Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Penal Code, 1860 (BD)
Section/Order/Article/Rule/Regulation Head Note
Section 2

A public servant by definition in 1982 in the Penal Code will prospectively be deemed to be a public servant under Act II of 1947 when he commits an offence as public servant after the amendment of the Penal Code. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255. ....View Full Judgment

Section 21

Members of Union Parishad are “Public Servants” whom the Legislature has treated as a separate class of people’s representatives and provided additional disqualification for them.
Above all, members of a Union Parishad are ‘public servants’ within the meaning of section 21 of the Penal Code. The term Public Servants’ denotes some executive control over them and they are subject to disciplinary rules which are applicable to regular government servants. In view of these differences in respect of functions and duties, the Legislature thought it proper and expedient to treat them as a separate class of people’s representatives and has provided for the addition4 disqualification in question. Sheikh Abdus Sabur Vs. Returning Off leer 41 DLR (AD) 30. ....View Full Judgment

Section 21

read with
Bangladesh Biman Corporation Ordinance [XIX of 1977]
Section 27 —All officers and employees of the Corporation be deemed to be public servants within the meaning of section 21 of the Penal Code.
The Appellate Division held that section 27 of the Ordinance states that all officers and employees of the Corporation be deemed to be public servants within the meaning of section 21 of the Penal Code which acting the pursuance of the Ordinance or Regulations made thereunder, section 21 does not define public servants, but describes them only by enumeration, which itself is merely illustrative and by no means exhaustive. Persons designated ‘the public servants’ form a class by themselves as requiring special protection of the law. Persons who are the embodiment of law and authority naturally possess some privileges, and they are visited by the corresponding penalties if they deviate from the course prescribed to them by their duty. Section 21 may generally signify any person duly appointed and invested with authority to administer any part of the public duty imposed by law, whether it be judicial, ministerial or mixed.
Bangladesh Biman Airlines Limited and others -Vs.- Captain Mir Mazharul Huq and others (Civil) 12 ALR (AD) 122-126 ....View Full Judgment

Sections 21, 409, 477A & 462A

Section 110 of Banking Companies Act, 1991 also provides that a Mn2ger, Officer and other functionaries of the Banking Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent. Moreso, section 5 of Act II of 1947 speaks of the offences as mentioned in the schedule of the Act to be tried by Special Judges and in the schedule there are sections 403 and 477A of the Penal Code with which the accused has been charged for committing misconduct as a public servant. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255. ....View Full Judgment

Section 34, 109, 1208, 149, 302, 324

On behalf of the respondent Government affidavit - in - opposition was filed in which the allegations and submissions of the appellants were denied and it was asserted, inter alia, that the killing of the President of the country along with the members of his family and others including women and children at different places could not be said to be necessary for change of Government on the 20th August 1975, that the said killings were offences which no law can indemnify nor has indemnified, that no provision of the Constitution had made Indemnity Ordinance 1975 a part of the constitu­tion, that paragraphs 3 A and 18 of the Fourth schedule have not curtailed the power of Parliament of repeal any Act of Parliament or Ordinance made during the period between the 20th August, 1975 and the 9th April, 1979, that sever­al Ordinances made during the said peri­od have been repealed either by Ordinance or by Act of Parliament and that the indemnity Ordinance not being a part of the constitution but an ordinary Law, the repeal thereof does not attract article 142 of the constitution and that the Indemnity Ordinance has been Validly repealed by the Indemnity (Repeal) Act, 1996 which is valid and constitutional. Shahriar Rashid Khan ors. (1) vs Bangladesh ors. (1) (A.T.M. Afzal C J) (Civil) 2ADC 181 ....View Full Judgment

Section 34

Common intention– Once a reasonable ground exists to believe that two or more persons have conspired together to commit an offence, anything said, done or written by one of the conspirators in reference to the common intention after the common intention was entertained, is relevant against other, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it.
Principles of joint liability mere distance from the scene of crime cannot exclude culpability under Section 34 of the Penal Code in criminal sharing making out a certain measure of jointness in the commission of the act. (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386] ....View Full Judgment

Section 34

Amendment of section 34—isertion of the words “in furtherance of the common intention of all” after the word person’ and before the word “each” —its aim was to make the object of the section clear. Chand Mia Vs. State 42 DLR (AD) 3. ....View Full Judgment

Section 34

Common intention—Nature of injuries caused by different accused—The fact that some of the accused had caused fatal injuries and others caused minor injuries is immaterial if the act was done in furtherance of their common intention. The nature of injuries has nothing to do as the two accused are found to have shared the intention of other accused whose acts resulted in the death of the victim. State Vs. Montu 44 DLR (AD) 287. ....View Full Judgment

Section 34

Common intention—Pre—plan not essential ingredient—It is true in this case there was no pre—plan of the accused to kill the victim—their common intention to kill developed on the spot when they all simultaneously fell upon the victim as soon as he appeared on the scene. State Vs. Montu 44 DLR (AD) 287. ....View Full Judgment

Section 34

Common Intention —Unless the Court Is told what the exact words were used by the accused person it cannot act on the inference supplied by the witnesses—There is no evidence on record that the appellant Nos. 2—4 had an intention to cause the death of Nandalal. Amar Kumar Thakur Vs. State 40 DLR (AD) 147. ....View Full Judgment

Sections 34 and 109

The conviction of appellant Nos. 2—4 upon the evidence on record for the offence of murder with the application of section 34 or 109 Penal Code is not sustainable in law. Amar Kumar Thakur Vs. State 40 DLR (AD) 147. ....View Full Judgment

Sections 34 and 109

Constructive criminality—Section 149, like section 34, does not create and punish any substantive offence. These sections may be added to the charge of any substantive offence. Without the charge for any substantive offence, no charge under either of them can be conceived of. Abdus Samad Vs. State 44 DLR (AD) 233. ....View Full Judgment

Sections 34 and 109

Common intention and common object—Section 34 provides that when a criminal act is done by several persons in furtherance of their common intention each of them is liable for that act in the same manner as if it was done by him alone. Section 149 postulates an unlawful assembly and commission of an offence by any of its members in prosecution of the common object of such an assembly. Abdus Samad Vs. State 44 DLR (AD) 233. ....View Full Judgment

Sections 34 and 109

Scope of the two sections—Both sections deal with combination of persons to become punishable as sharers in an offence. Basis of a case under section 34 is the element of participation, and that of one under section 149 is membership of an unlawful assembly. The scope of the latter is wider than that of the former. Abdus Samad Vs. State 44 DLR (AD) 233. ....View Full Judgment

Section 34

The Penal Code, 1860
Section 34 read with
The Evidence Act, 1872
Section 10
The ‘common intention’ which is a constituent of proving an offence of criminal conspiracy is different from the one ‘common intention’ used in section 34 of the Penal Code. The expression ‘common intention’ used in section 10 of the Evidence Act signifies a common intention existing at the time when the thing was said, done or written by one of the conspirators but the ‘common intention’ referred to in section 34 is doing of separate acts similar or diverse, by several persons; if all are done in furtherance of a common intention. ... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Section 34

If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code–
The High Court Division on a misconception of law held that the prosecution has failed to prove the conspiracy. From the evidence as discussed above, if there be any doubt about the conspiracy, it would be difficult to find out a suitable case to prove such charge. The facts found from the materials on record, the barbarity revealed in the commission of the crime and the seriousness of nature of the offence perpetrated by the accused, it would be a travesty irony if the accused persons are not convicted on the charge of conspiracy. With due respect I am unable to endorse the majority opinion that the accused-respondents cannot be convicted on the charge of criminal conspiracy. The question of the benefit of law does not arise at all for simple reason that they were charged with and defended of the charge of criminal conspiracy. If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code but their conviction would be one under sections 120B read with 302, not under sections 302/34 of the Penal Code.... (Surendra Kumar Sinha, J) (Minority view). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Section 34

Although under section 34 of the Penal Code, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone, in awarding punishment each of such persons may be sentenced to death if there is direct evidence of their criminal act in furtherance ci the common intention of all. Khalil Mia vs State 4 BLC (AD) 223. ....View Full Judgment

Section 34 and 149

Common intention and common object—Participating in commission of offence— Membership of unlawful assembly- No charge lie except substantive offence—
Section 34 and 149 of the Penal Code, 1860 operate in two different situations in relation to commission of an offence. There can be no charge under section 34 and 149 of the Penal Code independent of any substantive offence. When several accuseds in furtherence of common intention participate in the commission of offence the charge against all of them will be under section 34 of the Penal Code together with the principal offence. On the other hand when five or more persons forming an unlawful assembly commit an offence animated with common object, every member of the assembly is equally liable for the offence under section 149 of the Penal Code read with the substantive offence. Abdus Samad Vs. The State- 44 DLR (AD) 233. ....View Full Judgment

Section 39 and 491

Section 39 of the Penal Code defines the term voluntary, means a willful omission to attend on the employer. Such willful omission must arise from something more than mere careless or negligence. It must be an omission of which the employee is conscious though he may not advert to the consequence. The legal contract must take shape of service for the helpless master or employer, for example, a curator of a lunatic, or a doctor and a nurse employed in the hospital, who may render himself liable to the penalty under this section if he agreeing to look after the patient, voluntarily deserts the patient or omits to attend the patient.
The complainant was not the one who is neither a lunatic nor a bodily incapable person or has been suffering from a disease for which he has entered into a contract with the appellant to take care of him and in that view of the matter, the offence alleged in the complaint does not attract section 491 of the Penal Code. .....Prof. Dr. Motior Rahman =VS= The State & another, (Criminal), 2016-[1 LM (AD) 587] ....View Full Judgment

Sections 45, 49, 53 & 57

Imprisonment for life–
The word `imprisonment' has been substituted for the word 'transportation' by Ordinance No.XLI of 1985. When framing the Penal Code, the draftsmen undoubtly intended this sentence to remain as one whereby those on whom it was passed should be sent over seas. This can be inferred if the history of the sentence is examined that when the first enacted, `transportation' means transportation beyond seas, although in India it has been substituted in 1955. Section 45 defines the word 'life' means 'the life of a human being unless the contrary appears from the context'. So if no contrary appears from the context 'life' means the life of a human being. The meaning of the words 'year' and 'month' have been defined in section 49, which means 'the year or the month is to be reckoned according to this British calendar'. Here the expression 'reckoned' is used which will be very significant for resolving the issue, and in calculating the period of sentence, a 'year' means its length i.e. about 365 days, 5 hours, 48 minutes and 51.6 seconds. To do away with the odd hours, the new style of calendar has adopted the average length is about 365 days and every fourth year of 366 days (24 Geo.11.c25). A sentence for one calendar month does not imply imprisonment for a fixed number of days. It may vary according to the month in which the sentence is passed. If the imprisonment began on the 30th of a month it will expire at midnight of the 29th of the following month, if the following month is not February, in which case it will expire on its last day whatever be the total number of days served by the prisoner. Section 53 of the Penal Code sets out five different punishments to which offenders are liable to suffer under the provisions of the Penal Code. The first sentence is death; the second is imprisonment for life; the third was omitted by the criminal law (Extinction of Discriminatory Privileges) Act, 1949; the fourth is imprisonment of rigorous or simple, the fifth is forfeiture of property and the sixth is fine. In the explanation it is provided that in the punishment of 'imprisonment for life' the 'imprisonment shall be rigorous'. So all imprisonment for life shall be rigorous imprisonment whether it is mentioned in the judgment or not. Reading sections 45 and 53 conjointly there is no doubt that a sentence of life imprisonment means a sentence of rigorous imprisonment for the whole of the remaining period of the convicted person's natural life. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513] ....View Full Judgment

Section 45 & 57

Meaning of life sentence–
The way it has been interpreted, the word “life” does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22.5 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial. .....Rokia Begum =VS= The State, (Criminal), 2016-[1 LM (AD) 571] ....View Full Judgment

Sections 54

Government has power to commute the sentence of death imposed to a prisoner under section 54 of the Penal Code. It provides "In every case in which sentence of death shall have been passed, the Government may, without consent of the offender, commute the punishment for other punishment provided by this Code.' In case of a life sentence offender, the government reserves the right to 'commute the punishment for imprisonment of either description for a term not exceeding twenty years' (S.55). The word 'twenty' has been substituted for the word 'fourteen' by Ordinance No.XLI of 1985. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513] ....View Full Judgment

Sections 57, 45, 49 and 53

The true meaning of the words ‘imprisonment for life’.
The Appellate Division held that the word ‘imprisonment’ has been substituted for the word ‘transportation’ by Ordinance No. XLI of 1985. When framing the Penal Code, the draftsmen undoubtly intended this sentence to remain as one whereby those on whom it was passed should be sent over seas. This can be inferred if the history of the sentence is examined that when the first enacted, ‘transportation’ means transportation beyond seas, although in India it has been substituted in 1955. Section 45 defines the word ‘life’ means ‘the life of a human being unless the contrary appears from the context’. So if no contrary appears from the context ‘life’ means the life of a human being. The meaning of the words ‘year’ and ‘month’ have been defined in section 49, which means ‘the year or the month is to be reckoned according to this British calendar’. Here the expression ‘reckoned’ is used which will be very significant for resolving the issue, and in calculating the period of sentence, a ‘year’ means its length i.e. about 365 days, 5 hours, 48 minutes and 51.6 seconds. To do away with the odd hours, the new style of calendar has adopted the average length is about 365 days and every fourth year of 366 days (24 Geo.11.c25). A sentence for one calendar month does not imply imprisonment for a fixed number of days. It may vary according to the month in which the sentence is passed. If the imprisonment began on the 30th of a month it will expire at midnight of the 29th of the following month, if the fol¬lowing month is not February, in which case it will expire on its last day whatever be the total number of days served by the prisoner. Section 53 of the Penal Code sets out five different punishments to which offenders are liable to suffer under the provisions of the Penal Code. The first sentence is death; the second is imprisonment for life; the third was omitted by the criminal law (Extinction of Discriminatory Privileges) Act, 1949; the fourth is imprisonment of rigorous or simple, the fifth is forfeiture of property and the sixth is fine. In the explanation it is provided that in the punishment of ‘imprisonment for life’ the ‘imprisonment shall be rigorous’. So all imprisonment for life shall be rigorous imprisonment whether it is mentioned in the judgment or not. Reading sections 45 and 53 conjointly there is no doubt that a sentence of life imprisonment means a sentence of rigorous imprisonment for the whole of the remaining period of the convicted person’s natural life.
Ataur Mridha @ Ataur -Vs.- The State (Criminal) 9 ALR (AD) 162-188 ....View Full Judgment

