High Court Division · Criminal Appellate Jurisdiction
The State v Chunnu Mural and others
Death Reference 50/2019 · Decided 6 July 2026
The Nari-o-Shishu Nirjatan Daman Tribunal, Shariatpur sentenced four accused to death under section 9(3) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 for the rape and killing of a 13-year-old girl whose decomposed body was found in 2017. No one was named in the FIR and the prosecution witnesses, including the parents, turned in favour of the accused. Three accused had confessed under section 164 of the Code. The High Court Division held that the witnesses' unnatural evidence could neither implicate nor exempt the accused, and that the confessions were true and voluntary despite the Magistrate's failure to certify them. Two accused, one of whom confessed to rape and stabbing and the other of whom absconded, were guilty under section 9(3) on the confessions with corroboration from the autopsy. The other two had made exculpatory confessions and were not abettors, so their appeal and Rule succeeded and they were acquitted. The death reference was rejected and the two remaining death sentences were commuted to imprisonment for life.
- Q1
Whether confessions are rendered unreliable because the recording Magistrate failed to certify them under section 364(2) of the Code, the Investigating Officer was in the court premises, or no sign of rape was found on a decomposed body.
- Q2
Whether exculpatory confessions could make their makers abettors under section 30 of the Ain, 2000, and whether co-accused confessions with some corroboration can sustain conviction.
- Q3
Whether the death sentences under section 9(3) should be confirmed.
- An accused not named in the FIR may be convicted where the informant described grounds of suspicion and the investigation produced evidence against him; absence from the FIR form is no ground of innocence.
- Witnesses who did not see the occurrence cannot exempt the accused merely by saying they were not involved, and evidence contradicting their section 161 statements can neither implicate nor exempt the accused.
- A Magistrate's failure to certify a confession under section 364(2) of the Code shows negligence that may attract disciplinary action but does not by itself make an otherwise true and voluntary confession unreliable; nor does the Investigating Officer's mere presence in the court premises.
- Under 74 DLR (AD) 11, a co-accused's confession may be used against other accused where there is some direct or circumstantial corroboration, and the absence of sperm in a decomposed body does not negate rape.
- An accused who stood guard and one who merely invited the victim to her house, whose confessions were exculpatory, could not be treated as abettors under section 30 and were acquitted.
- Section 9(3) requires rape by more than one person and death resulting from the rape; killing the victim to prevent disclosure after joint rape satisfied it, but the death sentences were commuted to life imprisonment.
Such lapses, however, prove the utmost negligence and inefficiency of the recording Magistrate definitely making him liable to be punished under Service Rules for professional misconduct but it does not make the confessions unreliable.
In the court’s own words.
Death Reference 50/2019, as published by the Supreme Court of Bangladesh. 42 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION (CRIMINAL APPELLATE JURISDICTION)
Present:
3Mr. Justice Bhishmadev Chakrabortty
And
4Mr. Justice K.M. Rasheduzzaman Raja Death Reference No. 50 of 2019
5The State …petitioner -Versus- Chunnu Mural and others
…condemned-prisoners
with
6Criminal Appeal No. 5243 of 2019
7Selim Chowkider …convict-appellant -Versus- The State …respondent
with
8Criminal Miscellaneous No. 14480 of 2020
9Chunnu Mural and 2 others …convict-applicants -Versus- The State …respondent
with
10Jail Appeal No. 129 of 2019
11Swapna Begum …convict-appellant -Versus- The State …respondent
with
12Jail Appeal No. 130 of 2019
13Selim Chowkider …convict-appellant -Versus- The State …respondent
with
14Jail Appeal No. 131 of 2019
15Chunnu Mural …convict-appellant
16-Versus-
17The State …respondent
and
18Jail Appeal No. 132 of 2019
19Nuru Mural …convict-appellant
20-Versus-
21The State …respondent
22Mr. Syed Ejaz Kabir with Mr. Mohammad Imam
23Hossain (Tarek), Deputy Attorney Generals with
24Ms. Mahbuba Taslim Akhi, Mr. Mustafizur
25Rahman Mukul, Mr. Ashraful Alam, Ms. Rohani
26Siddiqua, Mr. Al-Amin Siddiqui, Assistant
27Attorney Generals
…for the State
(In the reference and respondents in the appeals)
28Mr. S.M. Shahjahan, Senior Advocate with
29Mrs. Jahanara Sarker and
30Mrs. Nargish Akter, Advocates
…for the condemned prisoners
(appellants and petitioners in the miscellaneous case)
31Heard on: 01.07.2026 and 05.07.2026
32Judgment on 06.07.2026 K.M. Rasheduzzaman Raja, J:
33This reference under section 374 of the Code of Criminal Procedure, hereinafter ‘the Code’, is for confirmation of death
sentence awarded upon condemned prisoners Chunnu Mural, Nuru Mural, Selim Chowkider and Swapna Begum by the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Shariatpur, hereinafter ‘the Tribunal’ by the judgment and order dated 07.05.2019 passed in Nari-o-Shishu Nirjatan Case No. 73 of 2018 corresponding to G.R. No. 137 of 2017 arising out of Jajira P.S. Case No. 13 dated 14.09.2017. The condemnedprisoner Md. Selim Chowkider has filed Criminal Appeal No. 5243 of 2019 and with convicts Nuru Mural, Chunnu Mural and Swapna Begum filed Criminal Miscellaneous Case No. 14480 of 2020 and the convicts also filed Jail Appeal Nos. 129 of 2019, 130 of 2019, 131 of 2019 and 132 of 2019. Since all the matters arose out of the same judgment and order therefore, hearing all the matters together we are going to dispose of the same by this judgment.
