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.
|
International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another |
4 BLC (AD) 255 |
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.
|
Sheikh Abdus Sabur Vs. Returning Off leer |
41 DLR (AD) 30 |
Section 21
|
Penal Code, 1860
Section 21 r/w
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
|
Bangladesh Biman Airlines Limited and others -Vs.- Captain Mir Mazharul Huq and others |
12 ALR (AD) 122 |
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.
|
International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another |
4 BLC (AD) 255 |
Section 30
|
The Evidence Act, 1872
Section 30
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Section 35A
Sentence of death is commuted to imprisonment for life–– The provision
of Section 30 is not conclusive for the reason that only if the Court feels
the confession is corroborated with other materials on record, then that
can be used against the co-accused and in that situation section 30 of the
Evidence Act will come into play. The confession of the co-accused is not
the substantive piece of evidence and that it can only be used to confirm
the conclusion drawn from other evidence in a criminal trial–– It
appears from the post-mortem report that the victim received as many as 10
injuries. Although the murder had been committed in a premeditated and
calculated manner with extreme cruelty and brutality, it is difficult to
say conclusively as to whose assault the victim died. The appellants Iqbal
Sheikh, Md. Dawlat Fakir and Firoz Mollah have been languishing in death
cell for more then 12 years. No absolute and unqualified rule can be laid
down that in every case in which there is long delay in the execution of
death sentence, the sentence must be substituted by life imprisonment.
However, considering the facts and circumstances of the case, particularly,
previous quarrel between the convicts Iqbal and Zaziron with the victim and
that the nature of the offence, the diverse circumstances attended upon it,
its impact upon the contemporary society, Appellate Division is of the view
that ends of justice will be met if the sentence of death is commuted to
one of imprisonment for life. .....Dawlat Fakir(Md.) =VS= The State,
(Criminal), 2022(2) [13 LM (AD) 413]
....View Full Judgment
|
Dawlat Fakir(Md.) =VS= The State |
13 LM (AD) 413 |
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
|
Shahriar Rashid Khan ors. vs Bangladesh ors. |
2 ADC 181 |
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
|
Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case) |
9 LM (AD) 386 |
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.
|
Chand Mia Vs. State |
42 DLR (AD) 3 |
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.
|
State Vs. Montu |
44 DLR (AD) 287 |
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.
|
State Vs. Montu |
44 DLR (AD) 287 |
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.
|
Amar Kumar Thakur Vs. State |
40 DLR (AD) 147 |
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.
|
Amar Kumar Thakur Vs. State |
40 DLR (AD) 147 |
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.
|
Abdus Samad Vs. State |
44 DLR (AD) 233 |
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.
|
Abdus Samad Vs. State |
44 DLR (AD) 233 |
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.
|
Abdus Samad Vs. State |
44 DLR (AD) 233 |
Section 34
|
International Crimes Tribunals Act, 1973
Section 4(1) r/w
The Penal Code, 1860
Section 34
A plain reading of section 4(1) of the Act, 1973 suggests that for
commission of any offence by more than one person will be deemed that each
of such person is liable for the offence. This section 4(1) and section 34
of the Penal Code are cognate in nature. Where a criminal offence is
committed by several persons in furtherance of common intention of all,
each of such person is liable for that offence in the same manner as if it
were done by him alone. (Para-201); .....Mir Quasem Ali =VS= The Chief
Prosecutor, ICT, Dhaka, [2 LM (AD) 364]
....View Full Judgment
|
Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka |
2 LM (AD) 364 |
Section 34
|
The Penal Code, 1860
Section 34 r/w
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
|
State =VS= Dafader Marfoth Ali Shah & ors. |
4 LM (AD) 430 |
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
|
State =VS= Dafader Marfoth Ali Shah & ors. |
4 LM (AD) 430 |
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
of the common intention of all.
Khalil Mia vs State 4 BLC (AD) 223.
|
Khalil Mia vs State |
4 BLC (AD) 223 |
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.
|
Abdus Samad Vs. The State |
44 DLR (AD) 233 |
Section 34
|
Penal Code, 1860
Section 34:
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), 5 SCOB [2015] AD 1
....View Full Judgment
|
State Vs. Dafader Marfoth Ali Shah & ors |
5 SCOB [2015] AD 1 |
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
|
Prof. Dr. Motior Rahman =VS= The State & another |
1 LM (AD) 587 |
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 & anr,
(Criminal), 3 SCOB [2015] AD 1
....View Full Judgment
|
Prof. Dr. Motior Rahman vs. The State & anr |
3 SCOB [2015] AD 1 |
Sections 45 ,53 , 57 & 302
|
The Constitution of Bangladesh, 1972
Article 49 read with
The Code of Criminal Procedure, 1898
Sections 35A & 401 read with
The Penal Code, 1860
Sections 45 ,53 , 57 & 302 read with
The Bengal Jail Code, volume 1(Part I)
Chapter XXI Rule 751 (f)
End of convicts life as the alternative to death sentence can only be
exercised by the High Court Division and this court and not by any other
inferior tribunal or the executive. Accordingly, we conclude our opinion as
under:-
(1) A sentence of death awarded to an offender under section 302 of the
Penal Code is the rule and life imprisonment is an exception. The court may
commute death sentence to life imprisonment of a prisoner on extenuating
circumstances and in that case it must assign reasons therefor.
(2) Life imprisonment within the meaning of section 53 read with section 45
of the Penal Code means imprisonment for rest of the life of the convict.
(3) If the High Court Division or this court commutes a sentence of death
to imprisonment for life and direct that the prisoner shall have to suffer
rest of his natural life, such type of cases would be beyond the
application of remission.
(4) Section 57 of the Penal Code is only for the purpose of working out the
fractions of the maximum sentence fixed for the principal offence, that is
to say, if such provision is not made, it would have been impossible to
work out the fractions of an indefinite term.
(5) Remission contained in Chapter XXI of the Bengal Jail Code, volume 1
(Part I) are administrative instructions regarding various remissions.
(6) If an offender pleads guilty at the initial stage of the trial of the
case in respect of an offence punishable with death or imprisonment for
life, the court/tribunal shall take lenient view on the question of
awarding sentence, but in such cases, the court shall ascertain as to
whether the offender pleading guilty upon understanding the offence charged
with against him before accepting such plea. Provided however that the
court is not bound to accept all pleas of guilty and award the minimum
sentence.
(7) In exercise of power under article 49 of the constitution the President
has power to grant pardon, reprieves and respite and to remit, suspend or
commute any sentence even after the commutation of sentence by this court
or the High Court Division. .....Ataur Mridha =VS= The State, (Criminal),
2017 (2)– [3 LM (AD) 513]
....View Full Judgment
|
Ataur Mridha =VS= The State |
3 LM (AD) 513 |
Sections 45, 53, 55, 57
|
The Penal Code, 1860
Sections 45, 53, 55, 57 and
The Code of Criminal Procedure
Section 35A
Imprisonment for life 30 years– The review petition is disposed of with
the following observations and directions by majority decision:
1. Imprisonment for life prima-facie means imprisonment for the whole of
the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment for 30 years
if sections 45 and 53 are read along with sections 55 and 57 of the Penal
Code and section 35A of the Code of Criminal Procedure.
3. However, in the case of sentence awarded to the convict for the
imprisonment for life till his natural death by the Court, Tribunal or the
International Crimes Tribunal under the International Crimes (Tribunal)
Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the
benefit of section 35A of the Code of Criminal Procedure.
