LEX/BDHC/0086/1984

Equivalent Citation: 1985 5 BLD 9, 37 DLR (1985) 66

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)
Cr. A. 277 of 1984
Decided On: 25.10.1984
Appellants: ZAHEDA BEWA & ANOTHER
Vs.
Respondent: THE STATE
Hon'ble Judges:
Mustafa Kamal and Mohammad Abdul Wahab, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Azizul Haque, Advocate
For Respondents/Defendant: Md. Moktar Hossain, Advocate
JUDGMENT
Mustafa Kamal, J.
1 . Appellants Zaheda Bewa @ Zaheda Begum and Shah Md. Ali alias Shaheb Ali were
convicted under section 302/34 of the Penal Code and sentenced to transportation for
life each by Mr. Md. Rezaul Haque, Additional Sessions Judge, 2nd Court. Rangpur by
his judgment and order dated 19-8-81 in Sessions Trial Case No.52 of 1981. Appellant
Zaheda Begum was the informant herself in this case. On 16-4-80 at 8-45 A.M. she
lodged an F.I.R at P.S. Pirganj, District Rangpur stating that in the night following 15-4-
80 she was sleeping with her deceased husband Mukul and daughter Moushumi in their
south facing hut. At about 2- 30 A.M. in the early hours of 16-4-80 a man called her
husband from outside addressing him as 'Mama'. Her husband opened the door. Then a
tall and fat man with a moustache and wearing pink coloured tetron lungi and white
tetron full shirt entered into their hut 2 other persons fastened her mouth and took her
outside the hut and bound her with a tree. Then she heard a sound from their hut. A
little later the miscreants went out of the house. Informant Zaheda Begum was
unfastened by one of the miscreants. She rushed to their hut and found that her
husband was lying dead with knife injuries on the right side of the neck. The informant
narrated various prior incidents suggesting enmity between her deceased husband and
some persons. She suspected that Ansar, Bhola, Ismail, Jogesh, Razzaque and other
persons may have murdered her husband.
2 . P.W. 12 S.I. Atiar Rahman who was O/C of Pirganj P.S. on 16-4-80 recorded the
above F.I.R. He took up the investigation of the case, reached the place of occurrence
on the same day at 9-30 A.M. and held inquest on the dead-body of deceased Mukul as
identified by the informant. He sent the deadbody to the morgue through P.W. 10
constable Abdus Samad and constable Fakhrul Huda. He prepared seizure list and seized
some articles. On the same day he examined witnesses. He prepared sketch map with
index. He produced the informant Zaheda Begum from the residence of her father at
Guptapara, Rangpur before the Sub-Divisional Magistrate (Sadar) for recording her
confessional statement by P.W. 5 M.A. Salam, a 1st Class Magistrate. On completion of