34The prosecution case, in short, is that 13 years old deceased Rima Akter, daughter of P.W. 1 Elias Chokdar, had habit of chewing betel leaf and used to visit the house of condemned prisoner neighbour Swapna Begum, 2nd wife of condemned prisoner Chunnu Mural, to have betel leaf. Rima
Akter while passing the house of condemned prisoner Nuru Mural occasionally witnessed anti-social activities of Nuru Mural and his cohorts in his house. Therefore, they became angry with deceased Rima Akter. P.W. 1 Elias Chokdar upon found his daughter Rima Akter absent at 7.00 p.m. on 11.09.2017 started looking for her in the houses of his relatives but found her nowhere. Subsequently, the dead body of Rima Akter with decomposing stink was found at 4.30 p.m. on 13.09.2017 in the Viti (vacant homestead) of Khukan Hawlader at Nawdoba Mujib Hawladerkandi village. A gamcha was found fastening around the neck of Rima Akter and stab injuries were also found on her chest and abdominal area causing evisceration. Upon found the decomposing state of the dead body P.W. 1 Md. Elias Chokdar, the informant, doubted that his daughter was killed within the period of 7.00 p.m. on 11.09.2017 to 5.00 a.m. on 12.09.2017. On such occurrence P.W. 1 Md. Elias Chokdar lodged FIR with Jajira Police Station, Shariatpur. Upon such FIR Jajira Police Station Case No. 13 dated 14.09.2017 was registered.
35Police submitted a charge-sheet against the accused persons along with a supplementary charge sheet under sections 9(3) and 30 of the Nari o Shishu Nirjatan Daman Ain, 2000, herein after ‘the Ain’, read with sections 302, 201 and 34 of the Penal Code. Learned Magistrate receiving the charge-sheets sent the case record to the Nari-o-Shishu Nirjatan Daman Tribunal, Shariatpur for holding trial.
36Learned Judge of the Tribunal took cognizance of the offence and started Nari-o-Shishu Case No. 73 of 2018. Learned Judge of the Tribunal framed charges against the condemned prisoners under sections 9(3) and 30 of the Ain read with sections 302, 201 and 34 of the Penal Code and explained and read over the same before the accused persons to which they pleaded not guilty and demanded the trial.
37The prosecution adduced 14 witnesses to bring home the charge brought against the accused persons and after recording of the evidences of the witnesses of the prosecution the learned Judge of the Tribunal examined the accused persons under section 342 of the Code whereupon they again claimed their
innocence and expressed their desire not to adduce any counter evidence.
38The defence case as transpires from the trend of crossexamination of the prosecution witnesses (P.Ws.) is nothing but mere innocence. No specific defence case has been curved out by the condemned prisoners at the trial.
39On consideration of the depositions of the witnesses of the prosecution and the relevant submissions of the both sides learned Judge of the Tribunal awarded death sentence upon the condemned prisoners by the impugned judgment and order and referred the same to this Division for confirmation of the sentence.