Considering the facts and circumstances, the sentence awarded to the review
petitioner is modified to the extent that he is sentenced to suffer
imprisonment for life and to pay fine of taka 5000/-, in default, to suffer
rigorous imprisonment for 2(two) months more. (Majority view: Per Hasan
Foez Siddique, J, Author Judge). ...Ataur Mridha =VS= The State,
(Criminal), 2021(1) [10 LM (AD) 527]
....View Full Judgment
|
Ataur Mridha =VS= The State |
10 LM (AD) 527 |
Section 45
|
The condemned prisoner has suffered in the condemned cell for over 23 years
and thus the length of period can be taken as one of the reasons to commute
the sentence of death to one of imprisonment for life. In the facts and
circumstances discussed above, we are of the view that ends of justice will
be sufficiently met if the sentence of death imposed upon convict condemned
prisoner Moksed is commuted to one of imprisonment for life. We are of the
view that the law as enunciated in section 45 of the Penal Code is such
that the sentence of life signifies the whole of the prisoner’s natural
life. He will, nevertheless, get whatever benefit that the law affords to
him under the provisions of the Code of Criminal Procedure, Prison Act and
Jail Code. ...Tutul =VS= The State, (Criminal), 2021(1) [10 LM (AD) 610]
....View Full Judgment
|
Tutul =VS= The State |
10 LM (AD) 610 |
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
|
Ataur Mridha =VS= The State |
3 LM (AD) 513 |
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
|
Rokia Begum =VS= The State |
1 LM (AD) 571 |
Sections 45 and 53 r/w sec. 55 & 57
|
Acid Aparadh Damon Ain, 2002
Section 5(Ka)
Penal Code, 1860
Sections 45 and 53 r/w sec. 55 & 57
Code of Criminal Procedure, 1898
Section 35A
International Crimes (Tribunal) Act, 1973
Section 20(2)
Imprisonment for life— The trial Court on proper assessment of the
evidences as well as other materials on record convicted the petitioner and
sentenced him death penalty. The High Court Division as well as this
Division on proper scrutiny upheld the judgment and order of conviction and
sentence passed by the trial Court. Appellate Division does not find any
error of law apparent on the face of the record in the impugned judgment
passed by this Division and as such the same does not call for
interference. It has been held in the case of Ataur Mridha Vs. State
reported in 73 DLR(AD) 298 that-
“1. Imprisonment for life prima facie means imprisonment for the whole of
the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment for 30 years
if sections 45 and 53 are read along with sections 55 and 57 of the Penal
Code and section 35A of the Code of Criminal Procedure.
3. However, in the case of sentence awarded to the convict for the
imprisonment for life till his natural death by the Court, Tribunal or the
International Crimes Tribunal under the International Crimes (Tribunal)
Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the
benefit of section 35A of the Code of Criminal Procedure. (underlines
supplied by us)
Therefore, taking note of the gravity of offence committed by the
petitioner it is justifiable that he shall remain in the jail till the
remaining period of his natural life in the light of the ratio decided in
Ataur Mridha’s case (supra). .....Md. Akbar Ali alias Jelhaque Mondal
=VS= The State, (Criminal), 2024(1) [16 LM (AD) 17]
....View Full Judgment
|
Md. Akbar Ali alias Jelhaque Mondal =VS= The State |
16 LM (AD) 17 |
Sections 45, 53, 55 and 57
|
Penal Code
Sections 45, 53, 55 and 57 with
Sections 35A and 397 of the Code of Criminal Procedure:
If we read Sections 45, 53, 55 and 57 of the Penal Code with Sections 35A
and 397 of the Code of Criminal Procedure together and consider the
interpretations discussions above it may be observed that life imprisonment
may be deemed equivalent to imprisonment for 30 years. The Rules framed
under the Prisons Act enable a prisoner to earn remissions- ordinary,
special or statutory and the said remissions will be given credit towards
his term of imprisonment. (Majority view) (Per Mr. Justice Hasan Foez
Siddique, J) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB
[2021] AD 1
....View Full Judgment
|
Ataur Mridha alias Ataur Vs. The State |
15 SCOB [2021] AD 1 |
Sections 45, 53, 55 and 57
|
In view of the facts and circumstances, the discussion made above the
review petition is disposed of with the following observations and
directions:
1. Imprisonment for life prima-facie means imprisonment for the whole of
the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment for 30 years
if sections 45 and 53 are read along with sections 55 and 57 of the Penal
Code and section 35A of the Code of Criminal Procedure.
3. However, in the case of sentence awarded to the convict for the
imprisonment for life till his natural death by the Court, Tribunal or the
International Crimes Tribunal under the International Crimes (Tribunal)
Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the
benefit of section 35A of the Code of Criminal Procedure. (Summary of the
majority view) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15
SCOB [2021] AD 1
....View Full Judgment
|
Ataur Mridha alias Ataur Vs. The State |
15 SCOB [2021] AD 1 |
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 22½ 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), 4
SCOB [2015] AD 20
....View Full Judgment
|
Rokia Begum Vs. The State |
4 SCOB [2015] AD 20 |
Sections 53 & 54
|
The Code of Criminal Procedure, 1898
Sections 35A & 401 r/w
Penal Code, 1860
Sections 53 & 54
It cannot be applicable in respect of an offence which is punishable with
death– Section 35A of the Code of Criminal Procedure is not applicable in
case of an offence punishable with death or imprisonment for life. An
accused person cannot claim the deduction of the period in custody prior to
the conviction as of right. It is a discretionary power of the court. It
cannot be applicable in respect of an offence which is punishable with
death. Though the word 'only' is used in section 35A, the legislature
without considering section 401 of the Code of Criminal Procedure and
section 53 of the Penal Code has inserted the word `only' but the use of
word 'only' will not make any difference since under the scheme of the
prevailing laws any remission/reduction of sentence has been reserved to
the government only. .....Ataur Mridha =VS= The State, [3 LM (AD) 513]
....View Full Judgment
|
Ataur Mridha =VS= The State |
3 LM (AD) 513 |
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
|
Ataur Mridha =VS= The State |
3 LM (AD) 513 |
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
|
Ataur Mridha @ Ataur -Vs.- The State |
9 ALR (AD) 162 |
Sections 57, 302/109
|
The Explosive substances Act
Sections 3/6 r/w
The Special Powers Act
Section 25D r/w
The Penal Code
Sections 57, 302/109
Abetment of the offence– We are satisfied that accused respondent Amjad
Ali @ Md. Hossain @ Babu has been rightly found guilty by the special
tribunal as well as by the learned Sessions Judge for abetment of the
offence. However, since he did not directly participate either in the
explosion of bomb or in the murder, the learned Sessions Judge is not
justified in awarding him the death sentences in both the charges. As per
our sentencing rules which provide that the abettor should not be equated
with the principal offender so far as regards awarding the sentence
although there is no legal bar to award the same sentence. We convert the
conviction of the accused respondent Mohammad Hossain to one under sections
3/6 of the Explosive substances Act read with section 25D of the Special
Powers Act and sentence him to imprisonment for life. We also award him
sentence of imprisonment for life under sections 302/109 of the Penal Code.
It should be borne in mind that imprisonment for life within the meaning of
section 57 of the Penal Code means imprisonment for the whole of the
remaining period of the convicted person's natural life. ...State =VS=
Amjad Ali @ Md Hossain @ Babu, [10 LM (AD) 408]
....View Full Judgment
|
State =VS= Amjad Ali @ Md Hossain @ Babu |
10 LM (AD) 408 |
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
|
State =VS= Abu Hanifa @ Hanif Uddin |
9 LM (AD) 262 |
Section 84
|
Section 84 of the Penal Code and plea of unsoundness of mind;
On a plain reading of the aforesaid provisions of law and 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.
…State Vs. Abu Hanifa @ Hanif Uddin, (Criminal), 13 SCOB [2020] AD 17
....View Full Judgment
|
State Vs. Abu Hanifa @ Hanif Uddin |
13 SCOB [2020] AD 17 |
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
|
Khandoker Saiful Islam vs State |
50 DLR (AD) 126 |
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
|
Khandker Saiful Islam Vs. The State |
6 BLT (AD) 84 |
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
|
State =VS= Dafader Marfoth Ali Shah & ors. |
4 LM (AD) 430 |
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.
|
The State Vs. Khondaker Md. Moniruzzaman |
1 MLR (AD) 369 |
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.
|
Ashrafuddin Sekandar (Major Rtd.) and others Vs. The State |
3 MLR (AD) 164 |
Section 107, 109 and 120B
|
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 in pursuance 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), 5 SCOB [2015] AD 1
....View Full Judgment
|
State Vs. Dafader Marfoth Ali Shah & ors |
5 SCOB [2015] AD 1 |
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
|
Hussain Mohammad Ershad, former President Vs. The State |
14 BLD (AD) 178 |
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
|
State =VS= Dafader Marfoth Ali Shah & ors. |
4 LM (AD) 430 |
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
|
Anti-Corruption Commission =VS= Tasmima Hossain |
3 LM (AD) 9 |
Section 109
|
The Penal Code, 1860
Section 109 r/w
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
|
Begum Khaleda Zia =VS= Anti-Corruption Commission |
3 LM (AD) 177 |
Section 109
|
Anti-Corruption Commission Act, 2004
Section 27 r/w
The Prevention of Corruption Act, 1947
Sections 5(1)(e) and 5(2)
The Penal Code
Section 109
From the testimonies it is luminous that the evidence of prosecution are so
incompatible, improper and unreasonable which are not only reprehensible,
rather, full of dissonance and totally blameworthy. The prosecution case,
therefore, cannot be believable.