Section 84

The Penal Code, 1860
Section 84
The Evidence Act, 1872
Section 105
Accusedrespondent was of unsound mind from 22.6.1999 i.e. 8(eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused-respondent, at the time of commission of the offence on 13.10.1998– On scrutinizing the materials on record, specifically the Medical reports (Exhibits-A,B,C and D), submitted by the DWs we have already found that the defence has been able to prove that the accusedrespondent was of unsound mind from 22.6.1999 i.e. 8(eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused-respondent, at the time of commission of the offence on 13.10.1998, as required under section 84 of the Penal Code and section 105 of the Evidence Act by providing sufficient evidence, he cannot get any benefit under section 84 of the Penal Code nor under Chapter XXXIV of the Criminal Procedure Code. Plea of insanity or of unsoundness of mind of the accused-respondent being not prima facie found, the Court is not obligated to take recourse to the provisions as laid down in Chapter XXXIV of the Criminal Procedure Code.
The impugned judgment and order of acquittal passed by the High Court Division is hereby set aside and the judgment and order of conviction and sentence passed by the trial court is hereby affirmed. ...State =VS= Abu Hanifa @ Hanif Uddin, (Criminal), 2020 [9 LM (AD) 262] ....View Full Judgment

Sections 96-106

The right of private defence of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right is an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandoker Saiful Islam vs State 50 DLR (AD) 126 ....View Full Judgment

Section 100

Right of Private Defence
The evidence in the case must be such that the informant party was carrying on or was about to carry on an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandker Saiful Islam Vs. The State 6 BLT (AD)-84 ....View Full Judgment

Section 107, 109 and 120B

In order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy–
Offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place inpursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it.... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Section 107

Abetment— Sufficient materials necessary for framing charge of abetment—
No charge of abetment against any accused can be framed without sufficient incriminating materials on record. The State Vs. Khondaker Md. Moniruzzaman- 1, MLR (1996) (AD) 369. ....View Full Judgment

Section 107

Extent of penalty of abettor—can not be higher than the Principal accused—
The law clearly provides that the punishment to be awarded to the abettor must not be higher than that of the principal accused. Ashrafuddin Sekandar (Major Rtd.) and others Vs. The State— 3,MLR(1998) (AD) 164. ....View Full Judgment

Section 109

Abetment
Abatement is an offence under the Penal Code and a person may be charged for abetting an offence punishable under a special law even though the word ‘abetment may not be mentioned as an offence under the Special Act. Hussain Mohammad Ershad, former President Vs. The State, 14BLD(AD)178 ....View Full Judgment

Section 109

Offence of abetement–
In order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement there must be evidence that an act was abetted and that it was abetted by the person charged with. The act abetted must, moreover, amount to a crime, and in order to connect the abettor with the crime, it is not sufficient to prove that he had taken part in those steps of the transaction which are innocent, but it must also be proved that he had deliberately taken part in those steps of the transaction which constituted an offence. Section 109 may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by illegal omission.... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Section 109

Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9] ....View Full Judgment

Section 109

The Penal Code, 1860
Section 109 read with
The Prevention of Corruption Act, 1947
Section 5(1), 5(2)
The High Court Division has come to a finding that it appeared from the confession of co-accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin Al Mamun to ensure that the `JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Prevention of Corruption Act, 1947. The High Court Division has held that in the instant case, the issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the `JVA' . The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2017 (2)– [3 LM (AD) 177] ....View Full Judgment

Section 109, 161

The Anti-Corruption Commission Act, 2004
Section 27(1) read with
The Penal Code, 1860
Section 109, 161 read with
The Prevention of Corruption Act, 1947 Section 5(2)
Bail– The judgment in both the appeals are set aside but the appellate court, in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. ...Anti-Corruption Commission =VS= Barrister Mir Mohammad Helal Uddin, (Criminal), 2020 [9 LM (AD) 681] ....View Full Judgment

Section 120B

Criminal conspiracy– It is well settled that in order to prove a criminal conspiracy which is punishable under Section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference agreement between two or more persons to commit an offence.” (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386] ....View Full Judgment

Section 120B

Petitioner Mamun along with oth petitioners, held meeting and conspired blast bomb upon the Judges and others « the administration resulting in the murder the two Judges and petitioner Mamun bei one of them, his action comes within tK mischief of offence punishable und Section 120B of the Penal Code as well. Shaiakh Abdur Rahman & Ors Vs. The State 15 BLT (AD)-326 ....View Full Judgment

Section 120A and 120B

The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts–
The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable. ... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Section 147

The Sessions Judge found the appellants guilty of charge under section 147 PC and granted interim bail pending filing of appeal. The learned Judge by the impugned order summarily rejected the appeal petition on the ground that the appellants did not surrender before moving their petition of appeal and they being “fugitive from Law cannot get its protection.” Leave was granted to consider whether the impugned order was a just and proper order. Saidur Rahman Vs. State 40 DLR (AD) 281. ....View Full Judgment

Sections 147/447/427

Learned trial Judge came to the conclusion that was in fact trespass into the land of the complainant. But no clear finding in this regard- The learned Judge in revision while accepting the findings of the Courts below also found that the accused petitioners could not produce any scrap of paper in support of their specific defence of auction purchase- Hence, the impugned judgment calls for no interference. Ahad Ali Miah & Ors Vs. Mushtahid Alam & Ors 2 BLT (AD)-3 ....View Full Judgment

Sections 148, 149 and 302

The remand order made by the High Court Di-vision has not been justified at all. The High Court Division committed wrong in sending the case on remand to the trial court making some vague observation as to framing of charge by the trial court without giving any finding as to whether the accused persons have been prejudiced in any way by such framing of charge. The High Court Division could have rectified any such defect.
The Appellate Division has considered the submissions of the learned Deputy Attorney General and gone through the impugned judgment of the High Court Division and also that of the trial court. The Appellate Division also finds that the remand order made by the High Court Division has not been justified at all. The High Court Division committed wrong in sending the case on remand to the trial court making some vague observation as to framing of charge by the trial court without giving any finding as to whether the accused persons have been prejudiced in any way by such framing of charge. The High Court Division could have rectified any such defect, if at all, in framing charge. The High Court Division should have disposed of the appeals on merit. In the circumstances the Appellate Division set aside the impugned judgment dated 29.07.2011 passed by the High Court Division in Criminal Appeal No. 2195 of 1997 along with Criminal Appeal No. 1152 of 2006 and also the other impugned judgment dated 23.08.2011 passed by the High Court Division in Criminal Appeal No. 2078 of 1997 along with Criminal Appeal No. 6677 of 2009 and send back all these appeals to the Division Bench of the High Court Division presided over by Mr. Md. Abdul Hye, J. to be disposed of on merit expeditiously.
The State -Vs.- Ibrahim Mia @ Ibrahim Ali (Criminal) 13 ALR (AD)148-150 ....View Full Judgment

Sections 148 & 149

Error in recording conviction—the charge framed and findings of the Court show the accused to be guilty of rioting punishable under section 148. But the trial Court erroneously recorded conviction under section 149, although this section 149 does not independently punish any offence. The High Court Division attempted to correct it, but unnecessarily added section 149 to section 148. This is a mere irregularity which does not touch the merit of the case as the charge specifically said they were members of an unlawful assembly. The order of conviction needs be modified so as to record the conviction under section 148. Abdus Samad Vs. State 44 DLR (AD) 233. ....View Full Judgment

Sections 148 and 324

Members of unlawful assembly—Rioting committed in prosecution of their common object—Accused Tayeb Ali assaulted PW 1—Conviction of both the accuseds under section 148 PC and Tayeb MP conviction under section 324 BPC based on good evidence—But their conviction under sections 302/149 not sustainable as their —participation in assault upon deceased Bazlur Rabman doubtful. Tayeb Ali Vs. State 41 DLR (AD) 147. ....View Full Judgment

Sections 148/302/34/324/325/326/323

Criminal justice system is that if a single witness can prove direct involvement of the accused person in commission of an offence and if the same is believed or other circumstances support the prosecution case then conviction and sentence can be imposed. …State =VS= Sarafat Mondol @ Mander Mondol, (Criminal), 2020 (1) [8 LM (AD) 362] ....View Full Judgment

Section 149

Common object— Motive-Distinguished—
Common object is distinctly different from motive. Motive has nothing to do with common object. Prosecution is not bound to prove motive. Motive may be a matter for consideration in a case mainly based on circumstantial evidence. Settled law is that prosecution does not fail even if motive is. not proved where there is direct evidence. Bangladesh Vs. Gaisuddin and other- 4, MLR (1999) (AD) 29. ....View Full Judgment

Sections 149/326 and 324

The doctor opined that the injuries were simple in nature. The doctor also opined that the injuries were inflicted with blunt weapons, the act of the attracts an offence punishable under section 323 of the Penal Code by inflicting simple injuries with blunt weapons on different parts of the body.
The Appellate Division observed that on consideration of the evidence of all the P.Ws. as a whole, that the leave-petitioner Zaher Mia did not participate in the occurrence with the common object of killing Idris Mia. In the light of the findings made before, Appellate Division is of the view that conviction of the petitioner under section 326 read with sections 149 and 304 of the Penal Code was not justified. The evidence on record reveals that the leave-petitioner, in fact, committed the offence under section 323 of the Penal Code.
Md. Jaher Miah. -Vs.- The State. (Criminal) 12 ALR (AD) 67-69 ....View Full Judgment

Section 149

Member of an unlawful assembly—Whether he can be convicted when the principal offender has not been convicted —Once the court finds that an offence has been committed by any member of an unlawful assembly in prosecution of its common object, then whether the principal offender has been convicted or not all other members may be constructively liable for conviction. Abdus Samad Vs. State 44 DLR (AD) 233. ....View Full Judgment

Section 149

Applicability of the provision under section 149—Even after acquittal of the five accused there could be an unlawful assembly if there was evidence that besides the accused on trial there were others even though not stated as such in the charge or in the FIR. Rafiqul Islam Vs. State 44 DLR (AD) 264. ....View Full Judgment

Section 149

When a particular offence is committed by an individual member of the unlawful assembly, which was neither done in prosecution of common object of the assembly nor other members of the assembly lenew that the offence would be committed, other members of the assembly/cannot be held liable for the offence.
The word "likely", in the later part of section 149 of the Code means some clear evidence that an unlawful assembly had such a knowledge. In view of other offenses committed, such as criminal trespass and assault, it is difficult to hold that all the appellants are consecutively liable under section 149 of the Code when Appellant No.l Abdus Sattar alone struck a Katra blow on the right side of the chest of deceased which proved fatal and, strictly speaking, section 149 of the Penal Code is not attracted in this case. There being overwhelming evidence of inflicting Katra blow on deceased Aminul Huq by Appellant No.l, the appeal in respect of Appellant No.l Abdus Sattar is dismissed and his conviction and sentence under sections 302/149 of the Penal Code is altered to section 302 of the Penal Code and his sentence of imprisonment for life is maintained. Abdus Sattar and others vs State 46 DLR (AD) 239. ....View Full Judgment

Section 149

The eye witnesses testified that accused respondents No. 1 and 4 inflicted gunshot injuries on deceased Chandu. Accused respondent Nos. 3 and 5 fired guns shots to deceased Suruj and accused respondent No. 2 Abdul Awal assaulted deceased Azimuddin with gunshot. Accused respondent No. 6 Abdur Rahman assaulted deceased Ahamad by his gun-these accused respondents participated in specific overt acts and as such there is no difficulty in finding that the accused persons were guilty of the offence constructively under Section 149 of the Penal Code. State Vs. Giasuddin & Ors. 7 BLT (AD)-108 ....View Full Judgment

Section 149

We are of the view that though there is evidence that only four of the appellants actually caused injury to the victim, the other three being members of that unlawful assembly are equally liable. Moreover, there is evidence to show that these three caused injury to those who came to the place of occurrence to rescue the victim. Haider Ali & Ors Vs. The State 12 BLT (AD)-196 ....View Full Judgment

Section 149

For applying section 149 of the Penal Code against an accused, three conditions must be fulfilled: (a) the accused must have been a member of the unlawful assembly at the time the offence was committed; (b) the offence must have been committed in prosecution of the common object, or (c) the offence must be such as the members of the assembly knew likely to be committed in prosecution of that object.
Before applying section 149, the Court must have indubitable evidence that the members of the unlawful assembly constituted the statutory number of five, though some of them might not have been named, or identified, or brought to trial. Rafiqul Islam Vs. The State, 13BLD (AD)11 7 ....View Full Judgment

Section 161

Illegal gratification—Trap case—Because of the tough requirement of proof beyond reasonable doubt the laying of trap is the only method for detecting crimes like bribery which are committed in covert manner. Such a method is not prohibited. For laying a trap the Investigating Officer cannot be said to be thereby ‘instigating commission: of the offence. Principles of accomplice evidence cannot be extended to the evidence of trap witness, because the latter cannot be termed as accomplice. As to corroboration of trap witnesses no hard and fast rule can be given. There may be cases where the Court will look for independent corroboration— equally there may be cases where the Cowl may accept evidence of trap witnesses. Shahabullah Vs. State 43 DLR (AD) 1. ....View Full Judgment

Section 161

The Penal Code, 1860
Section 161 read with
The Prevention of Corruption Act, 1947
Section 5(2) read with
The Code of Criminal Procedure, 1898
Section 561A read with
Durnity Daman Commission Bidhimala, 2007
Rule 16
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir, (Criminal), 2017 (2)– [3 LM (AD) 509] ....View Full Judgment

Sections 193 and 228

What is the meaning of judicial proceeding used in section 228 of the Penal Code? If this section is read along with section 193 of the Penal Code
The Appellate Division held a comprehensive meaning can be gathered. A judicial proceeding so as to make use of them as the basis for fastening the makers of those statements with the criminality of the offence under section 228 read with section 193 applies only when false evidence is given in a judicial proceeding. The creation of false power of attorney and use of this false power of attorney as evidence is also covered within the meaning of this section. Intentionally giving false evidence is an offence punishable under this provision. Any-body who makes a false statement on oath knowing it to be false makes it liable to be prosecuted for forgery. Such evidence must be false evidence, a term defined and explained in section 191.
Government of Bangladesh and others: Nazma Majid: -Vs.- Most. Naznin Be¬gum and others (Civil) 10 ALR (AD) 241-248 ....View Full Judgment

Section 199, 200

The claim of the respondent No. 1 that the appellant is a bank loan defaulter has been persistently denied by the appel­lant and the matter is pending before the superior Courts and thus we do not find that there exits such a clear case capable to be decided at the micro-level on the interpretation of the relevant law. Abdul Halim Gazi & Bangladesh, Dhaka vs Afzal Hossain (Amirul Kabir Chowdhury J)(Civil) 2ADC 533 ....View Full Judgment

Section 199 and 200

Declaring that the election of the Jhalakathi Pourashava has been vitiated as a whole and consequently cancelling the Gazette notification declaring the appellant as elected to the aforesaid post.
Once the election process has been start­ed, moreso, when in the instant case election result has been published in the official gazette the High Cough Division has no jurisdiction under Article 102 of the Constitution to enter­tain any matter relating to election unless there is corum-non-judice or mal­ice in law as decided by the Court. It has been settled long ago that disputed ques­tions of fact are outside the jurisdiction of disposal of an application under Article 102 of the Constitution. Abdul Halim Gazi vs. Afzal Hossain and others (Amirul Kabir Chowdhury J) (Civil) 4ADC 195 ....View Full Judgment

Section 201

Accused’s statement the part of which is incriminating does not connect him with the act of killing. In the statement of accused Yasin Majhee which was recorded in Bengali it appears that he accompanied the murderers up to the house of Yasin Mridha where the dead body was brought. This part of the statement may be incriminating if at all in respect of the offence of concealment of the dead body, but it does not connect him with the act of killing. State Vs. Abdur Rashid Piada 40 DLR (AD) 106. ....View Full Judgment