40Mr. Syed Ejaz Kabir, learned Deputy Attorney General, appearing for the State has taken us through the materials on record and submits that the prosecution has adduced 14 witnesses before the Tribunal to prove the case. There are also confessional statements of condemned prisoners Chunnu Mural, Nuru Mural and Swapna Begum recorded under section 164 of the Code by the Magistrate. The learned recording Magistrate P.W. 12 Sheikh Md. Mujahid-ul-Islam has also appeared before
the court and deposed in support of recording of the confessional statements of the accused persons. Although the prosecution witnesses did not depose up to expectation due to fear of the cohorts of the accused persons but since the confessional statements of the three accused persons were voluntary and true and those are corroborative to each other, therefore, the Judge of the Tribunal relied on those confessions along with other circumstantial evidence in awarding conviction and sentence upon the condemned prisoners. The condemned prisoners were duly examined under section 342 of the Code after recording of evidence of the witnesses of the prosecution. The evidence on record and the confessions of the condemned prisoners support that the accused persons abetted each other to commit rape on the deceased resulting in her subsequent death. Since the prosecution has succeeded in proving the charge brought against the condemned prisoners by evidence, both direct and circumstantial, therefore, the reference should be accepted, the appeals filed by the condemned prisoners should be dismissed and the Rule issued in the miscellaneous case should be discharged. Mr. Kabir has relied on the principles laid
41down in the cases of Shukur Ali (Md) and another Vs. State, 74 DLR (AD) 11; State and another Vs. Abdul Kader @ Mobile Kader and others, 67 DLR (AD) 6; Abul Kashem & another Vs. The State, 42 DLR 378; State Vs. Md Zakir Hossain, 23 BLC (AD) 150; Abdul Hakim @ Henju and others Vs. State, 8 BLC 362; Abdul Mannan Bhuiyan Vs. The State, 7 ADC 427 and The State Vs. Md Moinul Haque and others, 21 BLD (HCD)
42On the other hand, Mr. S.M. Shahjahan, learned Senior Advocate, opposes the reference and supports the appeals and Rules issued in the miscellaneous case submitting that the accused were not FIR named. There is no eyewitness of the occurrence. The confessional statements of the accused persons were not recorded by the learned Magistrate following the provisions of law. Confessions of the accused persons are not evidence under section 3 of the Evidence Act. Confessions of Selim Chowkider and Swapna Begum are exculpatory and, therefore, relying on those confessions they cannot be treated as abettors under section 30 of the Ain. The condemned prisoners have retracted their confessions within the shortest possible
time. Such confession can no way be the basis of conviction and sentence. The Investigating Officer (I.O.) committed error in recording statements of the accused persons under section 161 of the Code making their confessions not reliable. Since, no sign of rape was found on the body of the deceased according to autopsy report, therefore, the confessions of the accused persons cannot be treated to be true. P.W. 13 Md. Shah Alam Khan, the I.O., has stated that he was present in the Court at the time of recording of confessions of the condemned prisoners and, therefore, those were not voluntary. Mr. Shahjahan relied on the ratios of the cases of Abdul Malik & ors. Vs. State, 36 DLR 275; Md. Rezaul Karim alias Rezaul Aalm Rikshawa Vs. The State, 23 BLD (HCD) 255; The State Vs. Md. Ali Kibria @ Shahjahan, 43 DLR 512; Lutfun Nahar Begum Vs. The State, 27 DLR (AD) 29 and The State Vs. Mukhtar Ali and another, 10 DLR 155.
43Let us examine the some and substances of the evidence of the witnesses of the prosecution and submissions of the learned Advocates of the both sides to determine the
sustainability of the conviction and sentence awarded by the learned Judge of the Tribunal upon the condemned prisoners.
44P.W. 1 Elias Chokdar, the informant, has deposed that victim Rima was his daughter. Upon found his daughter missing 14 months ago he started looking for her. From the rumour he came to know that a dead body was lying on the Viti of Hawlader and going there he found decomposed dead body of his daughter and became fainted. The local people recovered him and on the next day he lodged FIR with Police Station without mentioning anyone as the accused persons. Police visited the place of occurrence, seized alamot preparing a seizure list with his signaturer. He has marked the seizure list and the seized alamot as exhibits.
45In cross-examination he has stated that his daughter Rima Akter was unmarried. The FIR was not read over to him. He signed the FIR being instructed. He knows accused Nuru, Swapna and Chunnu but they are not involved with the occurrence and he has no allegation against them. His daughter used to live uncontrolled life a little bit and still now he does not
know who killed his daughter and how. He has further stated that he has no objection if the accused persons are acquitted.
46P.W. 2 Nargis Akter, mother of deceased Rima Akter, has deposed in the same way as her husband P.W. 1 has deposed. In cross-examination she has stated that her daughter had uncontrolled life style and they tried to make her understand. Her husband knows nothing about the occurrence of the case. She has stated that the accused persons are not involved with the killing of her daughter and she has no objection if they get acquittal.
47P.W. 3 Sikander Sheikh has deposed that one year ago he heard that Rima Akter was killed and her dead body was left in the Viti of Hawlader. He does not know who killed the deceased. In cross-examination he has stated that Chunnu, Nuru, Swapna and Selim are good people of the locality and there is no evidence regarding involvement of the accused persons with this killing.
48P.W. 4 Md. Tayem Bepary has deposed that the occurrence took place 14 months ago and Rima Akter was the victim. He came to know in the afternoon that a dead body was
found and he went to see the dead body. He does not know who killed the deceased. In cross-examination he has stated that the deceased was at the age of marriage and she used to live an uncontrolled life. He along with the parents of the deceased used to advice her to live modest life. There is no connection of missing or subsequent killing of the deceased with the accused persons. The accused persons are not involved with the occurrence.
49P.W. 5 Md. Isahak Chokdar has deposed that upon found the dead body of Rima Akter 12/13 months ago he informed the police. He does not know who killed the deceased. In crossexamination he has stated that several people appeared near the dead body but none of them suspected the accused persons, the condemned prisoners. The accused persons are good people of the locality. He never heard their involvement with the killing of the deceased.