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investigation P.W. 12 submitted charge-sheet against the accused appellants and
acquitted accused Bakul.
3 . On 21-4-1980 P.W. 5 M.A. Salam, Magistrate, 1st Class, Rangpur (Sadar) recorded
the confessional statement of the informant and appellant Zaheda Begum, Ext. 4. In the
confessional statement appellant Zaheda Begum stated inter alia that she developed an
illicit relationship with the appellant Shahed Ali. Appellant Shahed Ali came to her hut in
the evening of occurrence and disclosed that he would commit murder that very night,
wit out disclosing whom he would murder. The appellant told him that she was scared
of blood. Appellant Shahed Ali told her that she would be taken to another side. So
saying Shahed Ali went away. When Shahed Ali returned to commit murder that night
she opened the door. She asked Shahed Ali to talk to her husband and she herself went
out of the hut. On coming back she found her husband dead lying slaughtered. At the
trial the prosecution examined 9 witnesses and tendered 3 witnesses he namely P.W. 6
Abul Kalam, P.W. 7 Abu Bakar of and P.W. 9 Abdul Fattah. P.W. 10 Abdus Samad was
the police constable who accompanied the deadbody to the morgue. P.W.ll Dr. G.M.A.
Kader is the doctor who held post-mortem examination into the deadbody of deceased
Mukul on 17-4-1980. He found one incised and transversed out throat injury measuring.
5.5" x 1.5"x 3" deep in front of the neck cutting skin fascia, muscles, trachea,
oesophagus and cartoid vessels and nerves. The death in his opinion was due to
haemorrhage and shock, as a result of the aforesaid throat injury which was ante-
mortem and homicidal in nature. P.W. 12 S.I. Atiar Rahman is the Investigating Officer
of the case.
4. The defence did not examine any witness but from the trend of cross-examination of
P.Ws. the defence case appears to be that the appellants are innocent and that they
have been implicated falsely by an over enthusiastic Investigating Officer who was a
colleague of the deceased Mukul who was himself a retired police officer. The
Investigating Officer put the appellant to illegal detention at his-own house for 5 days
and obtained the judicial confession by torture, beating, threats intimidation and
inducement.
5 . The learned Additional Sessions Judge convicted and sentenced the accused-
appellants as aforesaid and acquitted accused Bakul of the charge under section 302/34
of the Penal Code.
6. P.W. 1 Masum Gowhar Bakul is the younger brother of the deceased Mukul. P.W. 2
Shamsul Alam is a seizure list witness. The deceased Mukul was the younger brother of
the wife of P.W. 3 Mofazzal Hossain. Deceased . Mukul was a 'Mamato Bhai of P.W. 4
Shaheb Ali. P.Ws 1-4 have not implicated appellant Zaheda Begum with the murder of
deceased Mukul nor have they stated that Zaheda Begum developed illicit relationship
with appellant Shaheb Ali. The learned Additional Sessions Judge has based the
conviction of the appellant Zaheda Begum solely on her confessional statement Ext.4.
7 . The substance of the confessional statement has been set out earlier. Although Mr.
Azizul Haque, the learned Advocate for the appellants has forcefully submitted that the
confession was self-exculpatory in nature, we do not think it to be so. Appellant Zaheda
Begum has sufficiently implicated herself in the murder in question. If believed to be
true and voluntary, that confession alone can form the sole basis of her own conviction.
8 . Mr. Azizul Haque has next referred to the statements of appellant Zaheda Begum
under section 342 Cr.P.C. wherein she has complained of an illegal detention in the
house of the Investigating Officer P.W. 12 Atiar Rahman from 16-4-80 to 21-4-80. She

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has also complained of torture, beating, threats and inducement. P.W. I Masum Gowhar
Bakul admits in cross-examination that P.W. 12 Atiar Rahman took the appellant Zaheda
Begum away from the house of P.W. 1 at Rangpur. However, this is no admission that
she was detained in the house of P.W. 12 from 16-4-80 to 21-4-80. Nor is there any
admission by any P.W. that she was tortured, beaten, threatened and induced to make
the confession.
9 . Mr. Azizul Haque, however, has raised the most fundamental objection against the
admissibility of the confession Ext.4 in that it was not recorded by P.W. 5 M.A. Salam
after explaining to the maker of it that she was not bound to make a confession and that
if she made a confession it may be used as evidence against her.
10. We have looked into the original confession Ext. 4 and we find that it was drawn up
on a plain piece of paper and it contained only the signature of P.W. 5 M.A. Salam at
the bottom Section 164(3) Cr.P.C. provides that a Magistrate shall, before recording any
such confession, explain to the person making it that he is not bound to make a
confession and that if he does so it may be used as evidence against him and no
Magistrate shall record any such confession unless, upon questioning the person making
it. he has reason to believe that it was made voluntarily, and, when he records any
confession, he may make a memorandum at the foot of such record to the following
effect:
I have explained to (name) that he is not bound to make a confession and that,
if he does so any confession he may make may be used as evidence against
him and I believe that this confession was voluntarily made. It was taken in my
presence and hearing, and was read over to the person making it and admitted
by him to be correct, and it contains a full and true account of the statement
made by him.
(Signed) A.B.
Magistrate
No such memorandum has been made by P.W. 5 after recording the confession. The
usual form in which confessions are recorded has also not been used by P.W. 5. A
hand-written statement on a plain piece of paper has been signed at the bottom by P.W.
5 and that is what has been turned as a Judicial confession.
11. It is a settled principle of law that the requirement of adherence to the provisions of
section 164(3) Cr.P.C. is not a mere matter of form, but one of substance. Section
164(3) is a mandatory provision of law as has been settled by the Privy Council in the
case of Nazir Ahmed V. King Emperor, AIR 1936 (P.C.) 253. Construing Ss. 164 and 364
Cr.P.C. together, the Privy Council held that it would be an unnatural construction to
hold that any other procedure was permitted than that which was laid down with such
minute particularity in the sections themselves. Section 164 Cr. P.C. is a section
confirming the power of a Magistrate and delimiting them. No doubt a Magistrate acting
U/ss. 164 and 364 Cr.P.C. is not acting as a Court, yet he is a Judicial officer, and both
as a matter of construction and good sense where a power is given to do a certain thing
in a certain way the thing must be done in that way or not at all. Other methods of
performance are necessarily forbidden.
12. In the case of Nurul Haque and others V. State 20 DLR (Dhaka) 780, a Division
Bench of the Dhaka High Court held, taking into consideration some other decided cases
on the subject that when the mandatory provisions of section 164(3) Cr.P.C. are not