Section 201

The statement of the accused Joynal to the Chairman is of the same nature and as such is not a confessional statement As to the extra—judicial confession orally made by accused Joynal to PW 2, Chairman, this is also of the same nature as the statement recorded by the Magistrate; he did not implicate himself in the murder, and as such it is not a confessional statement implicating himself and other accused In the murder. State Vs. Abdur Rashid 40 DLR (AD) 106. ....View Full Judgment

Section 201/34

Both the courts below concurrently found that the inmates of the PO house committed the murder of Chapa entering into her room on the night. True, the prosecution could not angle out them in so many words. From the evidence of PW 1 Bimal Kumar Das it appears that certain alamats were seized from PO house including a blood stained lungi of the accused Zahirul Alam Kamal. The accused Zahirul Alam Kamal has not given any explanation in the matter. In view of positive evidence that the blood stained lungi was that of accused Zahirul Alam Kamal, according to us, he cannot be solved of the responsibility of murder of (Chapa. Regarding two other accused-respondents however we do not find any such incriminating element to connect them with the murder though they, as well, are found responsible for causing disappearanceof the evidence. In such view of the matter we feel inclined to give benefit of doubt to the two other respondents-Nasiruddin Jamal and Zillul Bari so far as the charge against them under Section 302/34 of the Penal Code is concerned. They however cannot be absolved of the charge under Sections 201/34 of the Penal Code. The State Vs. Khandker Zillul Bari 14 BLT (AD)-91 ....View Full Judgment

Sections 295A and 298

In spite of issuance of repeated summons and warrant of arrest the respondent No. 2 did not appear before the Magistrate concerned but prayed for quashing the proceeding before the High Court Division without praying for bail for which it was the duty of the High Court Division to reject the quashing petition. Mowlana Md Yusuf vs State and another 3 BLC (AD) 171. ....View Full Judgment

Sections 299, 300 & 302

In the case of culpable homicide the intention or knowledge is not so positive or definite. The injury caused may or may not cause the death of the victim. To find that the offender is guilty of murder, it must be held that his case falls within any of the four clauses of section 300 otherwise he will be guilty of culpable homicide not amounting to murder. Facts of the case show that death was caused without premeditation. Bandez Ali Vs. State 40 DLR (AD) 200. ....View Full Judgment

Sections 299 & 300

When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention. State, represented by the Solicitor to the Governemnt of the People's Republic of Bangladesh vs Ashraf Ali and others 46 DLR (AD) 241. ....View Full Judgment

Sections 299 and 300

Mere killing of a person or mere causing of a person’s death is not murder or a culpable homicide but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in section 299 as “culpable homicide” and four classes of cases have been described in section 300 as “murder”. The essential difference between mere “culpable homicide” and “murder” is the degree of probability of causing death. When death is probable, it is culpable homicide but when death is most probable, it is murder. The State Vs. Ashraf Ali and others, 14BLD (AD)127 ....View Full Judgment

Section 300

Doctrine of criminal causation.
The doctrine of criminal causation has reasonable limits-it is not interminable. There are cases when the court regards the cause as too remote to come to the conclusion that the injuries inflicted by the accused persons may or may not cause the death, the act of the accused persons attracts an offence of culpable homicide not amounting to murder.
Firoz Ali and another: -Vs.- The State: (Criminal) 10 ALR (AD) 330-331 ....View Full Judgment

Section 300, clauses 1, 2, and 3

The weapon used was a lethal one and the injury I grave in nature was caused on the vital part of the body. The act was done with the—intention of causing such bodily injury intended to be inflicted as was sufficient in the ordinary course of nature to cause death. It falls clearly within the 1st, 2nd & 3rd clauses of section 300 Penal Code. Md. Abdul Majid Vs. State40 DLR (AD) 83. ....View Full Judgment

Sections 300, 299 & 304—Part I

Culpable homicide—The injuries, though caused intentionally, are of such a nature that these are “likely to cause death” and this does not constitute murder’—It constitutes culpable homicide not amounting to murder. State Vs. Montu 44 DLR (AD) 287. ....View Full Judgment

Section 300

From the consistent evidence we find the accused persons who were members the unlawful assembly were armed guns, daos, ballam, halanga etc. encircl Bichra (adjacent homestead) and several gun shots which injured deceased persons. All the members of unlawful assembly had knowledge the prosecution of the common object of unlawful assembly guns and other deadly weapons were to be used which might death. The accused persons were aggressors as they attacked the informant party with any provocation. From the weapons and nature of injuries received by deceased persons at the vital parts of bodies it is palpably clear that it is a case of murder as defined under Section of the Penal Code. State Vs. Giasuddin & Ors. 7 BLT (AD)-108 ....View Full Judgment

Section 300

Second clause read with illustration (b) Knowledge in the second clause must be, pus, in relation to the person harmed and the offence is murder even if the injury may not be generally fatal but is so only in a special case provided such knowledge exists in relation to the particular injured person. Nibir Chandra Chowdhury and Anr. Vs. The State 9 BLT (AD)-272 ....View Full Judgment

Sections 300 & 304

A prisoner sentenced to imprisonment for life has no right to claim remissions, inasmuch as, the remissions are available to a prisoner in the nature of privilege. After conviction a prisoner cannot claim any right of remission other than a right of appeal and in the appeal he can claim acquittal or the alteration of the conviction or sentence which is permissible by law. In case of murder if the convict's case covers any of the exceptions enumerated in section 300, his conviction may be converted to part I or part II of section 304 or he may be acquitted. Except in those three circumstances, a convict undergoing life sentence cannot claim any other right. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513] ....View Full Judgment

Sections 302/149

Common object–
In absence of prove of the ingredients of common object, the courts below committed error of law in convicting the appellants and others under sections 302/149 of the Penal Code. To secure conviction with the aid of section 149 of the Penal Code an overt act on the part of a member of unlawful assembly is not necessarily required but participation with common object must be proved to the hilt which is absent in this case. When there is a general allegation against a large number of persons the Court will hesitate to convict all of them on theory of constructive liability on vague evidence. ...Abu Taher =VS= The State, (Criminal), 2019 (2) [7 LM (AD) 247] ....View Full Judgment

Sections 302/149

Convict appellants and entitled to get the benefit of doubt–
Normally, this Division does not interfere with the concurrent findings of fact of the Courts below in the absence of very special circumstances or gross errors of law committed by the High Court Division. But where circumstances show that the accused persons are entitled to get benefit of doubt it is duty of this court to step in and correct the erroneous decision of the High Court Division. In consideration of the evidence on record as discussed, we are of the view that all the convict appellants are entitled to get the benefit of doubt. ...Abu Taher =VS= The State, (Criminal), 2019 (2) [7 LM (AD) 247] ....View Full Judgment

Section 302/34

The Penal Code
Section 302/34 read with
The Code of Criminal Procedure
Section 164
Statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused–
It is the settled principle of law that the statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused, unless there is strong circumstantial and corroborative evidence to justify the statement made by the accused under section 164 of the Code of Criminal Procedure. On perusal of the 164 statement of the accused Tutul and testimony of the P.Ws.2 and 4, we are of the view that the testimony of P.Ws.2 and 4 not only supports the statement made by the accused Tutul under section 164 of the Code of Criminal Procedure but those corroborates the same. It is also proved that confessional statement was voluntary and true and properly recorded by Mr. Narayan Chandra Das, Metropolitan Magistrate, P.W.3, in accordance with law. So, there is no iota of doubt about the abduction and then killing of the deceased, Rony by the accused persons.
We are of the view that the judgment and order of conviction and sentence passed by the trial Court are not tainted or perversed, rather the impugned judgment of the High Court Division in acquitting all the convicts is upon misreading of the testimony which cannot be sustained in the eye of law. From the deposition of P.Ws.2, 3, 4 and 14 it is proved beyond all the reasonable doubt that the accused Tutul and Badal in a pre-planned manner abducted and killed Rony in front of P.W.2 Badsha. Therefore, the judgment and order so far it relates to acquitting the accused Badal and Tutul is liable to be set aside.
The sentence of death is commuted to sentence for life in respect of convict respondents Fazlur Rahman Badal and Monir Hossain Tutul. The respondents Fazlur Rahman Badal and Monir Hossain Tutul respondents in Criminal Appeal Nos.98 and 101 of 2014 are directed to surrender before the Metropolitan Additional Sessions Judge, 1st Court, Dhaka within 2(two) weeks from the date of receipt of this judgment to serve out the rest of the sentence, failing which, the said Court shall take steps to bring them in jail custody in accordance with law. …State =VS= Fazlur Rahman alias Badal, (Criminal), 2019 (2) [7 LM (AD) 269] ....View Full Judgment

Sections 302/34

In many cases a single witness by the simplicity and cleanness of his narrative, by the probability and consistency of the incident he relates, by his agreement to other matters of fact too notorious to stand in need of testimony — if situation and character be taken into account, will be enough to stamp conviction on the most reluctant mind. In other in-stances, a number of witnesses, though all were to the same fact, will be found wanting in the balance. If P.W.2 is disbelieved, P.W.6 must be disbelieved straight way on the simple reason that she is not an FIR named witness and she is not corroborated by other persons who have allegedly appeared to the scene with her and that she is not wholly reliable. The judgment of the High Court Division is totally based on conjectures, surmises and hypothetic. There is another aspect which should not be ignored that the defence has examined 9 witnesses. An accused person is a competent witness for the defence and may give evidence on oath in disprove of charges made against him or any other per-sons charged together with him. If an accused is a competent witness, the witnesses examined by the accused carry similar weight. The High Court Division ought to have analyzed their evidence before finding the appellants guilty of the charge. The judgment of the High Court Division is set aside. …Kazem Uddin alias Kazi =VS= The State, (Criminal), 2019 (2) [7 LM (AD) 280] ....View Full Judgment

Sections 302, 34 and 120B

The preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family– To materialise the common objective of the killing of Bangabandhu Sheikh Mujibur Rahman with the members of his family the accused appellants participated in their respective assignment covering a greater range of area starting from Cantonment, Parade Ground of Balurghat, New Airport, Mohakhali, area of Manik Mia Avenue, Mirpur Road, Ministers’ Residence, Shahbagh Radio Station, Corner of Race Course, Lake Side at Kalabagan, Dhanmondi and finally to House No.677, Road No.32, Dhanmondi, and that provisions of Section 34 of Penal Code contains rule of evidence which does not create a substantive offence and, as such, the said participations of the accused-appellants were made in furtherance of their common intention to do the illegal act of the killing of the then President with members of his family and relations comes within the purview of Section 34. In accordance with the preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family and relations and accordingly I am of the view that the convictions against the accused-appellants under Sections 302, 34 and 120B of the Penal Code do not suffer from any illegality and, as such, the same do not call for any interference by this Apex Court. Since the trial Court and the High Court Division made concurrent findings as to the commission of the offence, there is no scope at this stage to interfere with the concurrent findings of facts as to the involvement of the accused-appellants in the commission of offence and, as such, all the appeals are liable to be dismissed and the Death Reference is liable to be affirmed. (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386] ....View Full Judgment

Section 302/34

Commuting the sentence of death to imprisonment life– All the eye witnesses to the occurrence categorically stated about only one blow given by the appellant, Muzibur Rahman on the head of the deceased and none said about any second attempt by him to cause further injuries or any other overt act and this fact substantiates that the appellant had no intention to cause death of the deceased. Charge sheet shows that PC and PR of the appellant is nil. And he has been languishing in death cell since 04.03.2001, that is, for more than 11(eleven) years. Considering of the case, we are of the view that justice would be best served if the sentence of death awarded to the appellant by the learned Additional Sessions Judge and confirmed by the High Court Division is commuted to imprisonment for life. ...Muzibur Rahman =VS= The State, (Criminal), 2020 [9 LM (AD) 116] ....View Full Judgment

Section 302/34

Conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self-contained even it may not have received corroboration from other witnesses– On consideration of the facts and circumstances and the law discussed above along with the materials on record we find that the High Court Division was not wrong in holding that the appellant Liton participated in the offence with the common object of killing Asha, the deceased. Thus the submissions as advanced by the learned advocate for the appellant has been meticulously addressed and considered by the High Court Division while delivering the impugned judgment and order and as such the same does not call for any interference.
This Division in several cases held that conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self-contained even it may not have received corroboration from other witnesses but it stands fully corroborated by the circumstances of the case and medical evidence on record. Its fullness and completeness are enough to justify the conviction. This view finds support in the case of Abdul Hai Sikder and another Vs. The state, 43 DLR (AD)95. We do not find any merit in this appeal. Hence this criminal appeal is dismissed. ...Liton =VS= The State, (Criminal), 2020 [9 LM (AD) 315] ....View Full Judgment

Section 302

Substitütion of sub-section (5) of section 367 CrPC by the Law Reforms ordinance—Effect of change on sentencing— Previously death sentence was the normalal sentence for murder and the court was required to give reasons if the lesser sentence of life Imprisonment was given—After the substitution now reasons have to be given in either case —A death sentence is to be justified in as much in the in the same way as in the case of lesser sentence of life term imprisonment. Abed Ali Vs. State 42 DLR (AD) 171. ....View Full Judgment

Section 302

Sentence—
Commutation of death sentence—Delay of about two years or so in the disposal of the Death Reference Case and the Jail Appeal in the High Court division cannot by it if be a ground for awaiting lesser sentence. Abed Ali Vs. State 42 DLR AD 171. ....View Full Judgment

Section 302

Culpable conduct of the accused that he made no attempt to look for his wife since she was missing is explicit, which is confirmatory of his involvement in the murder of his wife. Normally an accused is under no obligation to account for the death —for which he is on trial, but this is bound to be different. Dipok Kumar Sarker Vs. State 40 DLR (AD) 139. ....View Full Judgment

Section 302

In the present case the offence followed a brief tenure of a rancorous married life between the appellant and the deceased. It was admitted by the prosecution that it was not a blissful union from the beginning. Circumstances would have been taken notice of while inflicting proper punishment prescribed under the law. Dipok Kumar Sarker Vs. State 40 DLR (AD) 139. ....View Full Judgment

Sections 302/34

Commnon intention—Whether the evidence of PW 1 and PW 11, two eye witnesses, shows that the appellant NOs 2—4 had shared common intention to cause the death of Nandalal along with the appellant No. 1—There was no proper evidence to make such an inference. Amar Kumar Thakur Vs. State 40 DLR(AD) 147. ....View Full Judgment

Sections 302/34

Inconsistent evidence of PWs 2 and 4—Omissions and contradictions in their depositions were not given consideration by the Courts below —Defence case appears to be more probable than that of the prosecution “as it fits in human, nature and conduct”. Appellants entitled to acquittal as a matter of right. Abul Kashem Vs. State 41 DLR (AD) 152. ....View Full Judgment