50P.W. 6 Shukur Dhali has deposed that he knows nothing about this case. Rima Akter was missing and subsequently he came to know that her dead body was found in the field of Hawlader. In cross-examination he has stated that Rima had an
unruly life and did not live with modesty. She did not care anyone. He did not hear anything about involvement of the accused persons with the killing of the deceased. The accused persons have no bad record in the locality. The accused persons had no relation with deceased Rima.
51P.W. 7 Shahin Fakir has deposed that hearing the dead body of Rima lying in the Viti of Hawlader he went there. Police appeared and held inquest over the dead body and prepared report with his signature. He has marked the inquest report and his signature thereon as exhibits. In crossexamination he has stated that the accused persons were good people but the deceased Rima was unruly. He never heard about involvement of the accused persons with the killing of deceased Rima.
52P.W. 8 Saleha was tendered but the defence declined to put her under cross-examination.
53P.W. 9 Md. Suruj Miah alias Suruj Khalifa has deposed that he knows nothing about the occurrence. The defence declined to put him under cross-examination.
54P.W. 10 Md. Mojibar Mollah has deposed that he knows the accused persons and came to know that the dead body of Rima was lying in the Viti of Hawlader and going there he saw the dead body. In cross-examination he has stated that Rima used to live a little bit unruly life. The accused persons are very good people and they are not involved with the occurrence.
55P.W. 11 Dr. Sheikh Md. Ehsanul Islam has deposed that he held autopsy on the dead body of Rima Akter on 13.09.2017. The dead body was decomposed partly. He kept the opinion pending for viscera report and prepared final report on 22.01.2018 upon receiving the viscera report opining that cause of death of the deceased was due to hemorrhage and shock as a result of cumulative effect of mentioned injuries which was antemortem and homicidial in nature. He has marked the post mortem report and his signatures thereon as exhibits. In crossexamination he has stated that there is no evidence about committing rape on the deceased or making any attempt of rape on her. He found three injuries on the dead body but could not determine the cause of death initially. No poison was found in
the viscera of the dead body. He has opined that the victim died as a result of cumulative effect of the said three injuries.
56P.W. 12 Sheikh Md. Mujahid-ul-Islam, the Additional Chief Judicial Magistrate, Shariatpur has deposed that he recorded statements of witness Jotysna Begum on 18.09.2017, confessions of accused Nuru Mural on 17.09.2017, accused Selim Chowkider on 16.09.2017 and accused Swapna Begum on 18.09.2017 under section 164 of the Code giving them sufficient time for deliberation. He put relevant questions as mentioned in column 6 of the form to the accused persons and he has recorded their voluntary confessions. He has marked the confessional statements and his signatures thereon as exhibits.
57In cross-examination he has stated that the accused persons voluntarily confessed before him. He read over their statements to them. But he did not give a note to that defect. He has however denied that the confessional statements were not made voluntarily. He found no injury mark on the body of the accused persons. He signed in the last page of the additional papers of the confessions although he did not sign in the first page. He did not give notes regarding reading over the
statements to the accused persons. He recorded the confessional statements of the accused persons inside his khas kamra (personal chamber) keeping the door closed. He has denied that police officer was standing on the door of his chamber when the statements of the accused persons were recorded.
58P.W. 13 P.S.I. Md. Shah Alam Khan, the 1st I.O., has deposed that the Officer-in-Charge entrusted him with the charge of investigation of the case on 14.09.2017. Receiving the charge of investigation, he visited the place of occurrence, prepared sketch-map with index, held inquest over the dead body and prepared a report in presence of the witnesses, sent the dead body for holding autopsy, collected the autopsy report, arrested accused Nuru Mural who along with his sister-in-law Swapna gave confessional statements. He arrested accused Selim who also gave confessional statements. He got statements of witness Jotysna recorded under section 164 of the Code. He handed over the charge of investigation after his order of transfer. He has marked the sketch-map with index, inquest report and his signatures thereon as exhibits. In crossexamination he has stated that he did not find any alamot of
rape on the body of deceased Rima. He did not get any information that deceased Rima used to live unrestrained life or mix with other male persons. He recorded statements of the accused persons under section 161 of the Code and, thereafter, forwarded them to the Magistrate for recording their statements under section 164 of the Code. When the learned Magistrate recorded statements of the accused he was present in court. He has denied that upon found no evidence against the accused persons he extracted confessional statements from the accused persons putting them under fear or submitted a charge-sheet against them being influenced by the informant.
59P.W. 14 Md. Nasir Uddin Sheikh, the 2nd I.O., has deposed that he received the charge of investigation on 25.12.2017. After investigation he submitted charge-sheet against the accused persons. In cross-examination he has stated that condemned prisoner Chunnu Mural did not give any confessional statement. There was no evidence in the inquest report that the deceased was raped. He did not try to match the DNA of the accused persons with that of the victim. He did not arrange any other medical examination to determine the
commission of rape on the deceased. He has denied that without having any material evidence he has submitted false chargesheet against the accused persons being influenced by the previous I.O.