Carefully gone through the judgment of the trial Court and the judgment of
the High Court Division. On perusal of the judgment of the High Court
Division, we find that the High Court Division has elaborately discussed
the evidences and considered the facts and circumstances of the case,
recorded the acquittal in accordance with law. This petition is dismissed.
...Anti-Corruption Commission =VS= Md. Lutfor Rahman, [10 LM (AD) 510]
....View Full Judgment
|
.Anti-Corruption Commission =VS= Md. Lutfor Rahman |
10 LM (AD) 510 |
Section 109
|
Anti-Corruption Commission Act, 2004
Section 27(1) r/w
The Penal Code
Section 109
The defence questioned the legality of the sentence of the convict
petitioner on the ground that the initiation of proceeding against him is
illegal and as such all subsequent proceedings are also illegal.
The defence took another plea that the authority did not assess the market
value of furniture, seized from his house, properly and rather the
assessment has been made on the basis of the market rate prevailing after
14 years. It appears that the assessment of such furniture has been made by
the engineer of Public Works Department (PWD) who is the authorised and
appropriate person to assess the market value of that furniture.
The defence took another plea that during the pendency of Rule Nisi issued
in Writ Petition No. 1190 of 2008, proceeding of the criminal case is
illegal, but the defence failed to produce any stay order obtained in that
Rule Nisi in proceeding of such case. As a result the submission of the
learned advocate for the defence also does not find any legal basis.
Findings and decision arrived at by the High Court Division being based on
proper appreciation of fact and law the same do not call for any
interference by this Division. This criminal petition for leave to appeal
is dismissed. …Mohammad Osman Gani =VS= The State, [8 LM (AD) 354]
....View Full Judgment
|
Mohammad Osman Gani =VS= The State |
8 LM (AD) 354 |
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
|
Anti-Corruption Commission =VS= Barrister Mir Mohammad Helal Uddin |
9 LM (AD) 681 |
Section 109
|
The Code of Criminal Procedure, 1898
Section 561A
The Anti-Corruption Commission Act, 2004
Section 26(2), 27(1) r/w
The Penal Code, 1860
Section 109
The Emergency Power Rules, 2007
Section 15(D)(5)
Appellate Division is of the view that the petitioner was a fugitive in the
eye of law when she filed the application under section 561A of the Code of
Criminal Procedure. Direction of the High Court Division in the concluding
portion of the impugned judgment and order that: “However, since at the
time of issuing the Rule this Court dispensed with the appearance of the
petitioner, she should be allowed to appear before the concerned Court
without any hindrance. The petitioner is directed to appear before the
concerned Court within 08(eight) weeks from the date of taking cognizance
of the offence, if any so that she can defend herself in accordance with
law.” -is outside the purview of law and hence struck off. Thus the
impugned judgment and order is modified with the above observation.
Accordingly, the criminal petition for leave to appeal is dismissed.
.....Dr. Zubaida Rahman, wife of Tarique Rahman =VS= The State, (Criminal),
2022(1) [12 LM (AD) 523]
....View Full Judgment
|
Dr. Zubaida Rahman, wife of Tarique Rahman =VS= The State |
12 LM (AD) 523 |
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), 5 SCOB [2015] AD 1
....View Full Judgment
|
State Vs. Dafader Marfoth Ali Shah & ors |
5 SCOB [2015] AD 1 |
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
|
Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case) |
9 LM (AD) 386 |
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
|
Shaiakh Abdur Rahman & Ors Vs. The State |
15 BLT (AD) 326 |
Sections 120B and 302/34
|
The Evidence Act, 1872
Section 10 and
The Penal Code, 1860
Sections 120B and 302/34
Well settled principle that the confession of a co-accused cannot be used
against another co-accused until strongly corroborated by other evidence–
The length of period spent by a convict in the condemned cell as an
extenuating ground sufficient for commutation of sentence of death– The
prosecution tried to prove the above mentioned conduct of
convict-appellants Sirajul Islam, Sohel and Rajib that lead us to conclude
that the convict Sirajul Islam, Sohel and Rajib with Zamir conspired to
kill the deceased Aktar Hossain and all of his family members. In case of
conspiracy the conspirators conspire among themselves, there remains no eye
witness. They make design and prepare plan to execute the same and in
furtherance of their conspiracy and common intention execute the plan. In
the instant case, the motive, behavior of the convict-appellants are very
much clear to execute the alleged killing in a planned way and as per
Section 10 of the Evidence Act, 1872 the convict-appellants Sirajul Islam,
Sohel and Rajib are guilty for committing the occurrence. ...Zamir =VS= The
State, [10 LM (AD) 647]
....View Full Judgment
|
Zamir =VS= The State |
10 LM (AD) 647 |
Section 120B
|
Criminal conspiracy– This Court observed that a conspiracy is a matter of
inference deduced from certain criminal acts of the accused done in
pursuance of an apparent criminal purpose common between them. A criminal
conspiracy consist not merely intention of two or more, but in the
agreement of two or more to do an unlawful act or to do a lawful act by
unlawful means. When two agree to carry it into effect the very plot of act
itself, and the act of each of the parties capable of being enforced, if
lawful, possible if for a criminal object or for the use of criminal means.
The elements of criminal conspiracy are (a) an agreement between two or
more persons, (b) to do an illegal act, or (c) to do a legal act by illegal
means, and (d) an overt act done in pursuance of the conspiracy. A charge
of criminal conspiracy for an offence under section 120B of the Penal Code,
the prosecution need not prove that the perpetrators expressly agree to do
or caused to be done the illegal act; the agreement may be proved by
necessary implication. ...Major Md. Bazlul Huda (Artillery) =VS= The State,
(Criminal), 2021(1) [10 LM (AD) 581]
....View Full Judgment
|
Major Md. Bazlul Huda (Artillery) =VS= The State |
10 LM (AD) 581 |
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
|
State =VS= Dafader Marfoth Ali Shah & ors. |
4 LM (AD) 430 |
Sections 120B and 302/109/34
|
Penal Code, 1860
Sections 120B and 302/109/34
Evidence Act, 1872
Section 8
Criminal conspiracy–– The offence of criminal conspiracy consists in a
meeting of minds of two or more persons for agreeing to do or causing to be
done an illegal act or an act by illegal means, and the performance of an
act in terms there of. If pursuant to the criminal conspiracy the
conspirators commit several offences, then all of them will be liable for
the offences even if some of them had not actively participated in the
commission of the offences.
In the case of Major Md Bazlul Huda (Artillery) and others-Vs-State, 62 DLR
(AD) 175, it has held that “In order to constitute the offence of
conspiracy, there must first 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 in order to the doing of that thing. It is not
necessary that the abettor should concert the offence with the person who
commits it. It is sufficient if he engages in the conspiracy in pursuance
of which the offence is committed. Therefore, I find that each conspirator
plays his separate part in one integrated and united effort to achieve the
common purpose. The cumulative effect of the proved circumstances should be
taken into account in determining the guilt of the accused rather than
adopting an isolated approach to each of the circumstances. Each one is
aware that he has a part to play in a general conspiracy though he may not
know all its secrets or the means by which the common purpose is to be
accomplished. The common intention of the conspirators is then is to work
for the furtherance of the common design.” .....Younus Ali @ Kawser Ahmed
=VS= The State, (Criminal), 2024(1) [16 LM (AD) 561]
....View Full Judgment
|
Younus Ali @ Kawser Ahmed =VS= The State |
16 LM (AD) 561 |
Section 120A and 120B
|
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), 5 SCOB [2015]
AD 1
....View Full Judgment
|
State Vs. Dafader Marfoth Ali Shah & ors |
5 SCOB [2015] AD 1 |
Sections 143/448/385 and 506
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 10 r/w
Penal Code [XLV OF 1860]
Sections 143/448/385 and 506
A case which is not proved due to lack of evidence does not necessarily
mean that it was false.