Sections 302/34 & 302/ 109

Confession —Conviction on confession alone—Relying on his incriminating statements that he made conspiracy with co—appellant Abdul Khaleq to murder his step—mother and when from his statement it appears that he was very much present standing outside the hut at the time of the murder, appellant Hazrat Ali can be safely convicted for abetment of murder. Hazrat Ali & others Vs. State 44 DLR (AD) 51. ....View Full Judgment

Sections 302/109 and 148

Evidence on record does not justify the order of conviction under sections 302/109 and 148 of the Penal Code upheld by the High Cowl Division—The learned Judges did not at all consider the evidence relating to the alleged abduction of Sohrab, Mahtab and Mobarak for which the appellants were convicted also under sections 362/149 Penal Code. Jamal Vs. State 40 DLR (AD) 38. ....View Full Judgment

Sections 302 and 304 Part 1

Culpable homicide not amounting to murder— From the circumstances of the case and the nature of injury that resulted in the death of victim after 11 days after the infliction of the injury, the appellant cannot be held guilty of murder. Conviction altered to section 304, Part I. Lal Miah alias Lalu Vs. State 41 DLR (AD) 1. ....View Full Judgment

Section 302

The learned Judges of the High Court Division found that all the prosecution witnesses have been gained over conviction of the respondent based on her confessional statement- In the facts of the present case, the learned Judges refused to put any reliance on the confessional Statement of the respondent in the manner and in the circumstances it has been recorded such circumstances, the learned Judges found that there was no legal evidence to sustain the conviction of the respondent and consequently acquitted her- The learned Judges having committed no illegality in sing the impugned order of acquittal. The State Vs. Jahanara Begum 4 BLT (AD)-240 ....View Full Judgment

Section 302

Does not fall within the section 302 of P. C- The High Court Division itself noticed that there were several serious juries on the body of the deceased but there is no evidence that the appellant had used more than one injury upon the deceased as noticed above. The High Court Division failed to notice that P. W. 11 the doctor had given his opinion that the death caused due to haemorrhage from all the id wounds. There is no evidence that the alleged axed blow by the appellant alone caused the death of Hyder Ali. It is, therefore, evident that the appellant could be convicted for causing the death of Hyder Ali. He could at best be held liable causing hurt with a dangerous (sharp­ing) weapon but not for causing the death of Hyder Ali. The High Court vision, however, found that the appellant could not escape from the liability of inflicting such fatal blow which resulted in death of Hyder Ali. This again shows application of mind both to fact and The appellant was found guilty of the offence under section 302 of the Penal Code; but surprisingly at the end of the judgment the High Court Division affirmed the order of conviction and sentence as passed by the trial court forgetting altogether that the conviction of the appellant was recorded by the trial court under section 302/149 of the Penal Code which is a completely different kind of conviction from one under section 302 directly where the liability is personal and in the former case the liability is vicarious. Altaf Hossain Vs. The State 6 BLT (AD)-14 ....View Full Judgment

Section 302

In a case where two persons have been murdered at dead of night, it is but natural to inform the police first about the occurrence. Non-mentioning of any name in the F.I.R. rings a truth in the F.I.R. Shahjahan Sardar and others Vs. The State 13BLD(AD)58 ....View Full Judgment

Section 302

Modification of sentence of death– The death sentence imposed upon youthful offenders, even up to the age of 25 years was commuted to a sentence of transportation for life. We also note from the charge-sheet that the P.C.P.R. (previous conviction and previous record) do not disclose any previous criminal activity of the condemned petitioner which tends to show that his character is not inherently criminal in nature. We keep in mind also the fact that admittedly enmity and grudge had developed between the condemned petitioner and the victim and her family which has triggered the action of the accused.
In the case of Nalu Vs. State reported in 1 Apex Law Report’s (AD) 222, where the facts were similar, with similar mitigating circumstances, this Division commuted the sentence of death to one of imprisonment for life.
The youth the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than 812 years, we are of the view that ends of justice will be sufficiently met if the sentence of death is commuted and altered to one of imprisonment for life. Accordingly, the Jail Petition No.15 of 2010 is dismissed with modification of sentence of death. …Rahmat Ali alias Shukkur =VS= The State, (Criminal), 2020 (1) [8 LM (AD) 626] ....View Full Judgment

Sections 302/34

Sentence of death–
The appellant is a threat to law and order and a menace to society. He would do away with anyone, who stands for upholding law and order. In view of the way the victim was murdered, we do not find that the sentence of death is at all disproportionate to the crime alleged. We, therefore, do not find any illegality or infirmity in the judgement and order of the High Court Division confirming the sentence of death. .....Kamal alias Exol Kamal =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 369] ....View Full Judgment

Sections 302/35 read with sections 34 & 304

High Court Division fell in an error in finding the accused guilty under sections 302/35 and it committed further error in awarding imprisonment for life to all the accused. If section 35 attracts, their sentences will be different. The conviction of the appellants is altered to one under section 304, part I read with section 34 of the Penal Code, and thereby he is sentenced to 12 years rigorous imprisonment with a fine of taka fifty thousand each to be paid within three months from date, in default, to suffer rigorous imprisonment for two years more. The fine if realized would be paid to the victim’s widow or in her absence to the children. The appeals are dismissed with the above modification of the conviction and sentence. .....Khalil Peada =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 374] ....View Full Judgment

Section 302/34

It is our opinion that the evidence of the two eye witnesses in respect of complicity of accused Kajal, son of Ansar Ali cannot be relied upon to sustain his conviction, and, accordingly, the appellant is liable to be acquitted. .....Palash =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 587] ....View Full Judgment

Section-302/34

Commute the sentence of death–
The appellant Alam Sheikh of Criminal Appeal No.43 of 2012 has been in condemned-cell since 22.02.2005, that is, more than 11 years. The P.C. and P.R. of the appellant Alam Sheikh are nil and as such, he was not a habitual offender. Considering all aspects of the case, we are inclined to commute the sentence of death of imprisonment for life. .....Salim =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 595] ....View Full Judgment

Sections 302/34

The evidence of the prosecution witnesses have been corroborated fully by the own confessional statements of these condemned prisoners which have been found voluntary and true by both the trial court and the appellate court. .....Shahid Ullah & others =VS= The State, (Criminal), 2016-[1 LM (AD) 595] ....View Full Judgment

The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that pre- plan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law. .....Shahid Ullah & others =VS= The State, (Criminal), 2016-[1 LM (AD) 595] ....View Full Judgment

Section 302/34

In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate. .....Sohel Dewan =VS= The State & another, (Criminal), 2016-[1 LM (AD) 497] ....View Full Judgment

Sections 302/34

Commuted death sentences to imprisonment for life–
Druto Bichar Tribunal Case No.22 of 2005 convicting the accused -respondents herein and others under sections 302/34 of the Penal Code and sentencing them there under to death. The High Court Division reason commuted their death sentences to imprisonment for life. The High Court Division has clearly stated the reason of commuting the death sentences to imprisonment for life. The High Court Division has stated to the effect that since the age of the appellants (the convicted respondents herein) were not that much and they had just attained the age of majority they (the learned Judges) found it justified to commute the sentences of death to imprisonment for life. We find no reason to interfere with the above observation and decision of the High Court Division. .....The State =VS= Saifullah Al-Mahmood Tanvir & others, (Criminal), 2016-[1 LM (AD) 501] ....View Full Judgment

Sections 302/201/34

Circumstantial evidence–
It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses. Such circumstances are totally absent in this case, particularly when the story of administering poisons is found to be doubtful. .....Haji Mahmud Ali Londoni =VS= The State, (Criminal), 2016-[1 LM (AD) 505] ....View Full Judgment

Sections 302 & 109

In view of the evidence the Appellate Division held that the appellant could not be solely saddled with the "short gun fire injury on the deceased, Abdur Rakib" resulting in his death, particularly when the other accused had also guns and they fired from their guns as well. In view of the matter, the High Court Division took the right decision in affirming the sentence of death awarded to the appellant. Appellate Division is of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine. .....Momtaj Ali @ Babul =VS= The State, (Criminal), 2016-[1 LM (AD) 557] ....View Full Judgment

Section 302/34

The prosecution failed to prove the case against the appellants beyond reasonable doubt–
The prosecution having totally failed to prove the case against the appellants beyond reasonable doubt the Courts below erred in law in relying upon such unfounded and uncorroborated evidence and also on the testimony of the hostile witnesses as well as upon the other evidence, uncorroborated on material particulars, which are beyond the principle of criminal justice system. As such the decision convicting and sentencing the appellants on such unfounded evidence is not sustainable in law. Hence we find merit in this appeal. The judgment and order of conviction and sentence, passed by the Court of Sessions as well as by the High Court Division against the present appellants, are set aside. The appellants are directed to be released forthwith from custody, if not wanted in connection with any other case. .....Humayun Kabir =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 214] ....View Full Judgment

Sections 302/34/114

A single testimony if convincing and found to be full, complete and self contained, whether corroborated by other witness or not, is sufficient to bring home the charge and as such there will be no illegality in convicting an accused on the basis of such single evidence. The doctor who conducted the post mortem, the High Court Division categorically found that the charge against the condemned prisoner Jharu and Mokim have been proved and accordingly found them guilty for conjointly killing the victim Monowar Hossain at the courtyard of the house of Badal Sarder. After making elaborate discussions on the basis of the fact and law the High Court Division ultimately accepted the death reference against Mokim and Jharu and thereby affirmed the sentence imposed upon them. We are of the view that the condemned prisoner appellants Jharu and Mokim failed to make out a case in their favour by which the judgment and order of conviction and sentence passed by the trial Court and affirmed by the High Court Division can be interfered with. We do not find any merit in this appeal. Hence the jail appeal is dismissed. .....Jharu =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 233] ....View Full Judgment

Section 302

Death caused by lathi on the head—The accused petitioner assaulted with a lathi on the head of the deceased Md Nuru Howlader as a result of which he died when PWs 3, 4, 5 and 9 all testified about the inflicting of the injury on the head by the accused-petitioner corroborated by the PW.13, the doctor who was not cross- examined by the defence. The High Court Division rightly upheld the conviction and sentence of the petitioner. Kabir Howlader vs State 5 BLC (AD) 12. ....View Full Judgment

Section 302

The learned Single Judge has failed to consider the material aspect that the first information report was lodged within one and a half hour of the occurrence and all the four eye-witnesses proved the participation of the accused in inflicting one dagger injury on the body of deceased Abu Taher @ Abu when the learned Single Judge considered some very minor and insignificant circumstances which are not at all relevant in this case as the case was well proved by as many as four eye-witnesses of the occurrence and hence the accused-respondent is found guilty under section 302 of the Penal Code and he is sentenced to suffer imprisonment for life. State vs Ful Mia 5 BLC (AD) 41 ....View Full Judgment

Sections 302/34

The trial Court as well as the High Court Division thoroughly considered the evidence adduced by the prosecution and came to the concurrent finding that the petitioners along with others were instrumental in causing murder of Mokies when there is no denial of the factum of murder of Mokies at the time, place and in the manner as alleged by the prosecution, the Courts below committed no illegality and wrong in finding guilt of the petitioners. Abu Jamal and another vs State 5 BLC (AD) 157. ....View Full Judgment

Section 302

Right of self-defence against murder charge—
Section 100— Reduction of charge into section 304-1—permissible when there is land dispute between parties—
Right of private defence extending to voluntarily causing the death can be taken in appropriate case when reasonable apprehension of death or grievous hurt exists. Where the deceased was not armed with deadly weapon there cannot be reasonable apprehension of death or grievous hurt providing the right of self defence. In an occurrence taking place on land dispute the conviction and sentence under section 304 Part I is justified. Khondaker Saiful Islam Vs. The State— 3, MLR 1998) (AD) 117. ....View Full Judgment

Section 302

Charge can not be reduced merely because deadbody was not recovered—
Conviction under section 302/34 can well be maintained when based on legal and sufficient evidence even if the deadbody cannot be recovered. There is no warrant to reduce the charge from Section 302 to 364 merely because the deadbody was not recovered. Shaha and others Vs. The State— 2, MLR(1997) (AD) 162. ....View Full Judgment

Section 302

Charge of murder — Motive of murder —where there is direct evidence—
The settled position of law is that the prosecusion is not bound to prove the motive of murder where there are ocular evidence, because motive is not a necessary ingredient of the offence under section 302 of Penal Code. The failure of the prosecution to prove motive even though taken, does not render eny ground to disbelieve the prosecution case where there are material evidence of direct nature. Motive may be a matter for consideration specially when the case is based on circumstantial evidence. In a case of gruesome murder scrutiny of evidences on record must be made with great care. Reducing the sentence of death into R.I. for 10 years under section 304 in a case involving four murders in light hearted manner attended with non-application of judicial mind, surmise and conjecture, contradictory and incoherent findings unrelated with the evidence on record are held to be perverse occasioning failure of justice. State represented by the Solicitor of the Government of Bangladesh Vs. Giasuddin and others— 4, MLR (1999) (AD) 29. ....View Full Judgment

Section 302

Ocular evidence—
Conviction and sentence passed on proper appreciation of ocular evidence cannot be interfered with. Sentence reduced by the High Court Division can not be further reduced. Babul Farajee Vs. The State— 4, MLR (1999) (AD) 149. ....View Full Judgment

Section 302/34

Delay in furnishing post mortem report— Effect of—
Delay of 7 days in furnishing post mortem report is no ground for interference with the conviction and sentence. There is no scope to reduce the sentence of life imprisonment under section 302. Sabiruddin Mondal Vs. The State— 4, MLR (1999) (AD) 151. ....View Full Judgment

Section 302

murder charge— Delay is not always a ground for altering sentence of death—
Delay by itself is not extenuating circumstance for commutation of the sentence of death into imprisonment for life. The condemned prisoner suffering from a bitter sense of being wronged by his way ward wife together with delay merit such commutation. Zahiruddin Vs. The State— 1, MLR (1996) (AD) 248. ....View Full Judgment

Section 302

Murder of wife— Huband's liability— Burden of proof— Alibi as defence— Nature of proof-Burden of proof of prosecution case entirely lies upon the prosecution. In a wife killing case while residing in the same house with the husband, the husband is under the liability of explaining the circumstance under which his wife was murdered. The burden of proof of alibi as to the husband's remaining somewhere else when his wife died lies upon the husband. This burden is somewhat lighter than that of the prosecution which means that the burden of the husband is discharged when he has given a reasonable explanation in favour of his innocence but the prosecution in discharging its burden has to prove the charge with cogent and consistent evidence. State Vs. Mofazzal Hossain Pramanik - 43 DLR (AD) 64. ....View Full Judgment

Sections 302/34

PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel–
We find from the impugned judgement that the High Court Division has correctly analysed the evidence and materials on record. Clearly the death-blow was dealt to the prosecution case by the fact that the only eyewitness, namely PW 9 stated to the informant PW 1 that some unknown miscreants committed the offence. The High Court Division correctly observed that at the earliest point of time PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel. We do not find any infirmity in the judgement of the High Court Division with regard to the respondents in Criminal Appeals No.61-62 and 64 of 2015. ...State =VS= Md Zakir Hossain, (Criminal), 2019 (1) [6 LM (AD) 260] ....View Full Judgment