60On perusal of the above depositions of the witnesses of the prosecution it appears that all of them have deposed supporting that the dead body of the deceased was found in the Viti of Hawlader. Although the prosecution witnesses did not see who killed the deceased i.e. no eyewitness but condemned prisoners Nuru Mural, Selim Chowkider and Swapna Begum made confessional statements before Magistrate P.W. 12 Sheikh Md. Mujahid-ul Islam.
61It appears in the FIR form that there none was named as accused. But in it’s content it has been asserted, among others, that the local wayward stalkers including accused Nuru Mural used to hang out in the house of accused Swapna Begum, 2nd wife of accused Chunnu Mural. Accused Swapna Begum used to call victim Rima to have betel leaf at her house. Accused Nuru Mural became angry on Rima as she witnessed their antisocial activities. Victim Rima was missing since 7.00 p.m. on
11-09-2017 and her decomposed dead body was recovered from the viti of Hawlader at around 4.30 p.m. on 13-09-2017. The informant doubted that the victim was killed between 7.00 p.m. on 11-09-2017 to 5.00 a.m on 12-05-2017.
62Although the accused are not FIR named but they are under suspect of the informant and the investigation ended in submission of charge-sheet against them. If the informant suspects someone to be involved with the occurrence describing his ground of suspicion in the FIR, then mere non-mentioning of his name in the column of the FIR cannot be treated to be less significant than mentioning his name in the FIR. Culpability of an accused not named in FIR, can be established upon found evidence against him in investigation. Therefore, it cannot be a ground of innocence of any charge-sheeted accused if his name is not found in the FIR form as an accused.
63The prosecution witnesses appear to have deviated from the prosecution case as described in the FIR lodged by P.W. 1 Elias Chokdar, father of the deceased. Curiously, the P.Ws., including father and mother of the deceased, are found to have indemnified the accused persons and maligned the victim
herself by casting aspersions on her character. The informant P.W. 1 Elias Chokdar and P.W. 2 Nargis Akter have stated that the accused persons were of good character and their daughter used to live unruly or wayward life. This aspersion on the character of the deceased cast by her parents cannot be their natural depositions. Till their depositions given before the Court after almost 1½ years of the occurrence, they never mentioned about the character either of their daughter or the accused persons at any stage of the investigation especially, when they were interrogated by the I.O.
64It is apparent in the statements of witnesses recorded under section 161 of the Code that none of the witnesses disclosed about the good character of the accused persons or bad character of the deceased. Such character assassination of a deceased by the witnesses reasonably indicates that they did not depose naturally in the Court. Rather, it can be sufficiently presumed that they have been gained over or biased in favour of the accused persons either for any material gains or out of fear. The witnesses who did not see the happening of the occurrence cannot exempt the accused persons from the culpability of their
offence just by saying that the accused did not commit the offence or they are not involved with the occurrence. Since the prosecution witnesses did not see who committed the offence, they also cannot say who did not commit it. Such embellished evidence of the P.Ws. being contradictory to their statements made under section 161 of the Code neither can implicate the accused nor can exempt them from the allegations brought against them in this case. Now, only the confessional statements and other circumstantial evidence are remaining there to decide whether the condemned prisoners have committed this heinous offence i.e. killing of the victim after committing rape on her.
65In the instant case condemned prisoner Chunnu Mural did not make any confession but he has been made kingpin by the confession makers co-accused in committing the offence. Let us examine the confessional statements of the condemned prisoners Nuru Mural, Selim Chowkider and Swapna Begum and the other circumstantial evidence to understand the innocence or guilt of the condemned prisoners.
