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Criminal Appeal No. 17-D of 1960, decided on 27th May1960.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 11th February 1960, in Appeal No. 81 of 1960).
-Voluntariness and truth of an and confession, if established, not affected by retraction-Confession cannot be ruled out of consideration against co-accused simply because it was retracted-Evidence Act (I of 1872), S. 30.
The retraction of a confession is a circumstance which has no bearing whatsoever upon the questions whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the con fession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequence of the accusation, is explicable fully by the proximity of those consequences, and need have no connection whatso ever with either its voluntary nature, or the truth of the facts stated.
The retraction of the confession is wholly immaterial once it is found that it was voluntary as well as true. That being the case, there is no reason why a retracted confession should not be taken into consideration against a co-accused.
Confession matter to be " taken into consideration " against co-accused-Does not have " the quality of evidence "-Co-accused cannot be convicted on " sole " basis of confession of fellow accused much less on retracted confession.
If there were no other evidence against a co-accused except the confession of an accused being jointly tried with him, then, the confession by itself being merely a matter to be taken into consideration, and not having the quality of evidence against the co-accused it could rightly be held in law that the con viction of the latter could not be sustained on the confession alone. The grounds for this conclusion would undoubtedly gain weight if the confession were also retracted.
Hossain, Advocate Supreme Court for Appellant. Nasiruddin Ahmad, Senior Advocate Supreme Court, Amicus A. S. Chowdhury, Advocate-General East Pakistan (Ruhu Islam, Advocate Supreme Court with him), instructed by Shahabuddin Ahmad, Attorney for Respondent.
Dates of hearing : 26th and 27th May 1960.
-This appeal by special leave granted to the appellant Joygun Bibi calls in question her conviction for abetting the murder of her husband Abdus Samad, committed by one Abdul Majid, who was jointly tried and convicted with her. Abdul Majid had been a domestic servant in the house for a period of about. ten months until a date about a week before the murder when he was dismissed by Abdus Samad. He was dismissed because Abdus Samad became suspicious of his relation with the appellant Joygun Bibi.
Briefly, the case for the prosecution is that after his dis missal, Abdul Majid continued to visit Joygun Bibi in the house during the absences of her husband, which were frequent and prolonged, owing to his preoccupation with some large Government contracts which he had undertaken. On the day preceding the murder, namely, the 4th of September 1959, Abdul Majid came to the house on three separate occasions i.e.,at about 4 p.m. again about at 7 p.m. and finally at about 10 or 11 p.m. On each occasion there was a contract between him and Joygun Bibi. Evidence to this effect was given by Abdul Munnaf, aged 14, a son of Abdus Samad by another wife, and by a maid-'servant Zohura, aged about 19. Both these witnesses also deposed that relation between Joygun Bibi and Abdul Maiid were quite unlike those of a house-mistress towards her.
The murder having been committed early on the morning of the 5th September 1959, Abdul Majid was arrested the next day. He produced from two other houses a bloodstained lungi and shirt, and he made disclosures and produced from the top of an almirah placed in the middle one of the three bedrooms of Abdus Samad's house, a razor case. The crime was evidently committed with a very sharp cutting instrument, for it seems that by one or possibly two strokes, a deep gash had been made in the throat of the murdered man measuring 8' x 1 J' and cut ting down to the spinal column. At a search of the compound immediately after the discovery of the murder, a razor was found towards one of the outer compound walls, which also was stained with blood. The evidence slows that Abdul Majid was arrested at 4 p.m. on the 6th September 1959. On the following day, Joygun Bibi he was made over to the Court, and made a full and clear con- v fession of his crime to a First Class Magistrate, Mr. K. M. State Rahman, before whom he had been produced at midday. The Magistrate allowed him three hours to reconsider his position,before commencing to hear and record his confession.