Section 302

On examination of the entire evidence on record, it transpires that no eye witness was examined by the prosecution showing that the convict appellant murdered deceased Chande Ali–
Considering the totality of the evidence on record, it is evident that though the prosecution could prove that Chande Ali was murdered but failed to prove that the appellant caused his death. Therefore, the conviction and sentence of the convict-appellant under section 302 of the Penal Code by the trial Court as well as affirmation thereof by the High Court Division was not justified. The judgment and order dated 30.09.2010 passed by the High Court Division in Criminal Jail Appeal No.639 of 2006 dismissing the said appeal and thereby affirming the judgment and order of conviction and sentence dated 11.06.2001 passed by the learned Additional Sessions Judge, Barisal in Sessions Case No.08 of 1995 is hereby set-aside and the convict-appellant is acquitted of the charge under section 302 of the Penal Code. The convict-appellant be set at liberty at once. ...Babul alias Fakrul =VS= The State, (Criminal), 2019 (1) [6 LM (AD) 181] ....View Full Judgment

Section 302

Charge when can be altered—
When there is no derict evidence that the convict-appellant inflicted the fatal injury to the deceased, the charge under section 302 of the Penal Code is altered into one under section 302/109 for abetment. Billal Vs. The State—5, MLR (2000) (AD) 244. ....View Full Judgment

Section 304 Part I

Culpable homicide—Intention to cause death—From the evidence there can be no manner of doubt that the assault was done with the intention of causing such bodily injury as was likely to cause death. The accused—husband was not content by striking his wife with a branch of a tree but was reckless enough to kick her in the tender part of her body which immediately caused bleeding. It was not a case of mere knowledge only (to constitute offence under section 304 Part II) that such act was likely to cause death but that the intention to cause such injury as is likely to cause death was very clear. It is true —there is no finding as to “intention” either in the impugned judgment or in the judgment of the trial Court. This is certainly not desirable because the law requires a clear finding as to “intention” before recording a conviction under Part I of section 304. Notwithstanding the absence of the requisite finding as to intention, the appellant—husband was rightly convicted. Jatin Chandra Sil Vs State 43 DLR (AD) 223. ....View Full Judgment

Section 304 Part-1 and Section 304 Part-II

A case of gruesome double murder
We have already noticed and agree w the finding of the trial court that there was neither any object of murdering anybody nor was there any such intention. From the evidence of P.W. 14 Dr. Shah Jamai who held autopsy on the dead body of Fakku Mia. It is found that he received several grievous injuries including one on the chest inflicted by Harunur Rashid and another on the abdominal cavity which pierced the surface of the liver inflicted by unknown assailant and as such it cannot said that the death was the most likely result of the injury on the chest and the doctor also did not depose so. We therefore, hold that respondent Harunur Rashid by inflicting the injury on the chest of Fakku Mia resulting the death of the victim committed an offense under Sect-ion 304 Part 1 of the penal Code for causing the bodily injury as was likely to cause death and in fact the death was caused. The injury caused by the other respondent Jahirul Hoque alias Jaju was not on the vital part of Bakul Bibi and we have already noticed that there was no evidence to the effect that said Jahirul Hoque knew about the pregnancy of Bakul Bibi. Under the circumstances Jahirul Hoque committed an offence punishable under Section 304 Part-II of the Penal Code. State Vs. Abdul Barek & Ors. 10 BLT (AD)-8 ....View Full Judgment

Section 304, Part-1

Accused Aynul Sheikh was privy to the offence of murder of the victim Abdul Gafur Sheikh. There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. Aynul Sheikh and Anr. Vs. The State 14 BLT (AD)- 33 ....View Full Judgment

Section 304

Section 304 of the Penal Code, which consists of two parts, does not create an offence, but provides for punishment culpable homicide not amounting to murder. The first part applies to a case where there guilty intention and the second part applies where there is no such intention, but there guilty knowledge. Nibir Chandra Chowdhury and Anr. Vs. State 9 BLT (AD)-272 ....View Full Judgment

Section 304 (Part I)

The Appellate Division is of the view that the offence attracts section 304 of the Penal Code, which contains two parts. The evidence on record proved that the appellant intentionally inflicted the injury/injuries with a pistol aiming the abdomen and chest either to cause death or to cause such bodily injury which is likely to cause death and therefore, his act attracts Part I of section 304 of the Penal Code. Since the appellant used a pistol and shot at chest, he deserves the maximum sentence provided in Part I of Section 304 and shall also liable to fine. .....Tofayel Ahmed =VS= The State, (Criminal), 2016-[1 LM (AD) 511] ....View Full Judgment

Sections 304 (Part I, II) read with section 300

Culpable homicide–
An offence of culpable homicide may or may not amount to murder but all murders are culpable homicide. Even if the culpable homicide attracts section 300, if any of the special exceptions provided in section 300 is attracted, then also the offence will be culpable homicide not amounting to murder punishable under either part I or Part II of section 304. It depends upon the facts and circumstances of each case. .....Khalil Peada =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 374] ....View Full Judgment

Section 304 (Part II)

High Court Division has totally misread the medical evidence–
The High Court Division has totally ignored that aspect of the matter and wrongly held that the appellants caused the injuries with deadly weapons resulting to the death of the victim. It has totally misread the medical evidence. The case attracts an offence of culpable homicide not amounting to murder and accordingly, we covert the conviction of the appellants to one under section 304 Part II of the Penal Code and reduce their sentence for the period they have already under gone. The appellants be set at liberty at once if not wanted connection in any other case. The appeal is dismissed with the modification of the conviction and sentence. .....Firoz Ali =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 223] ....View Full Judgment

Section 304(second part) read with 302/34

Culpable homicide–
It is admitted by the informant in his deposition that there was land dispute. The High Court Division noted that accused Nayan gave only one blow to the left knee which is not a vital part of the body showing that he did not intend to kill the victim for which the killing cannot be termed as murder. The High Court Division concluded that it is not a case of culpable homicide amounting to murder, but one of culpable homicide not amounting to murder and, accordingly, altered the conviction to one under the second part of section 304 of the Penal Code. .....The State =VS= Nayan, (Criminal), 2018 (1) [4 LM (AD) 523] ....View Full Judgment

Sections 307/34

Suspicion is not substitute of evidence. A faint doubt means a doubt without any reasonable basis. No benefit of doubt is contemplated in law. Reversal of the appellate Court’s finding will not bring the case within the ambit of murder under section 302 PC.
Trial Court arrived at the finding that these injuries constitute murder. It is the degree of probability of death from certain injuries which determines whether the injuries constitute murder or culpable homicide not amounting to murder. State Vs. Tayeb Ali and others 40 DLR (AD) 6. ....View Full Judgment

Section 307

read with
Evidence Act [I of 1872]
Section 145
The Appellate Division held that defence, by cross-examining the witnesses, could not make their testimonies as to the inflicting of blow by Shah Alam with ram dao on the deceased shaky. The defence did not even try to point out any contradiction in their testimonies within the meaning of section 145 of the Evidence Act by cross-examining the Investigation Officer on the question of inflicting ram dao blow by Shah Alam the High Court Division also failed to consider that the injury caused by Shah Alam upon the deceased with ram dao was clearly borne out from the post-mortem report. Therefore, Appellate Division found that accused Shah Alam committed an offence under section 307 of the Penal Code and he is liable to be punished accordingly.
The State -Vs.- Abul Basher Tipu 3 ALR(2014)(1)(AD) 211 ....View Full Judgment

Section 315

Prosectition for cheating—Plea of civil liability—The sum and substance of the complainant’s case is that the accused realised a total sum of Tk 50,00000 from the complainant on a promise to secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused in support of his application under section 561A CrPC Was that the liability, if any, was of a civil nature for which no prosecution would lie. Since, according to the petition of complaint, The accused totally denied receipt of any sum from the complainant, the question of civil liability does not arise. Abdur Rahim Vs. Enamul Huq 43 DLR (AD) 173 ....View Full Judgment

Section 320

Ingredients —grievous hut —in the instant case though dagger were used by the two appellants —Md. Shamir @ Shamir Khan and Shamsul Haque @ Shamsul Khan but none of the injured persons were in the hospital for twenty days and there is no evidence that the injured person failed to pursue their normal avocations for twenty days. P.W. 3 claimed that the sustained injury in the hand and was a hospital for seven days. The medical report has also not supported the prosecution allegation that these two appellants caused grievous hut as defined in section 320 of the Penal Code. Md. Shamir @ Shamir Khan & Anr. Vs. The State 11 BLT(AD)-6 ....View Full Judgment

Sections 320 and 326

Althouth the doctor deposed that the injuries he found were grievous in nature but those injuries are not grievous as contemplated under section 320 of the Penal Code. Aminul Islam alias Ranga and others vs State 5 BLC (AD) 179. ....View Full Judgment

Section 323

An occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence– On scrutiny of the post-mortem report, we find that no particular mention has been made of existence or non-existence of any injury to the eyes of the victim, as there is no specific column in the form of the post-mortem report for the eyes. On the other hand, the inquest report shows that injury to the eyes was noted by the SI of Police. The evidence of PWs 1 and 4 supports the FIR story that the accused-appellant caused an injury to the left eye of the victim with a bamboo stick.
There remains no doubt that an occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence. However, in view of the facts and circumstances of the case. The alleged nature of the injury caused by the accused-appellant, we are of the opinion that conviction under section 323 of the Penal Code would be more appropriate and that the ends of justice will be sufficiently met if the sentence of the appellant is modified to the period already undergone by him in custody. Tthe appeal is dismissed with the modification of conviction and sentence. …Rafiqul Islam Howlader(Md) =VS= State, (Criminal), 2020 (1) [8 LM (AD) 630] ....View Full Judgment

Sections 323/364/379

The police has submitted charge sheet against the accused persons and the trial court also, on examination and consideration of the materials on record, found a prima facie case against the accused persons. So, The framing of charge against them was not illegal. …Selim (Md) =VS= State, (Criminal), 2020 (1) [8 LM (AD) 360] ....View Full Judgment

Sections 324 and 326

As the Convict- appellant having not given the fikal blow (injury No. 1) he cannot be incriminated for the offence of section 326 of the Penal Code but he must be found guilty under section 324 of the Penal Code as he had inflicted one of the other two injuries which is simple in nature. Abdul Jalil vs State 4 BLC (AD) 12. ....View Full Judgment

Sections 326/34 or 149

Appellant Nos. 2—6 cannot be convicted under section 326 of the Penal Code without framing any charge under section 34 or 149 of the Penal Code and without leading any evidence as to their acting in concert or m pursuance of any common object. Ibrahim Mollah Vs. State 40 DLR (AD) 216. ....View Full Judgment

Section 326

The main ingredient for sustaining conviction under Section-326 of the Penal Code is that there must be grievous hurt—From the evidence of P.W. 8 and! P.W. 1 we are of the view that though the doctor deposed that the injuries he found were grievous in nature but those injuries are not grievous as contemplated under] Section 320 of the Penal code, In view of the nature of the evidence we hold that the; prosecution failed to prove that P.W. m sustained grievous hurt. But the fact remains; that the prosecution witnesses consistently and uniformly proved that these appellants caused hurt on PW1 by using weapons of offence and from the evidence on record we are of the view that these appellants have committed the offence punishable under Section 324 and not under Section 326 of the Penal Code. Aminul Islam @ Ranga & Ors. Vs. The State 8 BLT (AD)-129 ....View Full Judgment

Section 326 read with sections 149 and 304

We are of the view that conviction of the petitioner under section 326 read with sections 149 and 304 of the Penal Code was not justified. The evidence on record reveals that the leave-petitioner, in fact, committed the offence under section 323 of the Penal Code. Therefore, the leave-petitioner is acquitted of the charge under sections 149/326 and 324 of the Penal Code but he, is, however, convicted under section 323 of the Penal Code and his sentence is reduced to the period he has already undergone. .....Jaher Miah (Md.) =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 366] ....View Full Judgment

Section 326 read with section 320

Ingredients of offence u/s 326—
A hurt must conform to the ingredeints of section 320 of the Penal Code in order to be grievous and punishable under section 326. When the evidence on record are not clear and specific as to the inflicting of the injury by the particular accused and the Medical Officer while examining the hurt did not mention as to the ingredient of the eighth clause of section 320, the sentence under section 326 of the Penal Code does not appear to be perfectly justified and accordingly the sentence is reduced under the circumstances from one under section 326 to that under section 324 of the Penal Code with the sentence already served. Abdul Jalil Vs. The Slate— 4, MLR (1999) (AD) 262. ....View Full Judgment

Section 326 and 353

Conviction-Sustainability—
The conviction and sentence passed under sections 326 and 353 of the Penal Code on the basis of consistent ocular evidence of the occurrence taking place in broad day light cannot be interfered with by any other liberal construction not warranted by the facts and evidence on record. Nura Miajee Vs. The State— 2, MLR (1997) (AD) 86. ....View Full Judgment

Section 342

An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence.
Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman and others vs State 51 DLR (AD) 33 ....View Full Judgment

Sections 361, 363 & 366A

Age of majority and guardianship—Decision as to custody of a minor pending criminal proceedings—Neither personal law nor Majority Act is relevant for the purpose. The statute that holds good is the Penal Code. If the allegations are that of kidnapping of a minor girl, then for the purpose of her custody, the court has to proceed on the basis that she is a minor if she is under 16. If however the allegations are that of procuration of a minor girl, the court has to proceed on the basis that a girl is a minor who is under 18. Wahed Ali Dewan vs State and another 46 DLR (AD) 10. ....View Full Judgment

Section 362

Abduction- there is no age limit given of a person who may be subject of abduction- the question of age was immaterial having regard to the offence abduction. Md. Jabed Ali Vs. The State & Ors 6 BLT (AD)-248 ....View Full Judgment

Sections 363 and 361

Custody of a victim girl, if the allegations are that of kidnapping of a minor girl out of the keeping of the lawful guardian.
Kidnapping of a minor girl out of the keeping of the lawful guardian is an offence under Section 363 of the Penal Code. For the purpose of custody of the victim girl as may be prayed for in the criminal Court in a pending proceeding, the Court has to proceed on the basis that the female is a minor under sixteen years of age as laid down in section 361 of the Penal Code. For proving the offence of kidnapping the minority of the victim will have to be established at the trial. Md. Wahed Ali Dewan Vs. The State and another, 14BLD(AD)32 ....View Full Judgment

Section 366A

In an interlocutory matter concerning custody of a girl, to give a final judgment on her age is to decide an aspect of the merit of the case which is decisive of the case itself. After the decision has been given that the girl is quite major above 18 years, can there be any purpose for a trial which is still pending?
The learned Judges should have made it very clear that the finding made by them as to the age of the girl was only for the purpose of deciding the present custody of the victim girl and the trial Court was free to take its own decision upon considering the evidence to be led in the case. That having not been done, it must be said that the impugned judgment suffers from at least impropriety having usurped the powers of the trial Court in a pending criminal case. Khairunnessa vs Illy Begum & another 48 DLR (AD) 67. ....View Full Judgment