The Appellate Division observed that it must be realized that there is an
ocean of difference between a case being false and a one being not proved
due to lack of evidence. A case which is not proved due to lack of evidence
does not necessarily mean that it was false. Moreover, the High Court
Division has observed that on the selfsame matter the complainant
petitioner obtained a money decree by way of compensation and there was no
reason or satisfactory ground to admit the complainant’s appeal and,
accordingly, dismissed the appeal summarily. Appellate Division does not
find any reason to interfere with the decision of the High Court Division.
Accordingly, petition is dismissed. .....Md. Shibli =VS= Salma Sultana
Hashi & another, [1 LM (AD) 545]
....View Full Judgment
|
Md. Shibli =VS= Salma Sultana Hashi & another |
1 LM (AD) 545 |
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.
|
Saidur Rahman Vs. State |
40 DLR (AD) 281 |
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
|
Ahad Ali Miah & Ors Vs. Mushtahid Alam & Ors |
2 BLT (AD) 3 |
Sec. 147-149/283/325/332/.... & 121(A)
|
Ansars Act, 1948
Section 5
Ansar Rules, 1948
Rule 17
Penal Code, 1860
Sections 147/148/149/283/325/332/353/243/427/435/380/109 & 121(A)
The government may take measure to take back the innocent writ petitioners
in Battalion Ansars after proper scrutiny, if they are found not guilty of
revolt or ‘Mutiny’–– Embodied Ansars i.e. the respondents work as
auxiliary police force and they are trained and entitled to wield weapons.
Disobedience to the orders of the higher authority breaking the chain of
commands is termed as ‘Mutiny’ which is the highest offence for an
auxiliary police force for which stern punitive action has been taken.
Following the alleged ‘Mutiny’ in 1994 there was exigency to control
the situation and persons involved in the ‘Mutiny’ had been identified
by their controlling officers on the spot and were arrested from the spot
and FIR was lodged.
In a chaotic situation some innocent Ansars might have been implicated in
the offence of ‘Mutiny’ against their will, which could be possible to
find out through proper scrutiny. Thus, it would be wise that after a long
lapse of 25 years the disembodied Ansars should not be reinstated in
Bangladesh Ansar Battalion on wholesale basis without scrutiny. In the said
backdrop, the government may consider to take initiative to take back the
innocent persons in the Battalion Ansars after proper scrutiny, if found
not guilty of revolt or ‘Mutiny’. .....Director General of Ansar and
VDP, Dhaka =VS= Md. Ruhul Amin, (Civil), 2023(1) [14 LM (AD) 167]
....View Full Judgment
|
Director General of Ansar and VDP, Dhaka =VS= Md. Ruhul Amin |
14 LM (AD) 167 |
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
|
The State -Vs.- Ibrahim Mia @ Ibrahim Ali |
13 ALR (AD) 148 |
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.
|
Abdus Samad Vs. State |
44 DLR (AD) 233 |
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.
|
Tayeb Ali Vs. State |
41 DLR (AD) 147 |
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
|
State =VS= Sarafat Mondol @ Mander Mondol |
8 LM (AD) 362 |
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.
|
Bangladesh Vs. Gaisuddin and other |
4 MLR (AD) 29 |
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
|
Md. Jaher Miah. -Vs.- The State |
12 ALR (AD) 67 |
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.
|
Abdus Samad Vs. State |
44 DLR (AD) 233 |
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.
|
Rafiqul Islam Vs. State |
44 DLR (AD) 264 |
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.
|
Abdus Sattar and others vs State |
46 DLR (AD) 239 |
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
|
State Vs. Giasuddin & Ors. |
7 BLT (AD) 108 |
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
|
Haider Ali & Ors Vs. The State |
12 BLT (AD) 196 |
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
|
Rafiqul Islam Vs. The State |
13 BLD (AD) 117 |
Section 161
|
The Penal Code of Bangladesh clearly defines what constitutes bribery.
Section 161 of the Penal Code deals with "Public servant taking
gratification other than legal remuneration in respect of an official act".
Under section 161 of the Penal Code any gratification whatever, other than
legal remuneration, as a motive or reward for doing or forbearing to do any
official act amounts to bribery. Giving anything whose value can be
estimated in money is bribery. Under section 161 three things are necessary
to constitute bribe - (i) the receiver of bribe must be a public servant;
(ii) he must receive or solicit an illegal gratification; and (iii) it must
be received as a motive or reward for doing an official act which he is
empowered to do. There is no need to show, as the respondent No.4 argues
that the bribes paid to State Minister AKM Mosharraf Hossain actually
influenced his decisions to act in favour of Niko. .....Niko Resources (Bd)
Ltd Vs. Professor M. Shamsul Alam & ors, (Civil), 19 SCOB [2024] AD 125
....View Full Judgment
|
Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors |
19 SCOB [2024] AD 125 |
Section 161
|
Stratum Management Services Contract is clearly in violation of section 161
since its stated aim was to make payments to Bangladesh Government
officials for the procurement of Niko's projects in Bangladesh. There is no
need to show additionally, as the respondent No.4 suggests, that these
payments of bribes in fact influenced the Government officials who received
the bribes. If that was the case, no one would be able to show corruption
since one would need to go into the mind of the recipient of the bribe to
determine if that person was influenced by the bribe. .....Niko Resources
(Bd) Ltd Vs. Professor M. Shamsul Alam & ors, (Civil), 19 SCOB [2024] AD
125
Just the act of offering a bribe is an offence, regardless of whether the
official accepts the offer. .....Niko Resources (Bd) Ltd Vs. Professor M.
Shamsul Alam & ors, (Civil), 19 SCOB [2024] AD 125
....View Full Judgment
|
Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors |
19 SCOB [2024] AD 125 |
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.
|
Shahabullah Vs. State |
43 DLR (AD) 1 |
Section 161
|
The Penal Code, 1860
Section 161 r/w
The Prevention of Corruption Act, 1947
Section 5(2)
The High Court Division without application of its judicial mind quashed
the proceedings– When there is conflict between the parent law and this
Rule, the law will prevail over the rules. Rules made under a statue must
be treated for all purposes of construction or obligations exactly as if
they were in the Act and are to be of same effect as if contained in the
Act. The copy of the sanction letter as quoted in the judgment clearly
shows that the Anti-Corruption Commission has accorded sanction for
submission of police report. Therefore, there is no illegality or
impropriety on the part of the learned Special Judge in taking cognizance
of the offences and also in framing charge against the respondent. The High
Court Division without application of its judicial mind quashed the
proceedings. Since charge had already been framed in the case against the
respondent as back as on 26th January, 2009 and about 4(four) years had
elapsed in the meantime, Appellate Division finds it not necessary to
examine the question by granting leave which would unnecessarily delay the
disposal of the case. The reason upon which the High Court Division quashed
the proceeding is apparently contrary to law. The impugned judgment of the
High Court Division is not tenable in law and accordingly, it is liable to
be interfered with. The judgment of the High Court Division is accordingly
set aside. This Division directs the learned Special Judge to proceed with
the case in accordance with law. .....Anti Corruption Commission =VS=
Mohammad Bayazid, (Criminal), 2022(1) [12 LM (AD) 621]
....View Full Judgment
|
Anti Corruption Commission =VS= Mohammad Bayazid |
12 LM (AD) 621 |
Section 161
|
The Penal Code, 1860
Section 161 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
The Code of Criminal Procedure, 1898
Section 561A r/w
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
|
Anti Corruption Commission =VS= Md. Rezaul Kabir |
3 LM (AD) 509 |
Sections 161 and 165A
|
The Code of Criminal Procedure, 1898
Section 498 r/w
Penal Code (XLV of 1860)
Sections 161 and 165A
In respect of bailable offence, the Court cannot exercise any discretionary
power not to enlarge an accused person on bail– The petitioner has been
charged with for offences punishable under sections 161/165(A) of the Penal
Code which are bailable offences. In respect of bailable offence, the Court
cannot exercise any discretionary power not to enlarge an accused person on