Briefly, the confession was to the effect that about 18 months before, he had joined service as a domestic servant in the house, and after about 7 or 8 months, he beg an to sleep inside the house in a room between the bed-room of Abdus Samad, and the women's bed-room in which Joygun Bibi slept with her sister Zainab Bibi, the children and later, Zohura, the maid-servant. In the course of time, intimacy commenced between Abdul Majid and Joygun Bibi and this went on until about a month before the murder, Joygun Bibi proposed to him that he should murder Abdus Samad on a day when he should return from his work with some large sum of money and that there after she would go away with him to some place like Chittagong or Barisal. However, seven days before the murder, Abdus Samad surprised him when he was talking privately with Joygun Bibi in her room at about 5-30 a.m. and drove him out of the house the same morning. The day was a Friday and on the following Sunday he visited the house and again on the follow ing Thursday and then on the following day he visited the house in the morning, again at 4 p.m. when Joygun Bibi gave him a razor with instructions to get it sharpened and finally at 11 o'clock at night, and this time Joygun Bibi asked him to hide himself in a store house attached to her bath room, saying that that night Abdus Samad was to be murdered. She asked him to remove his shoes and leave them near the road. Abdus Samad returning to the house late at night had a meal and then went to sleep. In the meantime as instructed by Joygun Bibi, Abdul Majid had put off the main electric switch on the ground floor so that all the lights went out and oil lamps had to be lit. Thereafter, Joygun Bibi kept careful watch until Abdus Samad had fallen asleep, and after an interval, she went into Abdus Samad's room. Coming out after a while, she left the door of the room open, and went to Abdul Majid and the two then entered the room. Before doing so, Joygun Bibi made a cut in the nylon netting of the door facing the roadway on the south side with the razor in order to give the impression that some one had entered the room from that side. (Such a cut was actually found). Then entering the room through another door, the two took their stations near the sleeping man and Abdul Majid delivered the first stroke of the razor on his neck and followed it with another. Abdus Samad got up holding his neck, which was cut to the spine, with his hands and at that Joygun Bibi ran towards her own room down the verandha, which was only a few feet in length. Abdus Samad followed her and as he came to the door of her room, she pushed him and he fell backwards, with his head in the doorway of the middle room and the rest of his body in the verandha. He died on the spot, and then Abdul Majid washed his hands in the bath roorg and threw away the razor. Joygun Bibi
asked him to take some money, but he did not wait, and ran away out of the house on the north side. He first went to his sister's house in Dacca and next he went away to Mirzapur, but on the following day he returned to Dacca and again went to his sister's house from where'he was arrested by the Police.
Scientific analysis was made of the blood on the garments pro duced by Abdul Majid, and it was found that that on the lungi was of human origin, but as to the blood on the shirt the origin could not be ascertained due to insufficiency of the material sent.
The conviction recorded by the Sessions Judge was based upon Abdul Majid's confession, supported by a very detailed statement made by the maid-servant Zohura. In the High Court, the learned Judges made a careful analysis of the circumstances attending the making of the confession, including the evidence given by the Magistrate who recorded it, and the record of the confession and came to the clear conclusion that it was voluntarily made, despite the allegation made at the Sessions trial for the first time that he . was severely beaten at the Police Station and told that he would be in danger if he did not say that he and Joygun Bibi had jointly committed the murder.
The learned Judges then went on to examine in detail the extent to which the confession was supported by circumstantial evidence and the probabilities of the case, as well as by the evidence of Zohura, and they came to the clear conclusion that " the retracted confession is corroborated in material particulars by overwhelming evidence of independent character".
Such was the confidence with which the learned Judges accepted this confession as .true that they observed, at the conclusion of their examination of the confession, that
" Even if the testimony of Zohura be not taken into con sideration, the retracted confession Ex. 3 along with other facts and circumstances is enough to condemn him. There is thus no escape for him."
But, when they came to consider the case against Joygun Bibi, and the question arose as to whether they should, as allowed by law, take into consideration against her the confession of her co-accused this is what the learned Judges said
" She (Le. Joygun Bibi) is named in the confession of Majid as the person who helped him to murder the deceased but as that confession has been retracted, it .is a recognised principle of law that it has practically no evidentiary value against the co-accused ".
They were thus obliged to examine the case against Joygun Bibi " solely on the evidence of P. W. 7 Zohura and other facts and circumstances of the case."
We are unable to support the proposition of law laid down by the learned Judges in this regard.' The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily
made, and on the further question whether it is true. The Joygun Bib fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached State as to whether the confession was voluntary, and if so, whether Cornelius, it was true, for to withdraw from a self-accusing statement in direct face of the consequence of the accusation, is expli cable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative, in declaring that the confession by itself was sufficient, taken with the other facts and circum stances, to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was 'found that it was voluntary as well as true. That being the case, no reason whatsoever can be found for the inability felt by, the learned Judges in taking the confession into consideration against the co-accused. It is true that if there were no other evidence against Joygun Bibi except the confession of Abdul Majid, then, the confession by itself being merely a matter C to be taken into consideration, and not having the quality of evidence against Joygun Bibi, it could rightly be held in law that her conviction could not be sustained on the confession alone. The grounds for this conclusion would undoubtedly gain weight if the confession were also retracted. But in the present case, Abdul Ma jid's confession is by no means the only material in the case to be taken into consideration against Joygun Bibi. As will be seen presently, the evidence of the maid-servant Zohura furnishes a very complete and detailed account of the movements and behaviour of Joygun Bibi on the night in question, and particularly at and after the time of the murder. Joygun Bibi has not offered any explanation in answer to the questions put to her on the basis of Zohura's evidence and Abdul Majid's confession as to her behaviour that night. She has been content to repeat that she is innocent and to suggest that the case has been fabricated against her by her husband's younger brother, Sattar.