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complied with a confession is inadmissible in evidence.
13. The prosecution has however examined in this case the Magistrate who recorded
the confessional statement, namely. P.W. 5 M.A.: Salam. He has stated that the
statement was read over to the maker of it who on hearing the contents signed her
name. He also stated that the confession was voluntary
14. It has been argued by Mr. Md. Mokhtar Hossain, the learned Advocate for the State
that the examination of P.W. 5 at the trial has cured the confession of its defects, if
there be a any, and the confession Ext.4 read with the statement of P.W. 5 at the trial
will make it admissible and at the same time dependable.
15. Again the Privy Council has already warned against the possibility of covering up
the incurable defects of an inadmissible confession by examining the Magistrate who
recorded the confession. The Privy Council says in the aforecited case of Nazir Ahmed V.
King Emperor AIR 1936(P.C) 253:
It is also to be observed that if the construction contended for by the Crown be
correct, all the precautions and safeguards laid down by Ss. 164 and 364 would
be of such trifling value as to be almost idle. Any Magistrate of any rank could
depose to a confession made by an accused so long as it was not induced by a
threat or promise, without affirmatively satisfying himself that it was made
voluntarily and without showing or reading to the accused any version of what
he was supposed to have said or asking for the confession to be vouched by
any signature. The range of magisterial confessions would be so enlarged by
this process that the provisions of S. 164 would almost inevitably be widely
disregarded in the same manner as they were disregarded in the present case.
We respectfully agree with the above-observations of the Privy Council and hold that the
incurable defect in the confession cannot be cured by subsequent examination of the
Magistrate who recorded the confession. Such procedure will only enlarge the range of
magisterial confessions.
1 6 . The confession Ext.4 being an inadmissible piece of document the order of
conviction and sentence passed against the appellant Zaheda Begum cannot be
sustained.
17. With regard to the appellant Shaheb Ali P.W. 3 Mofazzal Hossain and P.W. 4 Shaheb
Ali dated that the appellant Zaheda Begum reported to them that appellant Shaheb AHli
and acquitted accused Bakul along with two other persons entered into her hut at about
4 A.M. and committed the murder. Thereafter they reported this to the Investigating
Officer. P.W. 3 Shamsul Alam was at Kaunia on the date of occurrence. He came to the
place of occurrence on 16-4-80 at 1-30 P.M. By that time appellant Zaheda Begum had
already lodged the F.I.R. P.W. 4 Shaheb Ali learnt about the death of deceased Mukul at
10 A.M. on 1-4-80. He came to the place of occurrence at 12 noon on the same day and
heard about the occurrence from Zaheda Begum at a time when the latter had already
lodged the F.I.R. P.Ws: 3 and 4 therefore, did riot hear from the appellant Zaheda
Begum about the occurrence on or about the time when the fact took place. Under
section 157 of the Evidence Act such a statement attributed to appellant Zaheda Begum
could have been used for the purposes of corroborating her confession only if she made
the statement at or about the time when the fact took place. Besides, these statements
of P.Ws. 3 & 4 are no corroboration at all, as the appellant Zaheda Begum's
confessional statement is itself inadmissible in evidence. The evidence of P.Ws. 3 and 4
therefore do not connect the appellant Shaheb Ali with the murder in question in any

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manner. The case is one of no evidence against the appellant Shaheb Ali.
18. The order of conviction and sentence passed against the appellant Shaheb Ali also
cannot be sustained. In the result, the appeal is allowed. The order of conviction and
sentence passed against the appellants Zaheda Bewa @ Zaheda Begum and Shah Md.
Ali alias Shaheb Ali under section 302/34 of the Penal Code is set aside and they are
acquitted of the said charge. Appellants Zaheda Begum and Shaheb Ali may be released
at once if not wanted in any other connection.
Let the records be sent back immediate.

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