bail because the Code of Criminal Procedure does not give the Court any
discretionary power not to enlarge an accused person in respect of bailable
offence on bail. But it does not confer a Court the power to refuse the
prayer for bail since the statute has given power upon the Court to
exercise in favour of the accused person. The judgment of the High Court
Division is set-aside. Be enlarged on bail to the satisfaction of the
Special Judge, Court No. 3, Dhaka pending trial of the case. .....Mia
Nuruddin (Apu) =VS= State & another, [1 LM (AD) 474]
....View Full Judgment
|
Mia Nuruddin (Apu) =VS= State & another |
1 LM (AD) 474 |
Sections 161/109
|
Criminal Law Amendment Act, 1958
Section 10
Emergency Power Rules, 2007
Section 11(2)
The Penal Code, 1860
Sections 161/109
Granting ad-interim bail–– It appears that the High Court Division has
correctly followed the observations made by this Division in Criminal
Appeal No.6 of 2008 in grant¬ing bail to the respondent No.1. ––It
further appears that the appeal could not be disposed of within ninety days
and the respondent has already served out a substantial portion of
sentence. Appellate Division does not find that the judgment and order of
the High Court Division suffers from any infirmity. Accordingly the
petition is dismissed. .....Anti-Corruption Commission =VS= Sigma Huda,
(Criminal), 2023(1) [14 LM (AD) 497]
....View Full Judgment
|
Anti-Corruption Commission =VS= Sigma Huda |
14 LM (AD) 497 |
Section 161
|
Penal Code, 1860
Section 161 read with
Section 5(2) of the Prevention of Corruption Act, 1947 And
Section 561A of the Code of Criminal Procedure, 1898
And
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 & ors, (Criminal), 8
SCOB [2016] AD 144
....View Full Judgment
|
Anti Corruption Commission Vs. Md. Rezaul Kabir & ors |
8 SCOB [2016] AD 144 |
Section 162 and 163
|
We note that section 162 of the Penal Code deals with "Taking
gratification, in order, by corrupt or illegal means, to influence public
servant". Under section 162 of the Penal Code private individuals, such as
Mr. Salim Bhuiyan or Mr. Giasuddin Al Mamoon, taking bribes to influence a
public servant by corruption or illegal means is a crime. Similarly,
section 163 of the Penal Code deals with "Taking gratification, for
exercise of personal influence with public servant". Taking or giving
gratification to private individuals for their personal influence with
public servants is also a crime. Thus, under the laws of Bangladesh there
is no requirement that only direct payments to a Government official can
constitute corruption. It would be sufficient if the gratification is
extracted on a promise of exercise of personal influence with an official,
to bring the offence within the mischief of this section 163 of the Penal
Code. Proof of actual exercise of personal influence with an official is
not necessary. .....Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam &
ors, (Civil), 19 SCOB [2024] AD 125
....View Full Judgment
|
Niko Resources (Bd) Ltd Vs. Professor M. Shamsul Alam & ors |
19 SCOB [2024] AD 125 |
Section 166
|
Administrative Tribunal Act, 1980
Section 10A r/w
Administrative Appellate Tribunals Rules, 1982
Section 7
Constitution of Bangladesh, 1972
Article 102
Penal Code, 1860
Section 166
The execution of the decisions and the orders of the Administrative
Tribunal primarily lies with the Tribunal itself and thereafter, with the
Administrative Appellate Tribunal–Appellate Division is of the opinion
that the respondents cannot avail themselves of the remedy provided under
article 102 of the Constitution for having a direction upon the
Administrative Tribunal to file a complaint under section 166 of the Penal
Code. The High Court Division has not been entrusted with the power of
deciding as to how the decisions and orders of the Administrative Tribunals
will be executed. The execution of the decisions and the orders of the
Administrative Tribunal primarily lies with the Tribunal itself and
thereafter, with the Administrative Appellate Tribunal. The Administrative
Tribunal is quite competent to come to a decision about the mode of
implementation of its own decisions and orders. In case of failure, the
said writ-petitioner-respondent has been given further remedy under section
10A of the Act. ...Government of Bangladesh =VS= Md. Abdul Maleque Miah,
(Civil), 2021(2) [11 LM (AD) 12]
....View Full Judgment
|
Government of Bangladesh =VS= Md. Abdul Maleque Miah |
11 LM (AD) 12 |
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
|
Government of Bangladesh and others: Nazma Majid: -Vs.- Most. Naznin Be¬gum and others |
10 ALR (AD) 241 |
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
|
Abdul Halim Gazi & Bangladesh, Dhaka vs Afzal Hossain |
2 ADC 533 |
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
|
Abdul Halim Gazi vs. Afzal Hossain and others |
4 ADC 195 |
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.
|
State Vs. Abdur Rashid Piada |
40 DLR (AD) 106 |
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.
|
State Vs. Abdur Rashid |
40 DLR (AD) 106 |
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
|
The State Vs. Khandker Zillul Bari |
14 BLT (AD) 91 |
Section 201/403/411
|
Evidence Act, 1872
Sections 3 & 30 r/w
Nari-O-Shishu Nirjatan Daman Ain, 2000
Sections 9(2)/30 r/w
The Penal Code, 1860
Section 201/403/411
Confessional statement suffered from meager and lack of independent
corroboration. So, on the basis of such confession, conviction of the
appellant cannot be sustained in accordance with law– We have discussed
the deposition of the star witnesses of this case thoroughly but we find no
corroboration of the evidences with each other, rather, we find material
contradiction in the testimonies of the P.Ws. with the extra- judicial
confession of the co-accused Mosila and in fact there is no extra-judicial
confession of the condemned appellant. Therefore, the opinion of the High
Court Division does not reflect the real facts and circumstances of the
instant case.
The confession made by a co-accused Mosila in the facts and circumstances
of the instant case cannot be said that it is corroborated by other
evidence and, as such, it cannot be the sole basis of conviction of another
co-accused. The Criminal Appeal No.21 of 2015 is allowed. The Appellant
Saley Akram alias Polash is acquitted from charges levelled against him.
...Saley Akram alias Polash =VS= The State, [10 LM (AD) 360]
....View Full Judgment
|
Saley Akram alias Polash =VS= The State |
10 LM (AD) 360 |
Section 201/403/411
|
The Evidence Act (I of 1872)
Sections 3 & 30 r/w
Nari-O-Shishu Nirjatan Daman Ain, 2000
Sections 9(2)/30 r/w
The Penal Code, 1860
Section 201/403/411
Confessional statement suffered from meager and lack of independent
corroboration. So, on the basis of such confession, conviction of the
appellant cannot be sustained in accordance with law– We have discussed
the deposition of the star witnesses of this case thoroughly but we find no
corroboration of the evidences with each other, rather, we find material
contradiction in the testimonies of the P.Ws. with the extra- judicial
confession of the co-accused Mosila and in fact there is no extra-judicial
confession of the condemned appellant. Therefore, the opinion of the High
Court Division does not reflect the real facts and circumstances of the
instant case.
The confession made by a co-accused Mosila in the facts and circumstances
of the instant case cannot be said that it is corroborated by other
evidence and, as such, it cannot be the sole basis of conviction of another
co-accused. The Criminal Appeal No.21 of 2015 is allowed. The Appellant
Saley Akram alias Polash is acquitted from charges levelled against him.
...Saley Akram alias Polash =VS= The State, (Criminal), 2021(1) [10 LM (AD)
360]
....View Full Judgment
|
Saley Akram alias Polash =VS= The State |
10 LM (AD) 360 |
Section 211
|
The Code of Criminal Procedure, 1898
Sections 195(1)(b) and 476(1)
The Penal Code, 1860
Section 211
False complaint– It is Appellate Division’s view that in the event of a
case under special law, any written complaint can be filed by anyone, since
it is invariably a cognisable offence, but should not be acted upon without
taking proper precautions, as is, for example, required under section
195(1)(b) read with section 476(1) of the Code of Criminal Procedure for a
case to proceed under section 211 of the Penal Code. It is also noted that
the informant of the original case has been left out of the charge by the
Tribunal framing charge only against the witnesses. This Division can only
endorse the view of the High Court Division that prolonging this type of
case any further would be an abuse of the process of the Court. .....A. K.
