1969 P Cr (PLP)

8. P. W. 5 Jarina Khatun and P. W. 6 Raitun Nessa have testified that having heard cries from the house of Nuruddin and Fakir Chand they went to Nuruddin's house and found Amir Hussain standing in bent position with his hands pressed on his belly and Milan Bibi standing on her hut. Amir Hussain told them that Chand Mia had stabbed him. In her cross -examination P. W. 6 stated that the Daroga compelled her to come to depose in Court.

9. The evidence of P. W. 7 Nur Hossain and his sister P. W. 8 Kohinoor Begum is that on hearing cries from the east of Fakir Chand's house they rushed there and found Amir Hussain with bleeding wounds in the belly, and Amir Hussain told them that Chand Mia had stabbed him.

10. P. W. 9 is Akliman Nessa, the wife of Nuruddin and the elder sister of Amir Hussain. She has deposed that the accused used to visit Milan Bibi and that at 9 or on 9‑30 p.m. on the date of occurrence she heard cries of Amir Hussain and came out. Amir Hussain was found standing in bent position and he told her that Chand Mia had stabbed him. In her cross‑examination, this witness stated that her brother Ali Hossain recapitulated her memory about the incident. In answer to a question put by the Court, she told that Milan Bibi is a woman of loose character.

11. P. W. 11 Jamir Ali who was tendered by the prosecution has stated in his cross‑examination that he heard that accused Chand Mia and Milan Bibi are brother and sister.

12. P. W. 2 Mr. A. S. M. Nurul Islam, Magistrate, 1st Class, Narayanganj recorded the confessional statement of the accused Exh.

1. His evidence shows that the accused was produced before him on 6‑4‑65 at 12 noon whereupon he gave due caution and allowed time for reflection during which period he was kept in his chamber under his orderly away from the view of hearing of any police officer. He again cautioned the accused but the latter offered to make a statement and he recorded the confessional statement. He denied suggestion that the accused complained to him that he was seriously beaten by the police.

13. P. W. 3 Dr. Shamsul Islam Bhuiya admitted Amir Hussain into the Victoria Hospital on 4th April 1965 at 11‑30 p.m. with two injuries on his person. One of which was a punctured wound in the epigastric region of anterior aspect of upper abdomen in consequence of which part of the stomach and greater omentum were bulging through the wound. The omentum and the stomach were found perforate. The other one was incised wound on the right fourth inter‑costal space, near the sternal border. The first injury was grievous in nature while the second simple. It has come to light in his evidence that the patient was in the hospital from 4‑4‑65 to 9‑5‑65 and he was discharged on 9‑5‑65.

14. P. W. 12 S. I. Abdul Latif is the investigating officer. After completing investigation he submitted charge‑sheet against the accused.

15. Mr. Abdul Hamid, learned Advocate for the appellant has urged that the learned Additional Sessions Judge has based the conviction of the appellant solely on the confessional statement, Exh. 1 and that a confession by itself cannot form the basis of a conviction. There is no doubt that this confession was retracted by the accused inasmuch as, he pleaded not guilty to the charge levelled against him and eventually challenged the confession as having been obtained by torture by the police. In support of his contention he was referred to certain decisions.

16. In the case of Sabjannessa Bibi and another v. The State ((1) 9 D L R 473) a Division Bench of this Court observed that it is not safe to act upon a recorded confession without corroboration. In the case of Asgar and others v. The State (P L D 1958 Dacca 75) a Division Bench of this Court made the following observations :‑ "So far as the appellant Debor is concerned, we need only mention that in addition to the facts that we have already set out earlier in this judgment, there was the added circumstances against this appellant that he had made a judicial confession which he subsequently retracted. The learned Sessions Judge has, in our opinion, rightly directed the jury that this retracted confession should not be made the basis of the conviction of the said appellant unless it is corroborated in some material particular by other evidence and its value as against the other co‑accused was almost nil".

17. In Joygun Bibi v. State (P L D 1960 S C 313), it was observed that :‑ "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 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."

18. In the case of Abdus Shukur v. The State (15 D L R 147), it was held by a Division Bench of this Court that a retracted confession is prima facie a confession which, as to its voluntary character or truth or both, if challenged by its maker, requires independent and reliable evidence to support it before it is accepted or acted upon. The latest and the most authoritative decision on the question as to whether conviction can be based solely on the retracted confession of an accused is the case of The State v. Minhum alias Gul Hassan (P L D 1964 S C 813). In this case, their Lordships of the Supreme Court observed :‑ "As for the confession the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra judicial, could legally be taken into consider ation against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against the maker himself his confession whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement." The correct proposition of law that holds the field now is that retracted confession, whether judicial or extra judicial can be the sole basis of conviction of the maker of the confession himself.

