MOBARAK HOSSAIN V. THE STATE — 3 BLD 329

Fact: Zillu, a servant of Bazlur Rahman committed theft in his house and had stolen gold ornaments and sold it away which was detected by Abdur Rouf and reported to Bazlur Rahman, who put pressure unon Zillu and he confessed to have stolen the gold ornaments and sold the same on mayment of TK 200/- and TK 160/- was realized form Zillu. Zillu become angry with Abdur Rouf  on the matter said disclosure , he falsely plea of witnessing football game at Aire playground he took Abdur Rouf From Barura Bazar and Murdered him.

After being arrested Zillu Named Mobarak as a co-accused before the magistrate, police give charge sheet the same.

Issue: Whether confession of co-accused without any independent corroboration can be basis of conviction or not?

Argument: The learned counsel of the appellant argues that the conviction of the appellant is not based on sufficient legal evidence and also contends that the conviction is mainly based on an extrajudicial confession alleged to have been made by the co-accused zillu which however, did not get any independent corroboration. He further argued all these are not sufficient to establish the guilt of the appellant conclusively.

On the other hand they had previous enmity with co-accused on a civil suit which is proved by certified copies of plaint of said suit.

Though in section 30 of the evidence Act 1872 says “The court may consider proved confession affecting person making it and others jointly under trial for same offence” the part need to be proved to convict appellant Mobarak was not proved nor did get any independent corroboration.

Moreover, section 144 illustration (b) force the court “that an accomplice is unworthy of credit, unless he is corroborated in material particulars”

Judgment: The appellant be set at liberty forthwith if not wanted in connection with any other matter. He is acquitted of the charge levelled against him.

Opinion: The prosecution could have argued section 133 of the evidence act “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.” To strong their case.

The court has established rule of law using his judicial insight.

(Discussed based on Evidence Act only)

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Rayhanul Islam

Legal activist & Practitioner - Editor - Researcher - Learner; A person who uses Logic & Law as his tool where psychology & Philosophy plays a role, he is on a quest to bring positive change to the legal sector of Bangladesh. He works as a lawyer and promotes legal knowledge and human right concept to the root level. More @ rayhan.lawhelpbd.com E-Mail: [email protected] or Call: +88 01711-386146

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