Azad @Baira Azad =VS= Md. Mostafizur Rahman, (Criminal), 2022(1) [12 LM
(AD) 650]
....View Full Judgment
|
A. K. Azad @Baira Azad =VS= Md. Mostafizur Rahman |
12 LM (AD) 650 |
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.
|
Mowlana Md Yusuf vs State and another |
3 BLC (AD) 171 |
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.
|
Bandez Ali Vs. State |
40 DLR (AD) 200 |
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 Government of the People's
Republic of Bangladesh vs Ashraf Ali and others 46 DLR (AD) 241.
|
State, represented by the Solicitor to the Government of the People's Republic of Bangladesh vs Ashraf Ali and others |
46 DLR (AD) 241 |
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
|
The State Vs. Ashraf Ali and others |
14 BLD (AD) 127 |
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
|
Firoz Ali and another: -Vs.- The State |
10 ALR (AD) 330 |
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.
|
Md. Abdul Majid Vs. State |
40 DLR (AD) 83 |
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.
|
State Vs. Montu |
44 DLR (AD) 287 |
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
|
State Vs. Giasuddin & Ors. |
7 BLT (AD) 108 |
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
|
Nibir Chandra Chowdhury and Anr. Vs. The State |
9 BLT (AD) 272 |
Sections 300, 302/109
|
The Constitution of Bangladesh, 1972
Article 105 r/w
The Penal Code, 1860
Sections 300, 302/109
Review– The learned counsel fails to point out any error of law in the
judgment of this court. We find no merit in these petitions. .....Mufti
Abdul Hannan Munshi =VS= The State, [3 LM (AD) 584]
....View Full Judgment
|
Mufti Abdul Hannan Munshi =VS= The State |
3 LM (AD) 584 |
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
|
Ataur Mridha =VS= The State |
3 LM (AD) 513 |
Sections 300, 302/34
|
In the instant case the victim and others went to plough their land and the
accused appellants being armed with deadly weapons and having form unlawful
assembly went to the place of occurrence and fell upon the victim and
others and having variously injured the victim kill him on the spot.
Therefore the High Court Division rightly dismissed the appeal and upheld
the order of conviction and sentence passed by the learned Additional
Sessions Judge, Laxmipur. Appellate Division finds no substance in this
petition which is accordingly dismissed. .....Mohammad Mostafa alias
Dayemuddin =VS= The State, (Criminal), 2023(1) [14 LM (AD) 255]
....View Full Judgment
|
Mohammad Mostafa alias Dayemuddin =VS= The State |
14 LM (AD) 255 |
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 &
ors Vs State, (Civil), 6 SCOB [2016] AD 70
....View Full Judgment
|
Sohel Dewan & ors Vs State |
6 SCOB [2016] AD 70 |
Section 302
|
Justification for death sentence:
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 preplan 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. There is no reason for
showing any leniency or mercy to this type of offenders who are enemy for
the whole society. So we are unable to accept the submission of the learned
advocate for the condemned prisoners to reduce the sentence of death to
life imprisonment. In our opinion this is a fit case for imposing death
sentence on killers. …Shahid Ullah @ Shahid & ors Vs. The State,
(Criminal), 4 SCOB [2015] AD 11
....View Full Judgment
|
Shahid Ullah @ Shahid & ors Vs. The State |
4 SCOB [2015] AD 11 |
Sections 302/34, 120B
|
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), 5 SCOB [2015] AD 1
....View Full Judgment
|
State Vs. Dafader Marfoth Ali Shah & ors |
5 SCOB [2015] AD 1 |
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
|
Abu Taher =VS= The State |
7 LM (AD) 247 |
Section 302
|
A Court cannot award any sentence other than that provided by the law:
On the question of sentence, I have to say first and foremost that the
Supreme Court is neither above nor beyond the law of the land and is bound
to award a sentence which is permitted by law. Hence, when awarding
sentence for an offence under section 302 of the Penal Code, just as the
Supreme Court could not award a sentence of “rigorous imprisonment for 20
years”, it cannot also award a sentence of “imprisonment for rest of
the life”. Neither of those two punishments mentioned is permitted by the
Penal Code. Section 302 provides that, “Whoever commits murder shall be
punished with death, or imprisonment for life, and shall also be liable to
fine.” Without amendment of the Penal Code, when an accused is convicted
of an offence under section 302 of the said Code, the Supreme Court or any
other Court cannot award any sentence of fixed term of imprisonment for a
finite number of years nor “imprisonment for the natural life” or any
such term. Equally, when commuting the sentence of death, a Court cannot
award any sentence other than that provided by the law, which in the case
of conviction under section 302 would have to be “imprisonment for
life”. (Minority View) (Per Mr. Justice Muhammad Imman Ali J:) …Ataur
Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
....View Full Judgment
|
Ataur Mridha alias Ataur Vs. The State |
15 SCOB [2021] AD 1 |
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
|
Abu Taher =VS= The State |
7 LM (AD) 247 |
Section 302
|
Commutation of death Penalty:
According to the confessional statement, the appellant out of grudge dealt
the blows aimed at the head of Khadiza Begum (PW2) but that accidentally
struck the head of victim Farzana and as a result of that the minor child
died instantly. Taking that into consideration and all other aspects we are
of the opinion to commute the sentence of death to imprisonment for life.
…Masum Billah alias Md. Masum Billah Vs. The State, (Criminal), 16 SCOB
[2022] AD 36
....View Full Judgment
|
Masum Billah alias Md. Masum Billah Vs. The State |
16 SCOB [2022] AD 36 |
Section 302/34
|
The Penal Code
Section 302/34 r/w
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
|
State =VS= Fazlur Rahman alias Badal |
7 LM (AD) 269 |
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
|
Kazem Uddin alias Kazi =VS= The State |
7 LM (AD) 280 |
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
|
Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case) |
9 LM (AD) 386 |
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
|
Muzibur Rahman =VS= The State |
9 LM (AD) 116 |
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
|
Liton =VS= The State |
9 LM (AD) 315 |
Sections 302/201/34
|
Nari O Shishu Nirjatan Daman Ain, 2000
Sections 8/30 r/w
The Penal Code, 1860
Sections 302/201/34
The Code of Criminal Procedure, 1898
Section 35A
Where the period spent in the condemned cell is not due to any fault of the
convict and where the period spent there is inordinately long, it may be
considered as an extenuating ground sufficient for commutation of sentence
of death– All the appeals are dismissed with modification of sentence.
The sentence of death of the appellants, namely, Noor Mohammad alias Kalu
alias Kalu Chor alias Kalu Dakat, son of Montaz Ali Momtaz Ali, of
Village-Kutipara, Salanga, Police Station-Salanga, District-Sirajgonj (in
Criminal Appeal No.4 of 2013); Md. Ershad Ali @ Ershad, son of Md. Yousuf
Ali Mondal and Abul Kalam @ Kalam, son of late Kuddus Ali, both of
Village-Bormohoni Dhakhinpara, Police Station-Salanga, District-Sirajgonj
(in Jail Appeal No.9(a) of 2021); and Md. Md. Ashraful Islam @Kana
Rintu@Mintu, son of Md. Sohorab Ali Mondal, of Village-Bormohoni
Dhakhinpara, Police Station-Salanga, District-Sirajgonj (in Jail Appeal
No.14 of 2021) is commuted to imprisonment for life and also to pay a fine
of Tk.20,000.00(twenty thousand) each, in default, to suffer rigorous
imprisonment for 6(six) months more. However, they will get the benefit of
section 35A of the Code of Criminal Procedure in calculation of their
sentence and other remission as admissible under the Jail Code. .....Noor
Mohammad @Kalu @Kalu Chor @Kalo Dakat =VS= The State, (Criminal), 2022(1)
[12 LM (AD) 401]
....View Full Judgment
|
Noor Mohammad @Kalu @Kalu Chor @Kalo Dakat =VS= The State |
12 LM (AD) 401 |
Sections 302/114/34
|
Code of Criminal Procedure, 1898
Section 35(A)
Penal Code, 1860
Sections 302/114/34
Commuted to imprisonment for life– It was held in the case of Nazrul
Islam (Md) vs. State reported in [66 DLR (AD) 199] that, ”Lastly with
regard to the period of time spent by the accused in the condemned cell,
there are numerous decisions of this Division which shed light on this
aspect. In general terms, it may be stated that the length of period spent
by a convict in the condemned cell is not necessarily a ground for
commutation of the sentence of death. However, where the period spent in
the condemned cell is not due to any fault of the convict and where the
period spent there is inordinately long, it may be considered as an
extenuating ground sufficient for commutation of sentence of death.” In
view of the decision cited above as well as the circumstances of this case,
Appellate Division is of the view that justice would be sufficiently met if
the sentence of death of the appellant Mofazzal Hossain Khan @ Mofa be
commuted to one of imprisonment for life. He will get the benefit of
section 35(A) of the Code of Criminal Procedure, 1898 in calculation of his
sentence. ...Mofazzal Hossain Khan @ Mofa =VS= The State, (Criminal),
2021(2) [11 LM (AD) 167]
....View Full Judgment
|
Mofazzal Hossain Khan @ Mofa =VS= The State |
11 LM (AD) 167 |
Section 302/34
|
Only to prove the motive is not sufficient where the subsequent act
relating to murder is doubtful relying on which the High Court Division has
given the benefit of doubt to the other accused except the present
appellant. The only reason that he took the money from the deceased cannot
be the sole basis for his conviction in a murder case. According to the
prosecution all the F.I.R. named accused had actively participated in the
murder of the deceased Biplob and as many as eleven severe bleeding
injuries were found on his body. So, only the appellant can't be held
liable for committing the murder when the High Court Division has ignored
the dying declaration taking into consideration the incapacity of the
deceased at that moment and the contradictory statement of the vital PWs as
well on the basis of which the trial Court had convicted and awarded death
sentence to all of them. .....Shahin Vs. The State, (Criminal), 19 SCOB
[2024] AD 148
The appellant's conduct in absconding was also relied upon by the High
Court Division while rejecting his appeal. It has been previously held by
this Division that absconding by itself is not an incriminating matter.