Zohura's evidence is briefly to the effect that she had knowledge of Abdul Majid's presence in the house that night, and that Abdus Samad returned to the house at midnight or at 12-30 a.m. and was given his meal by Joygun Bibi's sister Zainab who also massaged Abdus Samad to put him to sleep. When Zainab returned to Joygun Bibi's room and reported that Abdus Samad was asleep, Joygun Bibi and Zainab again went to Abdus Samad's room. At this point, Zohura fell asleep, until she was aroused by the sound of running feet coming from the verandah and she heard the sound of something falling in the verandah and she also heard from the verandah the cry "Ma Go" meaning "O, my mother". Immediately after Joygun Bibi entered the room in great haste and closed the door from inside. She then pulled Zohura up by the hand and asked to be fanned. At that time, the electricity was off, and had been so since the time when late at night she had seen Abdul Majid coming out of Joygun Bibi's room. She continued to fan Joygun Bibi until she felt the necessity of going outside to verandah from which the sounds had come Joygun Bibi prevented her and asked her to go out by another door. She found her way through the middle room to the verandah and there she saw the dead body of Abdus Samad lying in the position already described. At that time, she also saw Abdul Majid in the
Verandah and Joygun Bibi, coming out of the room, led him away towards the north side of the house from which he later made Zohura was examined by the Police shortly after the crime was reported i.e. on the morning of the 5th September 1959.
Later, on the 9th September a statement by her was recorded by a Magistrate under section 164, Criminal Procedure Code. Later still, she gave evidence before the committing Magistrate. These statements have been used for the purpose of contradicting or of testing her veracity, and certain omissions had been found as well as certain matters in addition to those which she stated in her evidence. Thus, in the statement under section 164, Criminal Procedure Code she did not say that she saw Joygun Bibi leading Majid out of the house,but merely that as she came into the middle room, she saw Majid going towards the north of the house and just then Joygun Bibi came out of her room shouting O, my mother" thus giving the alarm, but in the committing Court, she said that when Majid was going out of the house from the north side, Joygun Bibi also went with Majid and closed the gate after he had left. Later, when she noticed that Zohura had been watching her, she at once raised an alarm. The difference between these two statements is clearly one of minor detail only. Again, in both the earlier statements she had said that upon waking up, she had seen Joygun Bibi and her sister Zainab coming running into the room. At the trial however, she said that only Joygun Bibi came into the room, and the reason seems to be obvious, viz. that Zainab who had been charged as an accused person in the case was discharged by the committing Magistrate. Again, in the statement under section 164, Cr.P. C. she had said that she awoke on hearing a scream, but before the committing Magistrate she did not mention any scream but only said that she heard the sound of running foot steps. At the trial, she said she was aroused by that sound,and heard also the sound of something falling in the verandah, and in addition, she heard a scream. Everything points to the statement at the trial being the most full and accurate of the three statements. The argu ment before the trial Court and the High Court as well as before us was that Zohura was a tutored witness whose entire evidence was the result of tutoring by the Police at the instance of Abdus Sattar, brother of the deceased Abdus Samad, who stood to gain by the killing of Abdus Samad. Abdus Sattar appeared as a witness at the trial and was subjected to lengthy cross-examination, in the course of which he denied all sugges tions that he bore any ill-will towards Abdus Samad. As for Zohura's evidence, bearing in mind that she was an illiterate girl, the possibility of her evidence being entirely false tutored must be ruled out of the account, for she was cross-examined at the trial at very great length, and it is Joygun Bibi impossible to conceive of her having undergone this test so successfully if her entire evidence was a fabrication. It is State impossible to disagree with the view formed by the trial Judge Cornelius, and the High Court that Zohura was a witness of the truth.
Her engagement as a maid-servant in the family, and her presence in the house on the night of the occurrence cannot be doubted, and she was therefore a perfectly natural witness of the occurrence. Circumstances are also shown which support the plea that she was awake during that night for long hours. The fact of oil lamps having been used that night was proved by the finding of the lanterns in the different rooms by the police. The discovery was also made that nothing was wrong with the electricity except that it was cut off at the main switch.
The evidence of Zohura supported by the confession of Abdul Majid which could legally be taken into consideration against Joygun Bibi, provided ample material to show that she was awake on the night in question and was moving about the house before and at the time when Abdus Samad was murdered, and tfiat her conduct thereafter was not that of an innocent woman making the sudden discovery that her husband had been murdered. The circumstance that she came running into the room and immediately closed the door when her husband fell down in the verandah, and said nothing about what had happened to him, but kept the servant girl Zohura busy fanning her and prevented her from going in the direction in which the body of her husband lay, all point clearly to her being privy to, and consequently an accomplice of the actual murderer Abdul Majid. The sharpening of the razor on that very day has been proved, and the discovery of the razor case in the middle room, establishes also that the murder was com mitted from inside the house, and this factor when taken with the evidence that Abdul Majid was seen in the house that night, and was seen also to have had contact with Joygun Bibi, clearly shows that the murder was committed from within the house and that it was done with the complicity of Joygun Bibi.
Accordingly, we find that she has been rightly convicted, and we dismiss her appeal.
A. H. Appeal dismissed.
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