Section 366A

Age of girl—Physi­cal appearance—Physical appearance
may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In some cases physical development may take place which may be regarded as precocious while in some other cases there may not be as much development as is natural with the passage of time.
Having regard to the fact that the available materials supported the claim of the mother that the girl was aged about 15/16 years except the statement of the girl herself, the High Court Division cannot be said to have acted judiciously in ingnoring the materials and relying on the statement of the girl and their own observation of the girl. The mother has a reasonable grievance to make against the judgment which does not seem to have been passed upon a proper appreciation of the materials on record and far less keeping in view the welfare of the victim girl alleged to be a minor. Khairunnessa vs Illy Begum and another 48 DLR (AD) 67. ....View Full Judgment

Section 366A

Kidnapping- Bail of accused—may be granted when the victim girl in her statement stated that she went with the accused in her own accord—
When the trial is being delayed for no fault of the accused and when the victim girl in her statement recorded under section 164 Cr.Pc. stated that she went with the accused in her own accord the accused in such circumstances is entitled to the privilege of bail pending trial. Nurul Amin @ Bada Vs. The State— 1, MLR (1996) (AD) 251. ....View Full Judgment

Section 366A

Kidnapping- Determination of age of victim—Statements of parents—
While determining the age of victim girl more weight should be given to the statements of the parents than the emotional statement of the victim girl when her age hinges in the twilight of majority. Badiur Rahman Chowdhwy Vs, Nazrul Islam and another— 1. MLR (1996) (AD) 444. ....View Full Judgment

Section 366A

Offence of kidnapping-Determination of the age and custody of a victim minor girl—
In deciding the age and present custody of the victim girl in a pending criminal case the High Court Division cannot surpass the powers of the trial court. Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In particular case having regard to the facts and circumstances all the available materials on record must be taken into consideration rather than solely relying on the statement of the victim girl and her physical appearance. Khairunnessa Vs. Illy Begum and another— 1, MLR (1996) (AD) 148. ....View Full Judgment

Section 376

The process of sentencing is at the discretion of the Judge and is at the same time circumscribed by the law. It transpires that the respondent was in custody during the pendency of the appeal from 1993 to 2001 and, therefore, served a term of imprisonment of about 8 years. The High Court Division took the view that the period served by the respondent was sufficient to meet the ends of justice. The appellate Division does not find any illegality in the impugned judgment and, therefore, finds no reason to interfere with the impugned judgment and order.
The State -Vs.-Md. Shamsur Rahman Sikder @ Kalu & others. 4 ALR (AD) 2014 (2) 42 ....View Full Judgment

Section 376

Leave was granted for reconsideration of the evidence on record as a great doubt as to the truth of the prosecution case arises in the facts and circumstances of the case and consequently to examine if the learned judges of the High Court Division erred in law in not granting benefit of doubt to the accused appellants in the case. Md. Saidur Rahman Neoton and Ors.Vs. The State 1 BLT (AD)-20 ....View Full Judgment

Section 376

Jumping the bail — Prosecution Failed to Prove the charge — in the instant case, the High Division maintained the order of conviction and sentence of this appellant on the ground that earlier his bail was cancelled by the High Court Division and directed him to surrender to his bail bond but he failed to comply with the same and as such became a fugitive from justice. Held: for jumping the bail the appellant should not have been convicted for the main offence under section 376 which was not proved against him and other accused and all other co-accused were acquitted. Moreover, the appellant since surrender has already undergone imprisonment which is enough punishment for jumping the bail. Mizanur Rahman Vs. The State 11 BLT (AD)-26 ....View Full Judgment

Section 376

read with
Cruelty To Woman (Determent Punishment) Ordinance, 1983 (LX of 1983)
Section—4(b)(c)
The High Court Diyision on consideration of evidence of PWs rightly found that accused-petitioner Bazlu raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim girl Mahinur Begum and as such the finding of conviction and sentence of the High Court Division are based on proper appreciation of evidence on record. Bazlu Talukder Vs The State, 20 BLD (AD)227 ....View Full Judgment

Section 376

The appellant was the prime kidnapper and he forcibly had sexual intercourse with Mahinur and that the other convicts are entitled to get the benefit of doubt as has been rightly found by the High Court Division as such finding is based on proper appreciation of evidence on record and hence no interference is warranted. Bazlu Talukder vs State 5 BLC (AD) 159. ....View Full Judgment

Section 376

Offence of rape is not compoundable—
The offence under section 376 is not compoundable. The conviction and sentence based on evidence and proof cannot be Interfered with. Shorbesh Ali & another Vs. Mrs. Jarina Begum & another— 2, MLR(1997) (AD) 127. ....View Full Judgment

Section 376

Offence of rape visa-vis the offence under section 342 of the Penal Code— jurisdiction of the Court in appeal to alter the sentence—
The offence of rape punishable under Section 376 of the Penal Code in view of its inclusion in the Schedule of the Special Powers Act, 1974 was triable by Special Tribunal. On the other hand the offence under section 342 of the Penal Code is triable by the ordinary criminal court. It is patently out of the jurisdiction of the High Court Division to alter the conviction and sentence from section 376 to 342 of the Penal Code in an appeal preferred under section 30 of the Special Powers Act, 1974. Abdur Rahman and others Vs. the State— 4, MLR (1999) (AD)25. ....View Full Judgment

Sections 378 and 403

In an offence of theft there must be removal of the property out of the possession of another with intention to take dishonestly—Appellant received Taka 9000/—in good faith from the Bank’s counter instead, of Tk. 1900/—to which he was entitled and he had no knowledge that he was being overpaid—The dishonesty became full blown when the cashier requested him to return the excess amount in the evening at the school but the appellant gave a denial of having received the excess amount at all—The facts of the case do not constitute an offence of theft but they constitute another offence, dishonest misappropriation under section 402 of the Penal Code. The appellant may have received the money in good faith but the decision to appropriate the excess money to his own use makes it culpable—The conclusion is inescapable that he is inside the net. Kawsarul Alan Vs. State 42 DLR (AD) 23. ....View Full Judgment

Section 379

Commission of theft is an individual act and there must be clear evidence in respect of each individual accused. For the same reason the court is also required to consider the evidence against all the accused separately and record its findings. Abdul Mannan Vs. State 44 DLR (AD) 60. ....View Full Judgment

Section 385/109/34

Obtain bail in the instant case filed against her under Sections 385/109 of the Penal Code........... (2) Government of Bangladesh vs. Sheikh Hasina and another (Md. Abdul Matin J) (Civil) 5ADC 541 ....View Full Judgment

Section 394

Sentence is reduced to the period already undergone.
The Appellate Division held that it appears from the evidence and materials on record that the police and the local people caught hold the petitioners subsequent after the occurrence and assaulted them severely, consequently, left leg of petitioner Billal was broken. In the meantime, out of total sentence they have served out two years seven months. Considering the prevailing circumstances, particularly, the petitioners were assaulted mercilessly and that they snatched away case and kinds of TK .4500/- only and that in the mean time they have crossed the age of 40 years, Appellate Division is of the view that the ends of justice would be met if their sentence is reduced to the period already they have served out. Accordingly the petition is dismissed and order of conviction is upheld subject to the modification that the substantive sentence of the petitioners is reduced to the period already undergone by them.
Jahirul Haque and another -Vs.- The State (Criminal) 9 ALR (AD) 21-22 ....View Full Judgment

Section 394

Charge held established - Recognition by voice
read with
Code of Criminal Procedure, 1898
Section 154 - Delay in lodging FIR when explained is not fatal for the prosecution
In the instant case the convict-petitioner remained absconding after his release on bail and the trial was held in his absence in which he was convicted and sentenced. The delay of two days in lodging F.I.R was satisfactorily explained. The plea that the petitioner is not the actual accused which the apex court rejected as it is raised at such a belated stage. It is further held the charges were amply proved and the recognition of the accused by voice was established. The Appellate Division in the facts and circumstances dismissed the leave petition. Rana (Md.) Vs. The State, represented by the Deputy Commissioner, Joypurhat 15 MLR (2010) (AD) 173. ....View Full Judgment

Section 395, 397, 109, 409, 414

In a suit of this kind the trial Court and the appellate Court are not required to sit in judgment over the findings of either the Enquiry Officer or the punish­ing authority as no Court has jurisdic­tion to act as an appellate authority sit­ting on appeal over the findings of a domestic tribunal. No Court has the jurisdiction to substitute its own finding for that of the Enquiry Officer or the punishing authority, as the case may be. The trial Court and the appellate Court cannot assume the role of a fresh fact­finding body over which either the Enquiry Officer or the punishing author­ity has already made their respective exercises in a domestic proceeding. The Trading Corporatin of Bangladesh vs Kazi Abdul Hye (Mustafa Kamal J)(Civil) 2ADC206 ....View Full Judgment

Section 395

All the T.I parades were held after about one year from the date of occurrence and there was a chance for PW.1 to see the accused persons in court lockup before the identification in the TI parade for which no reliance can be placed on such TI parade and hence the conviction and sentence under section 395 of the Penal Code is not sustainable. Mirza Abdul Hakim and others vs State 5 BLC (AD) 21. ....View Full Judgment

Section 395

Identification of suspects in T.I. Parade-Belated T.I.P parade-Evidentiary value of-Preconditions of holding T.I.P.-
As human memory fades with the lapse of time, inordinate delay in holding T.I. parade reduces its evidentiary value. When the identifying witness had the chance of seeing the suspects in the court lock- up before the T.I. parade, the identification made in such T.I.P. cannot alone form the basis of conviction .T.I. parade in order to be reliable must be held immediately after occurrence or the arrest of the suspects. Abdul Hakim (Mirza) and others VS. The State— 5, MLR(2000) (AD) 27. ....View Full Judgment

Section 396

Charge need to be proved by legal evidence-
read with
Code of Criminal Procedure, 1898
Section 164- Confessional statement recorded by Magistrate after keeping the accused in police custody beyond the statutory period is held to be not voluntary.
In case of capital punishment the charge must be proved by legal evidence beyond reasonable doubt. Confessional statement of an accused recorded under section 164 Cr.P.C. keeping him in police custody beyond the specified period without explanation is held not voluntary and as such cannot be the basis of conviction without independent corroborative evidence. State Vs. Mofizuddin and others 11 MLR (2006) (AD) 76. ....View Full Judgment

Section 396

Review– It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review– It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review. From the judgment of this Division, it appears that this Division, considering the evidence P.Ws. 21,22,24,25,26,27 and 30, drew conclusion that the arms, seized from the exclusive custody and control of the review petitioner, was used for killing of victim Khalaf which was a strong circumstance to connect the petitioner with the occurrence of killing the victim.
It is evident that the petitioner is a professional and hardened criminal and that the offence was committed by him in a brutal and diabolical manner on a foreign diplomat, for which, the respect and image of the country in the international arena has been affected seriously so it is the duty of the Court to award appropriate punishment. Accordingly, the Courts did so. No excuse or circumstance can mitigate such a treacherous and cowardly act. The review petition is dismissed. …Saiful Islam alias Mamun =VS= The State, (Criminal), 2020 (1) [8 LM (AD) 623] ....View Full Judgment

Section 396

Conviction based on consistent evidence cannot be interfered with merely on ground of non-examination of Magistrate who held T.I. Parade-Conviction and sentence was awarded on proof of charge under section 396 of the Penal Code with consistent and reliable evidence on record. That the confessional statement was not relied upon and that the Magistrate who held T.I.Parade of the accused was not examined, does not constitute ground for acquittal of the convict-appellants. Abdul Hashem @ Bachchu Falar (Md) & others Vs. The Stale- 5, MLR (2000) (AD) 87. ....View Full Judgment

Section 406

The two trucks belonging to the plain­tiffs were seized by the police in con­nection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pend­ing and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count. Abdul Quddus vs Latif Baxvany Jute Mills Ltd. (M. M. Ruhul Amin J)(Civil) 2ADC 938 ....View Full Judgment

Section 406

The two trucks belonging to the plain­tiffs were seized by the police in con­nection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pend­ing and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count......... (11). Abdul Quddus vs Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J) (Civil) 2ADC 938 ....View Full Judgment

Section 406

Paddy purchased by PW 1 was handed over to the appellant—Appellant refused to deliver the sale proceeds and denied the entire transaction—The case is one .of entrustment fully proved by the prosecution— No interference. Mohammad Musa Vs. Kabir Ahmed 41 DLR (AD) 151. ....View Full Judgment

Sections 406 & 420

Quashing of proceedings for alleged breach of trust and cheating: Money claims not the outcome of a particular transaction but arose after year—end accounting following regular business between the parties. If on settlement of accounts at the end of a period some money falls due to one party from the other party and the other party fails to pay the dues, such liability cannot be termed criminal liability. Allegation that dues were allowed to accrue dishonestly, neither attract an offence under section 420 nor under section 406 or under any other section. The whole allegation in complaint petition, even if true, cannot from basis of any criminal proceeding. The proceedings are quashed. Syed Ali Mir. Vs. Syed Omar Ali 42 DLR (AD) 240. ....View Full Judgment

Sections 406 & 420

Question of offence of breach of trust and cheating—Business transactions were going on between the complainant and the accused for a long time relating to supply of fish and the latter made payments in parts. A balance amount claimed by the complainant was not agreed on and the accused refused to pay it. This refusal to pay the balance does not constitute any criminal offence under sections 406/420 Penal Code. Islam Ali Mia Vs. Amal Chandra Mondol 45 DLR (AD) 27. ....View Full Judgment

Sections 406/420

Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial deception has also been alleged. The High Court Division rightly quashed the proceeding. Rafique (Md) vs Syed Morshed Hossain and another 50 DLR (AD) 163 ....View Full Judgment

Section 406

In order to sustain conviction under section 406 of the Penal Code there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged and in the instant case the petitioner though took the loan to set up the machine from the Krishi Bank out never repaid the amount remaining the dues to be unadjusted, rather disposed of the mortgaged machine without the permission of the Bank. Md. Kalimullah Topadar Vs. The State & Anr 11 BLT (AD)-128 ....View Full Judgment

Sections 406 and 420

The question of offence of cheating, whether arises when there is nothing to show that any entrustment of property was made to the accused?
The question of offence of the cheating does not arise (in the instant case) as there is nothing to show that the accused has dishonestly induced the complainant to sell the fish to him on credit. There is nothing to show that any entrustment of the fish was made to the accused for sale of fish on credit according to the direction of the person making the entrustment Md. Islam Ali Mia alias Md.Islam Vs. Ama! Chandra Mondal and another, 13BLD (AD)28 ....View Full Judgment

Sections 406/407 and 408

Value of statement of who was not examined in the case as a witness in accordance with law–
The Appellate Division observed that the High Court Division set aside concurrent findings of fact by placing reliance on the statement of a witnesses, who was not examined in the case as a witness in accordance with law, in disregard and derogation of the evidence on record and as a result, there has been a grave failure of justice. .....Md. Abdul Awal =VS= Md. Abdul Barek & another, (Criminal), 2016-[1 LM (AD) 492] ....View Full Judgment

Section 406/420:

It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant. .....Sree Gopal Chandra Barman =VS= Md. Nasirul Hoque, (Criminal), 2016-[1 LM (AD) 495] ....View Full Judgment

Sections 406 & 420

Unless the auditor under section 53 of the Wakf Ordinance held that a Mutwalli was guilty of breach of trust it would not make out a case of breach of trust on the vague allegations as to his failure to disburse the dues due to the beneficiaries. Nazrul Islam Mollick vs Khowaj Ali Biswas and another 4 BLC (AD) 239. ....View Full Judgment

Sections 406/420

From a plain reading of the petition of complaint it is clear that the initial intention of cheating and the elements of criminal breach of trust have, very well, been alleged therein and, as such, on the face of these allegations it is difficult to say that no prima facie case has been alleged to have been committed by the petitioners under sections 406/420 of the Penal Code. The impugned judgment and order of the High Court Division do not suffer from any illegality. Seeking leave to appeal without appearing in the High Court Division is disapproved. Habibur Rahman (Md) and another vs State, through the Deputy Commissione, Narayanganj and another 1BLC (AD) 146. ....View Full Judgment

Section 406 and 420

Immigration Ordinance, 1982— Section 23 and 26— Joint trial— Not permissible—
Joint trial of offences under section 406 and 420 of the Penal Code and of section 23 of Immigration Ordinance 1982 by the Special Court is not permissible as the offence under section 23 of the Immigration Ordinance, 1982 is exclusively triable by Special Court while the offence under section 406 and 420 of the Penal Code are triable by the Magistrate. Where ingredients of the offences under section 406 and 420 of the Penal Code and under section 23 of the Immigration Ordinance, are contained in the allegation, prosecution in both the courts for the respective offences are competent. Mosammat Noor Jahan Begum @ Anchuri & another Vs. The State— 2, MLR(1997) (AD) 34. ....View Full Judgment

Section 406

Money taken on hand note is a loan—
When money is taken as loan against hand-note it becomes the property of the loanee and the non­payment thereof does not constitute offence punishable under section 406. Md. Reazuddin Ahmed Vs. The Stale and another— 2, MLR(1997) (AD) 37. ....View Full Judgment

Section 409.

