitted charge sheet being No.2 dated 7-11-1994 against the accused persons under sections 395/412 of the Penal Code.
33. In the cross-examination, he categorically stated that the dacoits looted 122 bags of rice from godown No.3; there is a mentioning of He al Rice Mill and WQCP in the bag and that 16.55 metric tonnes of rice were recovered from a ccused Azimuddin in his presence.
34. He denied the defence suggestion that the informant in collusion with Night Guard and Sweeper misappropriated the alleged rice and that the informant filed the case against the accused persons on false plea in order to save themselves.
35. PW 13, ASI Md Zahirul Hoque, who verifies the names and addresses of Bachchu Miah and others and their antecedents but found no other cases excepting the case under review.
36. PW 14, Inspector Ruhul Amin who was Officer-in-Charge Naogaon Police Station on 1212-1994. He deposed that getting a message from Porsha Police Station regarding dacoity of Saraigachhi Food Godown, he searched the matter and came to know that dacoits kept the looted rice in the rice mill of Mustafizur Rahman and the rice mill is located at New Sahapur under Naogaon police station. He making a GD No. 367 dated 12-12-1994 went there and came to know that the godown of that mill was owned by Azimuddin on rental basis. He testified that they recovered and seized 92 bags of looted rice from north, south side of that godown as per the pointing out of Azimuddin in presence of Md Alam and Bablu; that they arrested Azimuddin through seizure list that there is writing or Saraigachhi Food Godown on each bag of 19931994; that the seizure list is marked Exhibit 3 and his signature is marked as Exhibit 3/1; that on enquiry, accused Azimuddin confessed his guilt and as per his statement he arrested accused Azad Hossain and Mokbul and that he handed over the accuseds and the looted goods to the Officer-in Charge, Porsha Police Station.
37. He stated in his cross-examination that accused Azimuddin told him that he purchased the seized rice.
38. These are all the evidence adduced by the prosecution.
39. Fundamental principle of Criminal Jurisdiction is that onus of proving everything essential to the establishment of charge against accused lies upon the prosecution which must prove charge substantially as laid down i.e. to prove to the hilt beyond all reasonable doubt on strength of clear, cogent, credible and unimpeachable evidence:. Proof of charge must depend upon judicial evaluation of totality of evidence, oral and circumstantial, and not by an isolated scrutiny of evidence. Prosecution version is, also required to be judged taking into account the overall circumstances of case with a practical, pragmatic and reasonable approach in the appreciation of evidence. . It is always to be remembered that the graver the charge, the greater is the standard of proof required.
The doctrine of Presumption of Innocence is always in favour of accused. The accused person must be presumed to be innocent until the guilt is proved by cogent and credible evidence.
40. A Judgse does not preside over a Criminal Trial merely to see that no innocent person is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. A judge is to sift grain out of chaff. Therefore, he cannot afford any favour other than truth and only the truth.
41. In the touchstone of above stated principles of Criminal Jurisprudence, the points formulated are being addressed.
42. It appears that convict appellants Nurul Islam, Khalil @ Md Khalilur Rahman and Md Moazzem Hossain were convicted under Section 395 of the Penal Code.
43. For better appreciation, let us reproduce section 395 of the Penal Code in the following lines:
Section 395: Punishment for Dacoity whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be alible to fine."
44. There are three ingredients of this section:
1. Five or more persons were jointly concerned in the crime.
2. One or more out of the them committed or attempted to commit robbery.
3. Others were present and aided the commission of attempt to commit robbery.
45. Now let us see whether the charges of offence under section 395 of the Penal Code have been substantiated in view of the evidence on record and in the light of principles of law formulated under this section.
46. The allegations against the convict appellants are that they along with others coml1lillcd dacoity in No. 3 godown of Saraigachhi Food Godown in the night following 10-12-1994 and looted away 122 b

19 June, 2013 Wednesday

Confession of an accused person against a co-accused is not evidence