19. The trial Court has found the confessional statement to be voluntary and correct. It has been pointed out by Mr. Abdul Hamid that in his statement under section 342, Cr. P. C. the appellant stated that he was beaten in the thana and was threatened that if he denied, he would be taken back to the thana and beaten there and that he did not remember what he said out of fear. This has been negatived by P. W. 2 Mr. A. S. M. Nurul Islam, Magistrate, 1st Class who recorded the confessional statement. He emphetically denied the suggestion that the accused complained to him that he was mercilessly beaten by police. It appears from the record that sufficient cautions were given by the Magistrate before recording the confessional statement. He told the accused that he was not a police officer but was a Magistrate, that the accused was not bound to make any confession and if he made once, it might be used against him and that he should not make any confession being tutored by any body. He further asked the accused whether he would tell the truth. The accused answered that he knew that the recording officer was a Magistrate and that he was not bound to make a confession and if he made one it might be used against him. The accused then affirmed that he has not tutored by any one and would say his say according to his will. He further assured the Magistrate that he would speak the truth. In these circumstances. I agree with the learned Additional Sessions Judge that the confession seas voluntary. As to the correctness of the confessional statement also I find little scope for doubt. The accused did not confess that he had illicit connection with Milan Bibi on the other hand, he alleged that P. W. 1 Amir Hussain wanted to have illicit relationship with Milan Bibi and to this he objected. Further his confessional statement is that he found on the night of occurrence at about 8 p. m. Amir Hussain on the bank of the tank close to Milan Bibi's house and when he asked him why he was there. Amir Hussain abused him and under circum stances he struck him with the knife which he had in his possession and that Amir Hussain then raised a cry and went inside the house. The very nature of the confession is clearly indicative of the fact that it is true and I find accordingly. According to the confessional statement, it is clear that the appellant acted on grave and sudden provocation and that is why his act comes within the mischief of section 335 of the Penal Code. Having regard to the confessional statement of the appellant the trial Court was inclined to disbelieve the testimony of Amir Hussain himself as to the background of the occurrence and I agree. Amir Hussain is a bachelor. It is not unlikely that he had overtures with Milan Bibi or that he was at least keen to establish illicit relationship with her but that does not absolve the appellant of his guilty. I am only to observe in this connection that it is not correct to say that there is no corroboration to the confessional statement P. Ws. 5, 6, 7, 8 and 9 have testified to the fact that Amir Hussain told them immediately after the occurrence that he was stabbed by appellant Chand Mia. This is in corroboration of the confessional statement of the accused. The essential part of the prosecution case is that the appellant stabbed Amir Hussain. The evidence of Amir Hussain and of the corroborative witnesses, viz. P, Ws. 5, 6, 7, 8 and 9 has established this fact. It has been rightly held by the trial Court that what the appellant did, was done under grave and sudden provocation. His act thus attracted the mischief of section 335 of the Penal Code.

20. Another contention raised by Mr. A. Hamid is that the conviction of the appellant under section 335 of the Penal. Code is illegal having regard to the fact that he was charged under section 307/34 of the Penal Code. In his submission such conviction is not maintainable in law. In support of his, contention he cited the case of Chotey v. Emperor ((1943) 49 Cr. L J 168). In that case the conviction under section 109 of the Penal Code for abetment of offences under section 324 of the Code when the accused had not been charged with such abetment but under section 304 only was held to be illegal. There was no discussion of the relevant provisions of law but the learned Single Judge who decided the case simply observed that the conviction of the accused under section 324/109 of the Penal Code was, in his view, illegal because he was not charged with abetment. In the case reported in 1960 Cr. L. J. 78 the Gwalior Bench of Madhya Pradesh observed that "as a general rule an accused person; cannot be convicted of an offence with which he is not charged subject to the exceptions contained in sections 237 and 238 of Criminal Procedure Code. Where the Magistrate had framed a charge under section 307, Penal Code against the accused without stating any material facts constituting the offence and on the same charge the trial Court convicted the accused under section 386, Penal Code it was held that the accused was really prejudiced by the error in the charge and the conviction was bad in law. This case has also no application to the facts of the present case as there was no error in the charge under section 307/34 as framed against the appellant in this case.

21. Section 237 of the Criminal Procedure Code provides that if the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section he may be convicted of the offence which is shown to have been committed, although he was not charged with it. This section is controlled by section 236 which shows that if the act or series of acts alleged against the accused is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with and tried for all or any of such offences. Under section 238 when a person is charged with an offence consisting of several particulars, a combination of some only which constitute a complete minor offence, and such combination is proved, he may be convicted of the minor offence though he was not charged with it. This section further provides that when a person is charged with an offence, he may be convicted of the minor offence, although he is not charged with it. The present case is covered by the provisions of this section. An offence under section 335 is a minor offence to one under section

307. In this case, facts have been proved which reduce the offence and the appellant could be legally convicted of the minor offence under section 335, Pakistan Penal Code. I do not find any illegality in his conviction under this section.

22. It appears from the records that the appellant has already suffered imprisonment for over two months. Consider ing the fact that the appellant acted on grave and sudden provocation, I think, ends of justice will be met by a sentence of imprisonment already undergone plus the fine of Rs. 50 as imposed on him.

23. Subject to the modification of sentence as indicated above, the appeal is dismissed. The appellant be discharged from his bail bond. The order as regards stay of realisation of fine is vacated. Appeal dismissed.