.....Shahin Vs. The State, (Criminal), 19 SCOB [2024] AD 148
....View Full Judgment
|
Shahin Vs. The State |
19 SCOB [2024] AD 148 |
Sections 302/34
|
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Sections 302/34
Commuting a sentence of death– The youth of the person is usually taken
into consideration along with other extenuating circumstances in order to
commute a sentence of death passed on such a person– In the case of The
State vs. Tasiruddin (1961)13 DLR 203, Morshed,J observed that in the case
of extreme youth, normally, of persons in their early or middle teens,
youth itself is invariably a sufficient ground for commuting a sentence of
death to transportation for life(now life imprisonment). In a very rare
case a youth in middle or later teens, is condemned to death. It is only in
exceptional circumstances and in cases of extreme depravity that a
teen-ager is awarded a death sentence. In other cases when a person is of a
higher age but quite in early youth, the question of his age alone is not
sufficient to justify a commutation of the sentence, and the question,
namely, the youth of the person is usually taken into consideration along
with other extenuating circumstances in order to commute a sentence of
death passed on such a person.
This criminal appeal is dismissed and the sentence of the
condemned-prisoner is commuted to imprisonment for life and to pay a fine
of Tk.5000/-, in default, to suffer imprisonment for 15 days more. He will
get the benefit of section 35A of the Code of Criminal Procedure in
calculation of his sentence. ...Samaul Haque Lalon =VS= The State,
(Criminal), 2021(2) [11 LM (AD) 315]
....View Full Judgment
|
Samaul Haque Lalon =VS= The State |
11 LM (AD) 315 |
Sections 302/120(kha)/34
|
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Sections 302/120(kha)/34
Commute the sentence of death penalty– The severe torment and prolonged
agony may be considered as an extenuating circumstance and in view of the
above fact of his lengthened misery Appellate Division is inclined to
modify the order of sentence and commute the sentence of death penalty to
that of imprisonment for life. ...Alaich Mahmud@Ear Mahmud@Mohammad Mia
=VS= State, (Criminal), 2021(2) [11 LM (AD) 323]
....View Full Judgment
|
Alaich Mahmud@Ear Mahmud@Mohammad Mia =VS= State |
11 LM (AD) 323 |
Section 302/34
|
It is clear that the testimony of P.W.2 had not been corroborated by
P.Ws.11 and 12. According to the statement of P.W.2 Kazimuddin (P.W.11) and
Ziaur Rahman (P.W.12) had reached the place of occurrence before he reached
there. He had seen both of them along with others were taking the victim in
a Van to the Hospital. Although it has come in the testimony of P.W.2 about
the involvement of the accused along with the appellant in commission of
the offence but P.W.11 in his deposition had in clear terms mentioned that
“ঘটনাস্থলে আমি এসে দেখি
বিপ্লব মৃত্যুশয্যায় তখন
অঝোরে রক্ত ঝরছিল, আমি তাকে
বেহুশের মতো হসপিটালে নিয়ে
যাই এর কিছুক্ষণ পরেই মারা
যায়” who in cross examination stated that “কিভাবে
বিপ্লব মারা গেল তা সঠিক বলতে
পারবো না।” and P.W.12 had stated in cross-examination
that “বিপ্লবের ভ্যানে পিছনে
পিছনে গেছি। সে কি কথা বলেছে
তা শুনিনি বা জানিনা।” So, that
definitely creates doubt on the physical capability of victim Biplob and as
such the High Court Division though rightly came to a concrete finding that
the prosecution in view of the facts and circumstances has totally failed
to prove that the victim Biplob had the physical and mental capacity to
make any statement such as dying declaration after receiving the serious
bleeding injuries but it has committed illegality in not allowing the
appeal of the convict-appellant which is contradictory to its own findings
as stated above. .....Shahin Vs. The State, (Criminal), 19 SCOB [2024] AD
148
....View Full Judgment
|
Shahin Vs. The State |
19 SCOB [2024] AD 148 |
Section 302
|
Code of Criminal Procedure, 1898
Sections 35A, 164
Penal Code, 1860
Section 302
Commute the sentence of death to imprisonment for life– Appellant has
suffered in the condemned cell for about 12 years and has been suffering
for a much longer period in custody, since he faced the trial. He has no
previous conviction according to the charge sheet and does not pose any
threat to society.
According to the confessional statement, the appellant out of grudge dealt
the blows aimed at the head of Khadiza Begum (PW2) but that accidentally
struck the head of victim Farzana and as a result of that the minor child
died instantly. Taking that into consideration and all other aspects
Appellate Division is of the opinion to commute the sentence of death to
imprisonment for life. Appellant will get the benefit of section 35A of the
Code of Criminal Procedure in calculation of his sentence and other
remission as admissible under the Jail Code. ...Masum Billah =VS= The
State, (Criminal), 2021(2) [11 LM (AD) 395]
....View Full Judgment
|
Masum Billah =VS= The State |
11 LM (AD) 395 |
Section 302
|
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Section 302
Commuting the sentence of death to imprisonment for life– Appellate
Division finds also that the accused had married the victim out of a love
affair and, hence, his anger would be more acute if he suspected that his
wife was unfaithful. This, Appellate Division finds would have been the
reason for the incident which took place after midnight. Moreover, this
Division bears in mind that the couple have a child who has lost one parent
and the other stands on the gallows.
In the facts and circumstances discussed above, Appellate Division is of
the view that the conviction under section 302 of the Penal Code was
correct. However, this Division feels that this is a fit case for commuting
the sentence of death to imprisonment for life. Appellant will get the
benefit of section 35A of the Code of Criminal Procedure in calculation of
his sentence and also benefit of remission. ...Nazrul Islam(Md.) =VS=
Deputy Commissioner(DC), Dhaka, (Criminal), 2021(2) [11 LM (AD) 403]
....View Full Judgment
|
Nazrul Islam(Md.) =VS= Deputy Commissioner(DC), Dhaka |
11 LM (AD) 403 |
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.
|
Abed Ali Vs. State |
42 DLR (AD) 171 |
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.
|
Abed Ali Vs. State |
42 DLR AD 171 |
Sections 302/34
|
Code of Criminal Procedure, 1898
Section 35A
আদালত কর্তৃক তথ্য-প্রযুক্তি
ব্যবহার আইন, ২০২০
Sections 3, 4
Penal Code, 1860
Sections 302/34
The present criminal appeal and jail appeal were heard by this Division
using virtual means under the provisions of the আদালত
কর্তৃক তথ্য-প্রযুক্তি
ব্যবহার আইন, ২০২০| The appellant has suffered
in the condemned cell for about 13 years and has been suffering for a much
longer period in custody, since he faced the trial. He has no previous
conviction according to the charge sheet and does not pose any threat to
society.