Misappropriation of 8 metric tons of wheat as has not been established beyond reasonable doubt consequently the appellant is entitled to the benefit thereof. Abdul Jalil Sarder vs The Stat (Md Ruhul Amin J')(Criminal) JADC 9 ....View Full Judgment

Section 409, 477A, 109

The Janata Bank Employees Service Regulation, 1995 Rule 28 (1), 49.The Fundamental Rule 29. Reducing the petitioner from the post of Senior Officer to the post of Principal Officer without arrear salary and other attending benefits was illegal and directed the Bank to reinstate the petitioner in his original post with arrear salaries etc. Janata Bank, ors. vs Mr. Khalilur Rahman (Amirul Kabir Chowdhury J) (Civil) 3ADC 81 ....View Full Judgment

Section 409

The order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dis­missal of the respondent No.2 was not legal. Pubali Bank Ltd. vs Chairman, First Labour Court, (Md. Ruhul Amin J) (Civil) 2ADC 12 ....View Full Judgment

Section 409

Allegation was that appellant dishonestly misappropriated 10 bags of powder milk, which was meant for distribution among the poor students—Defence version was that he did not submit any application seeking allotment of relief powder milk nor did he take delivery of them———Question arose as to whether the legality of the conviction on the ground of contradiction and insufficient evidence which necessarily calls for the scrutiny of the evidence is maintainable. HeId—”We have given our anxious consideration to the facts of the case and discrepancy in evidence as to 8 bags or 10 bags and our conclusion is this conviction cannot be sustained. Moslemuddin Talukder Vs State 42 DLR (AD) 103. ....View Full Judgment

Section 409

Appellant deposited the amount for which he was charged for misappropriation—Co— accused having been already released on bail the bail of the appellant should not have been refused—Appeal allowed and appellant allowed to remain on ad—interim bail granted by the Appellate Division. Md. Serajul Hoque Vs. State 42 DLR (AD) 52. ....View Full Judgment

Section 409

Accused appellant was in charge of several stores- from the examination of accused- appellant under section 242 of the Code of Criminal Procedure it transpires that the allegation was of a general nature, namely, misappropriation of various store properties, without specifying from which store the misappropriation took place. But in the examination under section 342 of the Code of Criminal Procedure it is generally stated that while he was store keeper of Chalna Port misappropriation took place in the said store without specifying which one There is therefore lack of uniform evidence that all the five stores then existing at Khalishpur were under the charge of the accused- appellant. P. W. 2 Shafiqur Rahman clearly stated that the accused-appellant was in charge of general store (Shed No. 1) and Cement Store. There is no reliable evidence on record that the accused-appellant was also in charge of Shed No. 2, the mechanical store from where that alleged misappropriation took place-Conviction and sentence passed on the accused- appellant is set aside. Sheikh Abdur Rouf Vs. The State 7 BLT (AD)-249 ....View Full Judgment

Section 409 read with 109

Although High Court Division based its decision in respect of the appellant while dismissing his appeal on the evidence of P.Ws 1,2,3,5 and 6 but from the discussions of the evidence of the said witnesses, as made above, it is seen in fact there is nothing in their evidence to implicate the appellant in the incident alleged by the prosecution and thereupon appellant and others were tried for being involved, as claimed by the prosecution, in the incident i.e. removing or stealing of wheat, misappropriation of some quantity of wheat from the total quantity of wheat lifting for distribution among the VGF card holders and stored in Dahia Government Primary School. Md. Fazar Ali Vs. The State 12 BLT (AD)-167 ....View Full Judgment

Section 409

read with Prevention of Corruption Act, 1947 Section-5(2)
The appellant was given charge of the godoan of the jute seeds who received the same from one Habibur Rahman on 04.04.1983—Held : There may be suspicion against this appellant but suspicion however strong cannot be a ground for holding guilt of an accused. Here is a case where the prosecution half heartedly proceeded with the case. The appellate court failed to notice the gross defects in the case as advanced by the prosecution who have not produced and examined even the cited witnesses most of whom were from department itself. No explanation has also been given for this non-examination—the prosecution failed to prove the charge against this appellant beyond all reasonable doubt Md. Mazibur Rahman Vs. The State 8 BLT (AD)-190 ....View Full Judgment

Section 409

In section 409 of the Penal Code there is no provision for confiscation of property. Yet the Appellate Division refused to consider the prayer of the petitioner at this stage as this point was not specifically raised before the High Court Division. Bibhuti Bushan Talukder Vs The State, 17BLD(AD) 168 ....View Full Judgment

Sections 409/420467/468/471

The Penal Code, 1860
Sections 409/420467/468/471 read with
The Prevention of Corruption Act, 1947
Section 5(2) read with
Code of Criminal Procedure, 1898
Sections 233 & 234
Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is specific allegation of misappropriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropriation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this section is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. .....Bashir Ahmed =VS= DC, Magura, (Criminal), 2017 (2)– [3 LM (AD) 541] ....View Full Judgment

Sections 409/109

The Penal Code, 1860
Sections 409/109 read with
The Prevention of Corruption Act, 1947
Section 5(2) read with
The Emergency Powers Rules, 2007
Rule 15
Re-calling the P.Ws for cross examination–
In our view this observation of the learned Judges of the High Court Division is uncalled for and not contemplated by settled principles of criminal justice. Any individual accused person is liable to answer the charges brought against him and the prosecution is bound to prove the charges levelled against each individual accused beyond reasonable doubt, and hence, no individual can be compelled nor can it be suggested to any accused that he should adopt the cross-examination made on behalf of another accused. Accordingly, the following words-“Re-calling our earlier observation, however, we think that justice will meet to its end if the accused-petitioner exercises option, if thinks so, to adopt the cross-examination on behalf of the other accused-petitioners, specially of Tareq Rahman…………” are hereby expunged. However, for the reasons stated and in view of the discussion above we do not find any illegality in rejecting the accused petitioner’s application for re-calling the witnesses already examined and cross-examined. .....Begum Khaleda Zia =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 353] ....View Full Judgment

Section 409

Sentence—It is a case of temporary defalcation which is a serious offence. The ends of justice will be met in the facts and circumstances of the case if the sentence of fine of each of the appellants is maintained and the substantive sentence is reduced to the period afready undergone as prayed for. Sekander Ali Howlader and others vs State 4 BLC (AD) 116. ....View Full Judgment

Section 409

Both the trial Court as well as the High Court Division believed the evidence of PWs 4-5 that despite repeated reminders and despite the resolution taken by the Upazila Parishad, the petitioner did not submit the completion report of the project even during the trial and, as such, the case of the petitioner has been ended on appreciation on evidence for which it merits no consideration. GM Nawsher Ali vs State 2 BLC (AD) 183. ....View Full Judgment

Sections 409/109

Considering the facts and circumstances of the case the Appellate Division is inclined to take a sympathetic view in the matter of sentence. The conviction of the appellant under sections 409/109 of the Penal Code is maintained but the sentence of RI for two years is reduced to the period already undergone. In lieu of the said reduced sentence the sentence of fine is enhanced to Taka 10,000.00, in default, the appellant shall suffer RI for six months. Jalaluddin Ahmed alias Jalaluddin Ahmed vs State 3 BLC(AD) 216. ....View Full Judgment

Sections 409, 420 and 467

Although on the bainapatra in question a title suit is pending but cognizance of the offence was taken not only under section 467 of the Penal Code but also under sections 409 and 420 of the Penal Code and under section 5(2) of Act II of 1947 and as such the criminal case is not barred under section 195 (1)(c), CrPC. Sadat Ali Talukder (Md) @ Md Sadat Ali vs State & another 4 BLC (AD) 228 ....View Full Judgment

Section 411

Section 411 of the Penal Code provides for punishment of imprisonment or fine or both. In the instant case, the ends of justice will be sufficiently met if the sentence of imprisonment is reduced to the period already undergone and the fine remitted. Nizamuddin Bhuiyan vs State and another 1 BLC (AD) 222. ....View Full Judgment

Section 411

Alteration of sentence—
Even at the revisional or appellate stage the conviction under section 411 of the Penal Code can be altered into one under section 379 in proper case where the charge appears to have been proved beyond doubt. Nizamuddin Bhuiya Vs. The State— 1, MLR (1996) (AD) 246. ....View Full Judgment

Sections 415 and 417

read with
Notaries Public Act [XIX of 1994]
Chapter XVII’ repealing ‘Chapter XVII’ —A drawer can be prosecuted for cheating under section 417 of the Penal Code, the complainant must have to prove the initial deception.
The Appellate Division held that it would not suffice to show that the cheque was dishonoured for want of funds or even that the drawer knew that the funds in the account in which the cheque had been drawn were inadequate when he issued the cheque. It must be shown that he had cheated the payee within the meaning of section 415 of the Penal Code. The act of drawing a cheque in discharge of any debt or liability for payment of goods purchased implies at least three statements as to the state of affairs existing at the time when cheque is drawn. Firstly, that the drawer has an account with the bank in question; secondly, that he had authority to draw on it for the amount shown on the cheque; and thirdly, that the cheque as drawn is a valid one for the payment of that amount, or that in the ordinary course of events the cheque, on future presentation within the period of its validity will be honoured. It does not, however, implies any representation that the drawer has money in the bank which would be sufficient to honour the cheque for, he may either have authority to over-draw, or have an honest intention of paying in the necessary money before the cheque can be presented. The giving of a cheque in lieu of money due with the knowledge that the drawer had no funds with the bank does not amount to an offence of cheating in the absence of any evidence to show that the person to whom the cheque was issued parted with any property or that he did anything which he would not have done had he known that the cheque would be dishonoured, that is to say, the complainant must have to prove the initial deception.
Md. Motaleb Hossain: -Vs.- Abdul Haque Limon and another: (Criminal) 11 ALR (AD) 105-110 ....View Full Judgment

Section 415

The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180. ....View Full Judgment

Section 415

It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating. The intention is to be gathered from the surrounding circumstances. Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD) 78 ....View Full Judgment

Section 420

read with
Negotiable Instruments Act, 1881
Section 138 —Dishonour of a cheque may also be an offence not only under section 138 of the Negotiable Instruments Act but also under section 420 of the Penal Code. To constitute an offence punishable under section 138 an initial intention of cheating need not be established. It is sine qua non for an offence punishable under section 420 of Penal Code.
The Appellate Division held that dishonour of a cheque may also be an offence not only under section 138 of the Negotiable Instruments Act but also under section 420 of the Penal Code. To constitute an of-fence punishable under section 138 an initial intention of cheating need not be established. It is sine qua non for an offence punishable under section 420 of Penal Code. The following are the essential ingredients of an offence under section 420 of the Penal Code:
(a) there should be fraudulent or dishonest inducement of a person by deceiving him;
(b) the person so induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or
(c) the person so induced to do anything which he would not do or omit if he were not so deceived, and
(d) in cases covered by second part of clause (a), the act or omission should be one which caused or was likely to cause damage or harm to the person induced in body, mind or property.
For an offence of cheating there must be dishonest or fraudulent misrepresentation, that is to say, deception and inducement of the person deceived to part with the property must be established.
Md. Motaleb Hossain: -Vs.- Abdul Haque Limon and another: (Criminal) 11 ALR (AD) 105-110 ....View Full Judgment

Section 420

Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act. State vs Md Iqbal Hossain and others 48 DLR (AD) 100. ....View Full Judgment

Section 420

Transfer of 15 acres of land to the complainant prior to another transfer to a subsequent transferee was not fraudulent or dishonest transaction within the mischief of cheating as defined under Section 415 of the Penal Code. Remedy of the complainant lies in a civil court, the dispute being of a civil nature. Mst. Nurjahan Bibi & Ors. Vs. The State 2 BLT (AD) 139 ....View Full Judgment

Section 420

In the case of the offence punishable for the offence of cheating there are two elements namely deception and dishonest inducement to do or omit to do something. In such a case the complainant or the informant would have to show not only that he was induced to do or omit to do a certain act but this inducement or omission has caused or was likely to cause him some harm or damage in body, mind, reputation or property and these are presumed to be the four cardinal assets] of humanity. For proving the offence under section 420 of the penal Code of prosecution must prove the deception of any person, fraudulently or dishonestly inducing such person to deliver any property to any] person or to consent that any person shall] retain any property and intentionally? inducing that person to do not omit to do anything which he would not do or omit if he were not so deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind,; reputation or property. From the evidence led before the trial court it appears that none of the witnesses deposed that this appellant induced P.W. 2 to execute kabala or to deliver the property to him. It appears that the prosecution has not led any evidence t prove the ingredients of the offence punishable under Section 420 of the Penal Code. The trial court as well as the High Court Division failed to appreciate this aspect of the matter and wrongly held appellant guilty of the offence under Section 420 of the Penal Code. Md. Mohasin Ali @ Mohsin Vs. The State 8 BLT (AD)-210 ....View Full Judgment

Section 420

None of the witnesses has deposed that the appellant induced PW 2 to execute kabala or to deliver the property to him. The prosecution has not led any evidence to prove the ingredient of the offence punishable under section 420 of the Penal Code when the trial Court as well as the High Court Division failed to appreciate this aspect of the matter and wrongly held that the appellant was guilty of the offence under section 420 of the Penal Code. Mohasin Ali (Md) @ Mohsin vs State 5 BLC (AD) 167. ....View Full Judgment