66Condemned prisoner Nuru Mural was arrested at 17.10 hours on 16-09-2017, taken to Jajira P.S. at 18.10 hours on
16.09.2017 and sent to P.W. 12 Sheikh Md. Mujahi-ul-Islam, for recording his confession on 17.09.2017. It appears in the form of recording the confessional statement that the learned Magistrate P.W. 12 Sheikh Md. Mujahi-ul-Islam put the stipulated questions to him and, thereafter, he started recording his confession where he has stated, among others, that-
67Condemned prisoner Selim Chowkider was arrest at 17.10 hours on 24-09-2017, taken to Jajira P.S. at 11.20 hours on 25-09-2017 and produced before P.W. 12 Sheikh Md. Mujahid-ul Islam for recording his confession on 25-09-2017. On perusal of the form of recording confession it appears that the learned Magistrate put the stipulated questions to the accused person and, thereafter, started recording his confession as well. Selim Chowkider has stated, among others, that-
Condemned prisoner Swapna Begum was arrested at 16.35 hours on 17-09-2017, taken to Jajira P.S. at 17.30 on 17.09.2017 and she was sent to P.W. 12 Sheikh Md. Mujahid-ul Islam for recording her confession on 18.09.2017. It appears in the form of recording the confessional statement that the relevant questions were put to her and thereafter P.W. 12 started recording her statement. She has stated in her confession, among others, that-
68victim rest phone
phone
69All the confessing condemned prisoners have consistently stated that accused Nuru Mural and Chunnu Mural were involved with the offence of commission of rape on the victim followed by her killing. Out of them condemned prisoner Nuru Mural has stated that he committed rape on the victim at the viti of Hawlader where the dead body was found and he inflicted initial stab blow on the abdomen of the deceased at the instance of Chunnu Mural to subvert the imminent danger and condemned prisoner Chunnu Mural inflicted the subsequent stab blows on the victim. Convict Swapna Begum has described the sequence of involvement of Chunnu Mural with the
commission of rape followed by subsequently killing of the victim. She has also given a terrible picture of the character of the condemned prisoner Chunnu Mural, her 2nd husband, quite opposite to the accounts given by the P.Ws.
70Although Swapna Begum has suspected the involvement of convict Selim Chowkider in committing rape on the victim but Selim Chowkider did not implicate himself with the commission of offences either of rape or of killing in his confession and he has corroborated convict Nuru Mural as to committing rape on the victim by accused Chunnu Mural. We find no evidence on record in favour of such suspicion of Swapna Begum. The description of the occurrence as the condemned prisoner Nuru Mural has given appears to be natural. The confessions of the condemned prisoners Selim Chowkider and Swapna Begum although appear to be exculpatory but they have supported the involvement of accused Nuru Mural and Chunnu Mural with this heinous offence. Yet, let us determine the status of condemned prisoner Selim Chowkider and Swapna Begum on the basis of their respective confessions.
71In the case of State Vs. Zakir Hossain 23 BLC (AD) 150 their Lordships have ruled,
72“Only if it can be seen from his action that the
73confessing accused was at the scene reluctantly or
74under duress, and he distanced or dissociated
75himself from the occurrence by, for example,
76running away from the scene, then the confession
77may be termed exculpatory.”
78It appears in the principle laid down in the case of State Vs. Md. Zakir Hossain (supra) that the situation under which condemned prisoner Selim Chowkider was standing guard during the occurrence has saved him from being a maker of inculpatory confession and therefore, neither his confession can be termed inculpatory nor he can be treated as an abettor of the offence on the basis of such confession.
79On the other hand, condemned prisoner Swapna Begum was not at home when such heinous offence was taking place at her house. Only by inviting the deceased to her house for having betel leaf without sensing the diabolic design of her husband Chunnu Mural, she cannot throw herself in the arena of
abetment. So, we find no substantial evidence to treat convict Selim Chowkider and Swapna Begum as the abettors of committing offences under section 11(Ka) of the Ain, 2000.
80Now, let us determine whether the Magistrate properly recorded the confessions of the condemned prisoners or any of his unjust action made the confessions unreliable. Although P.W. 12 Sheikh Md. Mujahid-ul-Islam has stated in crossexamination that he did not certify the voluntariness and truth of the confessions and he did not give notes about reading over the statements before the accused after recording their confessions but on perusal of the forms whereupon the confessions have been recorded it appears that the learned Magistrate has put the other prescribed questions to them before recording their confessions.
81None of the condemned prisoners were taken in police remand before producing them for recording their confessions. They were found to be produced before the Magistrate within 24 hours since their arrest. It is not unusual that while interrogating the accused if the I.O. finds any confession or admission in the statement of the accused then he send the
accused to the Magistrate for recording his confessions. So, mere recording of statements of the accused by the I.O. under section 161 of the Code similar to the confession does not reduce the value of the confession recorded by the Magistrate under section 164 of the Code making it unreliable.
82P.W. 13 P.S.I. Md. Shah Alam Khan has stated that he was in Court after sending the accused persons for recording their confessions. But he did not state that he was in the chamber of the Magistrate where the confessions were being recorded. P.W. 12 Sheikh Md. Mujahid-ul-Islam has denied that I.O. was standing on the door of his chamber when he was recording the confessions of the accused.
83The I.O. may be remaining in any part of the precinct of the Court after producing the accused before the Magistrate for recording his confession. If the I.O. or any other police officer are not found within the sight of the accused while giving confession or after recording his confession if the accused is not handed over to police again then mere presence of I.O. in the Court premises at the time of recording confession of the
accused does not mean that the accused gives confession out of fear or under duress.
84It is admitted that neither in the post-mortem report nor in the inquest report, it has been directly stated that the I.O. or examining doctor found any sign of rape on the deceased but it has been mentioned in the inquest report, Ext.-11, that some red colour liquid were coming out from the vulva of the deceased. Mr. Shahjahan submits that such liquid substance can be produced for menstruation or, he has candidly submitted, it may be a result of some sort of injury. But in a decomposed body the menstrual liquids will not likely to come out. Moreover, menstrual construction as Mr. Shajahan has given is not entertainable on the ground that in such state of a girl the perpetrators are not likely to be engaged.