Section 420

The alleged transaction between the complainant and the appellant is clearly and admittedly a business transaction when the appellant had already paid a part of the money under the contract to the complainant, then the failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature and hence the complaint case is quashed. Dewan Obaidur Rahman vs State and another 4 BLC (AD) 167. ....View Full Judgment

Section 427, 506 II

Offence triable by Magistrate and not by village court—
Where in a case an offence triable by the village court is joined with the offence triable by the Magistrate, the case shall be triable by the Magistrate and not by the village Court. Abal Kalam and others Vs. Abu Daud Gazi and another— 4, MLR (1999) (AD) 414. ....View Full Judgment

Sections 436 and 148

Mere plea of right of private defence cannot be a ground for quashing the criminal proceeding, for such plea is to be established by the accused who takes it. A criminal proceeding is liable to be quashed only if the facts alleged, in the First Information Report or complaint petition, even if admitted, do not constitute any criminal offence or the proceeding is barred by any provision of law.
Where disputed facts are involved, evidence will be necessary to determine the issue. The appellants have produced an order of temporary injunction against the complainant’s party .This must be considered along with other evidence during the trial. Their application for quashing the proceedings is found to have been rightly refused by the High Court Division. SM Khalilur Rahman Vs. State 42 DLR (AD) 62. ....View Full Judgment

Sections 441/447

On the facts and circumstances of the case we have not hesitation to hold that the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who despite his protest, carried on the work of construction. So the ingredients of sections 441/447 of the Penal Code have been well established. Mohammad Ali & Ors. Vs. A. F. M. Mazedul Huq khan Lohani & Anr. 8 BLT (AD)-96 ....View Full Judgment

Sections 441/447

Criminal trespass
It provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.
In the instant case the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction. So the ingredients of section 441/447 of the Penal Code have been well-established. Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19BLD (AD)260 ....View Full Judgment

Sections 441/447

The dominant intention of the appellant was to annoy the complainant who was in possession of the case land even though the complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction and hence the ingredients of sections 44 1/447 of the Penal Code have been well established. Mohammad Ali vs Abdul Fazul Mia Md Mazedul Huq and another 4 BLC (AD) 259. ....View Full Judgment

Section 447 & 427

As far as the assessment of evidence is concerned, both the Courts below believed the complainant's case and the High Court Division committed no wrong in accepting the findings of the Court of fact. Causing of mischief having been proved the ingredients of the offence of criminal trespass are also satisfied. It is not correct to say that no criminal action lay merely because the complainant could bring an action in the Civil Court for violation of the order of temporary injunction. The Civil Court's order of injunction having not been disputed, it was no defence to the accused that they were co-sharers in the disputed land and the complainant's wife was not in exclusive possession thereof. Alauddin & Ors Vs. Md. Shah Alam Khan & Anr 7 BLT (AD)-356 ....View Full Judgment

Section 447

Offence of Criminal trespass—
In order to be sustainable the conviction and sentence under section 447 of the Penal Code must satisfy the ingredients enumerated under section 441 and the intention of the accused must be there to cause annoyance or intimidation or insult to the person in possession of the land by the illegal trespass. Mohammad AH Member Vs. Abul Fazal Mia Md. Mazedul Huq and another— 4, MLR (1999) (AD) 373. ....View Full Judgment

Sections 463 & 464

Ante-dating of a document with any of the intentions such as causing damage or injury to a person by way of depriving him of his right already acquired by a kabala constitutes forgery.
Amatutnnessa transferred her entire interest to the appellant by the kabala executed and registered by herself of 18-7-75 (Ext. l) and was thereafter left with nothing for subsequent transfer to anybody, but she executed the subsequent kabala (Ext.4) in favour of her brother accused Syeduzzaman conveying the same land by ante-dating the kabala showing that it had been executed earlier than the appellant's kabala. Execution of the subsequent kabala shows her intention to deprive the appellant of his right already acquired by his kabala which was found to be genuine. "Forgery" means making of a false document with certain intentions, such as to cause damage or injury to a person, to support any claim or title, to commit fraud. Amjad Molla vs Syeduzzaman Molla and others 46 DLR (AD) 17. ....View Full Judgment

Section 466 and 477

read with
The Evidence Act, 1872—
Section 73— Comparing disputed handwritiags by the judges themselves— When permissible—
In a case of forgery where the opinion of the Handwriting Expert is not clear and specific as to the disputed handwritings, the judges are entitled under section 73 of the Evidence Act, to compare the handwritings themselves and on such comparison together with other relevant circumstantial evidence conviction of the accused can well be secured. Raisuddin Mondal (Md) and another Vs. The state— 3, MLR(1998) (AD) 30. ....View Full Judgment

Section 466 and 471

Sentence under both section—
An accused found guilty of the offence under section 466 of the Penal Code can be convicted and sentenced under section 466 but he cannot be sentenced under both sections 466 and 471 of the Penal Code. A public servant making forgery in preparing false order can well be sentenced under section 466 of the Penal Code as well as under section 5(1) of the Prevention of Corporation Act, 1947. Azizul Haque (Md) Vs. The State — 4, MLR (1999) (AD) 215. ....View Full Judgment

Section 467

Making a false document— The maker must dishonestly execute the document with the intention of causing it to be believed that such document was executed by or by the authority of a person by whom or by whose authority he knows that it was not executed. Al-haj Md. Serajuddowlah Vs. State 43 DLR (AD) 198. ....View Full Judgment

Section 467

To secure a conviction for forgery in this case it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused. Showkat Hossain Akanda Chowdhury vs State 50 DLR (AD) 128 ....View Full Judgment

Section 467

A document of transfer may be avoidable ton very many grounds including that it was (executed when the executant was lying ill or under the influence of the person claiming under the document. But to secure a conviction for forgery in a case like the present it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused. Clearly there is no such evidence and the circumstances referred to by the High Court Division may be enough for a Civil Court not to rely on such document but for a conviction for forgery there must be clear evidence as to the above which are the ingredients of the offence. Shawkat Hossain Akanda Chowdhury Vs. The State 6 BLT (AD)-49 ....View Full Judgment

Section 467/109

It is on record that the original forged deed was not produced before the trial court. The certified copy of the disputed deed was marked as Exhibit 12 wherein the name of Md. Sirajul Haque appeared and from this alone it cannot be conclusively concluded that it is this appellant Md. Sirajul Haque who identified a wrong person knowing that Bishnupada Roy was not the executant of the deed. Admittedly the certified copy of the forged deed having been filed there was no scope to examine the signature of appellant No.2 Md. Sirajul Haque. Thus, we hold that there was no legal evidence on record to connect appellant No. 2 Md. Sirajul Haque with the abatement of the forged deed. Mohir Molla & Ors. Vs. The State 7 BLT (AD)-149 ....View Full Judgment

Sections 467, 468, 471

The accused persons not being able to produce anything in support to this alleged auction purchase- Conviction Justified.
In support of auction purchase no rent receipt was produced by this accused person during trial nor was any suggestion made to this effect to the prosecution witnesses. It cannot be said that onus of proof was shifted upon the accused persons. Conviction is as such held justified. Md. Kahar Ali Mondal and Other vs The State 1 BLT (AD)-44 ....View Full Judgment

Section 467 and 471

Reduction of sentence on ground of old age— Point not raised before trial court and appellate court can not be allowed to be raised for the first time before Appellate Division—
The appellate court is competent to reduce the substantive sentence of imprisonment, on ground of old age of the convict-appellant. Once the sentence is reduced by the appellate court on ground of old age of the Convict-Appellant the Appellate Division declined to further reduce the sentence on the same ground. Point not raised before the trial court as well as the appellate court, cannot be raised for the first time before the Appellate Division. Abdul Hye (Moalana) Vs. The State— 3, MLR (1998) (AD) 262. ....View Full Judgment

Section 467 / 471 / 109

Sustainability of the sentence— When evidences are consistent—
Conviction and sentence based on unbroken chain of events supported by consistent evidence on record which are confirmed by the appellate and revisional court can not be interfered with by the Appellate Division when the same does not suffer from any legal infirmity or perversity. Zaidul Hque Vs. The State— 3, MLR(1998) (AD) 260. ....View Full Judgment

Section 467 and 420

Criminal Proceeding is maintainable when the allegations are obviously criminal in nature—
Criminal Proceedings are not precluded merely on the allegations that the dispute is of civil nature when the dispute apparently appears to be criminal in nature. Ibrahim Bepari and another Vs. The State & another— 5, MLR (2000) (AD) 204. ....View Full Judgment

Section 468 and 468/109

It being the definite case of the prosecution that appellant No.3 along with others have executed two Muktipatras in favour of the appellant Nos. 1 and 2 and another containing false statement relating to property leased out to the executants of the Muktipatras and others upon treating the property as vested property to the effect that the said property is the ancestral property of the recipients of the Muktipatras. The undisputed fact is that appellant No. 3 and others have executed the document and that therein they have made some untrue statements regarding the property relating to which they executed the Muktipatras. The documents i.e. Muktipatras having admittedly been executed by the appellant No. 3 and others the same is in no way can be said to have been brought into existence under the circumstances or situations mentioned in Section 464 in the presence whereof a person is said to make a false document." From the ratio of the cases referred to herein over it is seen that it has uniformly been held that making of false statement in a document by the executants thereof does not saddle him with the liability of committing forgery or that of making a false document. Hazi Ibrahim Ali & Ors. Vs. The State 11 BLT (AD)-39 ....View Full Judgment

Sections 469, 500 and 501

The accused is involved in journalism in the ‘The Daily Janakantha’ he published a false and concocted report introduced a baseless story without any proof and thereby, he depraved the goodwill and reputation of the complainant.
If the case was frivolous one the accused-petitioner could deny the allegations imputed against him by cross-examining the prosecution witnesses and also by examining witnesses in support of his defence case but he failed to do so. The accused-petitioner also did not make any attempt to prove that the news was correct by adducing witnesses.
The Appellate Division having gone through all the three judgments, the Appellate Division is of the view that the petitioner was rightly convicted under section 501 of the Penal Code. Having considered all aspects of the case, the Appellate Division is of the view that the ends of justice would be met if the period of sentence imposed upon the petitioner is reduced to the period that he had already undergone in the jail custody. The accused-petitioner, will, however, have to pay the fine imposed upon him. Accordingly, this criminal petition is disposed of and the judgment and order passed by the High Court Division is modified to the extent that the sentence of imprisonment imposed upon the accused-petitioner is reduced to the period which he has already undergone in jail custody but he will have to pay the fine of Tk. 10,000/- (ten thousand), in default, to suffer rigorous imprisonment for 10 (ten) days more.
Md. Zahangir Alam Shaheen -Vs.- Advocate Md. Abu Tayab and another (Criminal) 13 ALR (AD) 179-180 ....View Full Judgment

Section 471

The Appellate Division held that One of the allegation made in the F. I. R. of the case in question is that this accused-respondent along with others created false resignation letter by forging signature of the appellant and submitted that to the Registrar of the Joint Stock Companies and Firms. The High Court Division though observed that this allegation attracted section 471 of the Penal Code but quashed the proceeding of this case on the ground that this very allegation was made by this appellant in an earlier case, the Appellate Division held that the said observation of the High Court Division is not sustainable in law.
Ms. Ok Kyung Oh-Vs.-Mr. Bo-Sun Park and another 6 ALR (AD) 2015 (2)142 ....View Full Judgment

Section 471

For the offence under section 471 of the Penal Code an accused can be punished as provided in section 465 of the Penal Code up to 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah vs State 50 DLR (AD) 96 ....View Full Judgment

Section 471

The High Court Division is palpably wrong in holding that when an accused is convicted and sentenced under section 466 he cannot again be convicted and sentenced under section 471 of the Penal Code. In the present case it has been proved that the recall order was used by Nurun Nahar Begum in getting Khijiruddin released from the Thana. The accused-petitioner was certainly an abettor in so far as section 471 of the Penal Code is concerned. Azizul Hoque (Md) vs State 51 DLR (AD) 216 ....View Full Judgment

Section 471

The accused petitioner was Bench Assistant in the Court of Thana Magistrate Kurigram. In that Court, a Certificate Case was started against Khijir Uddin and on the basis of the process issued by the court in the case Khijir Uddin was arrested. After his arrest his wife Nurun Nahar Begum came to the Court of the Magistrate and talked to the accused petitioner and handed over Tk 3,093/- to him for depositing the money in the Certificate case. The accused petitioner after accepting the amount prepared a recall order and gave a photocopy of that order to Nurun Nahar. Khijir Uddin got released from the Thana on the basis of that falsi order-Held: In the present case it has been proved that the recall order was used bm Nurun Nahar Begum in getting Khijir Uddul released from the Thana. The accused petitioner was certainly an abettor in so far as Section 471 of the Penal Code is concerned. Md. Azizul Haque Vs. The State 7 BLT (AD)-121 ....View Full Judgment

Section 471

For the offence under section 471 of the Penal Code an accused can be punished, as provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah Vs The State, 17BLD(AD)170 ....View Full Judgment

Section 471 and 465

No independent sentence can be passed under section 471— No sentence in excess of the limit prescribed—
Section 471 does not prescribe any sentence independently. It is dependent upon section 465 which prescribes sentence of either description for a term which may extend to two years or with fine. No sentence in excess of the limit as provided under section 465 can be awarded under section 471 of the Penal Code. Abul Hossain Mollah alias Abu Mollah Vs. The Slate— 2, MLR(1997) (AD), 332. ....View Full Judgment

Section 482 and 486

Lump sentence improper—
Finding the accused guilty under sections 482 and 486 and awarding of lump sentence for both offences are improper and not sustainable in law and as such the sentence impugned is modified. Hazi Oziullah and another Vs. State— 1, MLR (1996) (AD) 139. ....View Full Judgment

Section 488

Cosharer out of possession can not enter by breaking lock—
The accused has no legal right to enter into the room by breaking the lock under occupation of the informant even though he is a cosharer of their ancestral property. When the conviction and sentence is well based on consistent evidence, the same does not call for any interference. Abu Md. Sayem @ Taslim Vs. The State— 4, MLR (1999) (AD) 191. ....View Full Judgment

Section 500

The complainant respondent filed a petition of complaint alleging that being the owner of 10 buses in transport business and was vice president of Chittagong City Auto Owner Association for 18 years from 1969 to 1986. The accused petitioner, the present General Secretary of Chittagong City Auto Owners Association, with malicious intention of defaming him in the eye of the society, published an advertisement in the Daily Azadi falsely alleging that while the respondent was vice president of the said Association, collected subscription from each bus every day and misappropriated about Tk.-l crore within 18 years- Held: The High Court Division came to a finding on the basis of the evidence on record that the respondent as Vice President had no connection with the collection of subscription or maintenance of accounts. He was simply to preside over the meeting of the Association in the absence of the President. The High Court Division also found that the impugned publication was made with the malicious intention of defaming the respondent in the eyes of society- We do not find any ground for interference. A. K. M. Jahangir Vs. Haji Munshi Meah 5 BLT (AD)-184. ....View Full Judgment