85Although there are some negligence on part of the I.O. in determining the fact of commission of rape such as; obtaining DNA report, but since the confessions support that condemned prisoners Chunnu Mural and Nuru Mural committed rape on the victim, therefore, it can reasonably be presumed that emission of reddish liquid from the vulva of the deceased is nothing but
the result of causing injury thereto which may be caused for committing rape. No other cause for or motive of killing the victim, a minor girl, is found in the case and the defence also did not make out any specific case of their innocence.
86In post-report, Ext.-4, it has been mentioned that no sperm was found in the vaginal swab of the deceased. But it is not clear whether the sperm should be present in a halfdecomposed body. However, multiple injuries were found on the dead body of the deceased and P.W.11 Dr. Sheikh Md. Ehsanul Islam has opined that the cause of death was due to hemorrhage and shock as a result of cumulative effect of mentioned injuries which was antemortem and homicidal in nature. In the case of The State Vs. Md. Moinul Haque and others 21 BLD 465 this Division held,
“In order to constitute rape mere penetration
in the membranous passage for channel
leading from uterus to the vulva is sufficient
and presence of spermatoza or even injuries
or marks of violence or tearing of hymen is
not at all necessary to prove rape.”
87In the instant case, the condemned prisoner Selim Chowkider and Swapna Begum have corroborated the commission of rape on the deceased by condemned prisoners Nuru Mural and Chunnu Mural in their confessions. Nuru Mrual himself has given the inculpatory confession. It is not found to be believable that those confessions were extracted from them by putting under duress or fear as the makers of the confessions were not taken in police remand and they were produced before the Magistrate within the stipulated period. Therefore, the mere absence of sperm in a decomposed body cannot absolve condemned prisoners Nuru Mural and Chunnu Mural of the offence for which they have been charged in this case.
88Although the condemned prisoners retracted their confessions almost after 3 months of recording of the confessions but the language of retractions are found to be almost similar which lead us to hold that those were not their spontaneous retractions. In retractions it has been mentioned that the accused persons were arrested before the date of their arrest. But there is no substantial evidence in support of such date of arrest. Moreover, the facts disclosed in confessions got
support in investigation. As such, we are unable to entertain the retractions of the accused persons.
89Now, the question appears; whether in presence of all the above mentioned positive elements in treating the confessions of the condemned prisoners to be voluntary and true should it be discarded terming to be unreliable only on the ground that the recording Magistrate did not certify the same to be voluntary and true? Let us look for the answer.
90It has been mentioned in section 364(2) of the Code that after recording of confession in his presence the Magistrate shall certify under his own hand that the record contains a full and true account of the statements made by the accused. This certification is apparently mandatory. But it has not been mentioned in anywhere of section 364 of the Code that for any lapses on part of the recording Magistrate in certifying the statements to be full and true, should be discarded. Such lapses, however, prove the utmost negligence and inefficiency of the recording Magistrate definitely making him liable to be punished under Service Rules for professional misconduct but it does not make the confessions unreliable. However, in this
ominous time when the wayward stalkers have been stomping around the society with their conceit after committing such a heinous offence and showing thump to legal consequence of their misdeeds and adolescent girls like the victim are becoming their prey now and then; mere non-sense negligence of a Magistrate in performing his entrusted work under section 364(2) of the Code cannot be a ground of discarding the confessions of accused if those are found to be otherwise true and voluntary.
91We have already found no substances in the submissions of Mr. Shahjahan to the effect that the confessions of the condemned prisoners cannot be reliable because of presence of the I.O. in the Court or absence of sing of rape on the dead body or non certification of the confessions by the recording Magistrate. Apart from that, nature of injuries as the condemned prisoner Nuru Mural has mentioned in his confessions supports the post-mortem report. The condemned prisoners have given such confessions just after being arrested and without going under any police remand. Therefore, we hold that the confessions were true and voluntary as well. Now, let us
examine whether such confessions of the co-accused can be basis of conviction of the condemned prisoner Nuru Mural and Chonnu Mural.
92In the case of Shukur Ali Vs. State 74 DLR (AD) 11 wherein their Lordships ruled hereunder—
“In the light of the facts and circumstances of the
present case we are of the view that confessional
statement of a co-accused can be used for the
purpose of crime control against other accused
persons even if there is a little bit of corroboration
of the confessional statement by any sort of
evidence either direct of circumstantial.”
93So, it appears that the confessional statements of the coaccused can be used for conviction of the other co-accused if there exists a little bit of corroboration by direct or circumstantial evidence. Now let us examine how the confessions of the condemned prisoners have been corroborated.
94We have found consistency between the confessional statements and autopsy report of the deceased in respect of the
injuries found on the dead body. Condemned prisoner Chunnu Mural was absconding since after the occurrence and he was arrested on 30.05.2018 from Kalkini under Madaripur District i.e. another district by the RAB. Such arrest took place after 9 months of the occurrence. Accused Nuru Mural was also arrested after 1 month of lodging of the FIR. Condemned prisoner Chunnu Mural could not explain as to his absence either while putting the prosecution witnesses under crossexamination or at the time of his examination under section 342 of the Code. This is a strong circumstance of connecting the responsibility of accused Chunnu Mural with the commission of rape and subsequent killing of the deceased. On the other hand, accused Nuru Mural has implicated himself in the commission of the offence in his confession. His confession has been corroborated by the inquest and post-mortem report. These are the circumstances which can be safely presumed to be corroborative to the commission of offence as disclosed in the confessions of the co-accused. Therefore, we find no infirmity of law in finding condemned prisoners Chunnu Mural and Nuru
95Mural guilty under section 9(3) of the Ain relying on such confessions.
96It is, however, found in the form of examination of the convict prisoners under section 342 of the Code that the confessional statements were not brought to the notice of the condemned prisoners. But they were found present before the Court during recording of evidence of the prosecution witnesses and the evidence were explained and read over before them again during their examination under section 342 of the Code whereupon they claimed their innocence. In the case of Mezanur Rahman Vs. State 2 BLC (AD) 27 it has been held—
“The learned Judges noticed that although
the learned Sessions Judge did not mention
anything about the confessional statements
at the time of examination of the accused as
aforesaid, they (the accused), in whose
presence the evidence was recorded, in their
reply stated that the confessions were
obtained from them by the police by torture
and inducement. They were thus aware of
their confessional statements which they had
claimed to be involuntary and thus the
omission on the part of the learned Sessions
Judge to draw their attention to the
confessional statements had neither caused
any prejudice to them nor vitiated the trial.”
97In the instant case the condemned prisoners were present when the Magistrate P.W.11 Shiekh Md. Mujahid-ul-Islam was examined by their Advocate. So, they were very much aware of their confessions. Therefore, the omission of the learned Judge of the Tribunal to bring the confessional statements to the notice of the condemned prisoners did not led their conviction and sentence to jeopardy. Now, let us examine whether the killing of the deceased is connected with the rape making it punishable under section 9(3) of the Ain, 2000. Section 9 of the Ain runs hereunder-
It appears in sub-section 3 of section 9 of the Ain that the ingredients of offence punishable under sub-section 3 of section 9 of the Ain are that; the victim should be raped by more than one person and she must die resulting in commission of rape.
98We have found that Nuru Mural and Chunnu Mural jointly committed rape on the deceased, 13 years old Rima Akter, and subsequently they killed her to subvert the danger. The confession makers have found that after commission of rape in the house of accused Swapna Begum, victim Rima Akter was found in a vulnerable condition. The descriptions of the confessions show that the victim was almost to die even if she was not killed by the accused persons. Condemned prisoners Nuru Mural and Chunnu Mural have killed the victim apprehending that she might survive and disclose their misdeeds. Therefore, the killing of the victim is nothing but the definite result of the rape which is punishable under section 9(3) of the Ain. We have already found that condemned prisoners Selim Chowkider and Swapna Begum cannot be treated to be abettors under section 30 of the Ain and, therefore, they should
be acquitted of the charge brought against them in the instant case.
99In this circumstance we hold that the reference should be rejected, Criminal Appeal No. 5243 of 2019 filed by condemned-prisoner Selim Chowkider is allowed. The Rule issued in Criminal Miscellaneous Case No. 14480 of 2020 so far it relates to Swapna Begum is made absolute but discharged for Chunnu Mural and Nuru Mural. Condemned prisoners Nuru Mural and Chunnu Mural have been languishing in the condemned cell for more than 7 years and they were also under custody for a certain period during trial. In this circumstance, we hold that justice would be best served if their sentence is commuted to life imprisonment.
100In the result, the death reference is rejected. The appeals of condemned prisoners Selim Chowkider is allowed and the Rule issued in Miscellaneous Case so far it relates to Swapna Begum is made absolute. They are acquitted of the charges brought against them. Let condemned prisoners Selim Chowkider and Swapna Begum be set at liberty if not wanted in connection with any other case. The Jail Appeal Nos. 129 of
2019, 130 of 2019, 131 of 2019 and 132 of 2019 are disposed of. The death sentence awarded upon condemned prisoners Chunnu Mural and Nuru Mural is commuted to imprisonment for lifer. Let condemned prisoners Chunnu Mural and Nuru Mural be shifted to general cell from the condemned cell immediately.
Communicate the judgment and order and transmit the
101records of the Tribunal. Bhishmadev Chakrabortty, J:
I agree
102Shohel ABO
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