Appellate Division finds substance in the submissions of the learned
Counsel for the appellant. Hence, this criminal appeal is dismissed. The
sentence of death of the appellant, namely Fazlul Haque Talukder, son of
Abdul Aziz Talukder of Village:Poik Khali, Police Station-Bhandaria,
District-Pirojpur is commuted to imprisonment for life, and also to pay a
fine of Tk. 20,000/-(twenty thousand), in default to suffer rigorous
imprisonment for 6(six) months more. He will get the benefit of section 35A
of the Code of Criminal Procedure in calculation of his sentence and other
remission as admissible under the Jail Code. ...Fazlul Haque Talukder =VS=
Deputy Commissioner(DC), Barishal, (Criminal), 2021(2) [11 LM (AD) 418]
....View Full Judgment
|
Fazlul Haque Talukder =VS= Deputy Commissioner(DC), Barishal |
11 LM (AD) 418 |
Sections 302/201 and 34
|
Benefit of doubt– It is clear that before the lodging of the F.I.R by
P.W-1 on 23.12.1997 which has been proved and exhibited during the trial
being the basis of the instant case another information as to the alleged
occurrence was given to the police station on the basis of which police
went to the house of the informant and after arresting Rashed took him to
the police station, but the prosecution withheld the said first information
given to the police which creates a doubt about the fact of the alleged
extra-judicial confessional statement of accused Rashed, So, the very
withholding of the first FIR by the prosecution clearly creates a doubt
about the whole prosecution case, where the benefit of which must be given
to the defence. In this case there is no ocular evidence of the occurrence.
Though, it has been stated by some of the witnesses that respondent Rashed
made extra-judicial confession admitting the killing of victim Munira. But
this type of extra-judicial confession alone, in a case of the present
nature and circumstances is unsafe to base. The Criminal Appeal No. 61 of
2009 is dismissed. .....The State =VS= Md. Rashed Miah, (Criminal), 2022(1)
[12 LM (AD) 393]
....View Full Judgment
|
The State =VS= Md. Rashed Miah |
12 LM (AD) 393 |
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.
|
Dipok Kumar Sarker Vs. State |
40 DLR (AD) 139 |
Sections 302/34/201
|
The Penal Code, 1860
Sections 302/34/201
The Code of Criminal Procedure, 1898
Section 35A
Modification of sentence– Where the period spent in the condemned cell is
not due to any fault of the convict and where the period spent there is
inordinately long, it may be considered as an extenuating ground sufficient
for commutation of sentence of death– The appellant is in the condemned
cell for more then 15(fifteen) years suffering the pangs of death. It was
held in the case of Nazrul Islam (Md) vs.State reported in 66 DLR (AD) 199
that, ”Lastly with regard to the period of time spent by the accused in
the condemned cell, there are numerous decisions of this Division which
shed light on this aspect. In general terms, it may be stated that the
length of period spent by a convict in the condemned cell is not
necessarily a ground for commutation of the sentence of death. However,
where the period spent in the condemned cell is not due to any fault of the
convict and where the period spent there is inordinately long, it may be
considered as an extenuating ground sufficient for commutation of sentence
of death.” In view of the decisions cited above as well as the
circumstances of this case, Appellate Division is of the view that justice
would be sufficiently met if the sentence of death of the appellants be
commuted to one of imprisonment for life. .....Monir Ahmed =VS= The State,
(Criminal), 2022(1) [12 LM (AD) 413]
....View Full Judgment
|
Monir Ahmed =VS= The State |
12 LM (AD) 413 |
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.
|
Dipok Kumar Sarker Vs. State |
40 DLR (AD) 139 |
Section 302
|
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Section 302
Evidence Act, 1872
Section 106
Although there was no eyewitness in support of the prosecution case, the
burden cast upon the appellant to explain the death of his wife while she
was in his custody has not been exonerated– In view of the facts that
there is no previous record of any criminal activity of the appellant, he
has two children who obviously care for him enough not to appear in Court
to depose against him, and that the sentence of death would render his two
children to become orphans, Appellate Division is inclined to commute the
sentence of death to imprisonment for life. ...Golam Rabbani(Md.) =VS= The
State, (Criminal), 2021(2) [11 LM (AD) 422]
....View Full Judgment
|
Golam Rabbani(Md.) =VS= The State |
11 LM (AD) 422 |
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.
|
Amar Kumar Thakur Vs. State |
40 DLR(AD) 147 |
Sections 302/201/34
|
The Penal Code, 1860
Sections 302/201/34
The Code of Criminal Procedure, 1898
Section 35(A)
The sentence of death is commuted into imprisonment for life– In view the
facts and circumstances of the case it is found that the trial court was
correct in its decision convicting the appellant and subsequently High
Court Division affirmed the same and Appellate Division also gives their
opinion that the appellant was rightly found guilty by both the courts
below but this Division thinks that justice would be made if the sentence
of death is commuted into imprisonment for life as the appellant is in pang
of death since pronouncement of the trial court and subsequent affirmation
by the High Court Division and as such the sentence of death is commuted
into imprisonment for life. The appellant will get the benefit of section
35(A) of the Code of Criminal Procedure in calculation of his sentence.
Jail Petition No.19 of 2015 is disposed of in the light of the judgment
delivered in the Criminal Appeal No.59 of 2014. .....Mohammad Ali @ Sakil
=VS= The State, (Criminal), 2022(1) [12 LM (AD) 444]
....View Full Judgment
|
Mohammad Ali @ Sakil =VS= The State |
12 LM (AD) 444 |
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.
|
Abul Kashem Vs. State |
41 DLR (AD) 152 |
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.
|
Hazrat Ali & others Vs. State |
44 DLR (AD) 51 |
Sections 302
|
The Penal Code, 1860
Sections 302
The Code of Criminal Procedure, 1898
Section 35A
Where the period spent in the condemned cell is not due to any fault of the
convict and where the period spent there is inordinately long, it may be
considered as an extenuating ground sufficient for commutation of sentence
of death– The age of the appellant at the time of commission of offences
and the circumstances of this case, Appellate Division is of the view that
justice would be sufficiently met if the sentence of death of the appellant
Md. Rafiqul Islam alias Rafique be commuted to one of imprisonment for
life. The conviction of the appellant, Md. Rafiqul Islam alias Rafique, son
of Entaj Ali Mondal of Village-Golabari, Police Station-Bhuapur,
District-Tangail. At present: Security Guard, Shild Bangladesh Ltd. 153,
Monipuripara, Police Station-Tejgaon, District-Dhaka under section 302 of
the Penal Code is upheld, however his sentence of death is commuted to
imprisonment for life and also to pay a fine of Tk.10,000.00 (ten
thousand), in default, to suffer rigorous imprisonment for 06 (six) months
more. He will get the benefit of section 35A of the Code of Criminal
Procedure, 1898 in calculation of his sentence. .....Rafiqul Islam(Md.)
alias Rafique =VS= The State, (Criminal), 2022(1) [12 LM (AD) 448]
....View Full Judgment
|
Rafiqul Islam(Md.) alias Rafique =VS= The State |
12 LM (AD) 448 |
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.
|
Jamal Vs. State |
40 DLR (AD) 38 |
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.
|
Lal Miah alias Lalu Vs. State |
41 DLR (AD) 1 |
Section 302/34/109
|
The Penal Code, 1860
Section 302/34/109
The Code of Criminal Procedure, 1898
Section 35A
Having considered and discussed above Appellate Division has no hesitation
to hold that the prosecution has been able to prove the charge under
section 302/34/109 of the Penal Code brought against the present condemned
prisoners beyond doubt and the trial Court as well as the High Court
Division rightly found them guilty for committing such offences.
Considering the role of condemned prisoners Setabuddin and Shahab Uddin
alias Saman in commission of offence as well as the factum that they were
not apprehend at the place of occurrence like two other condemned
prisoners, Appellate Division is of the view that justice would be best
served if the sentence of death is commuted one to imprisonment for life.
Accordingly, Setabuddin and Saman alias Samad is sentenced to imprisonment
for life with a fine of Tk.50,000/- in default to suffer rigorous
imprisonment more. The appellants Setabuddin and Saman alias Samad will get
the Benefit of section 35A of the Code of Criminal Procedure in calculation
of their sentence and other remission as admissible under the Jail Code.
.....Abdul Gafur(Md.) alias Milon =VS= The State, (Criminal), 2022(1) [12
LM (AD) 461]
....View Full Judgment
|
Abdul Gafur(Md.) alias Milon =VS= The State |
12 LM (AD) 461 |
Sections 302/34
|
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Section 35A
Modification of sentence– Where the period spent in the condemned cell is
not due to any fault of the convict and where the period spent there is
inordinately long, it may be considered as an extenuating ground sufficient
for commutation of sentence of death– Appellate Division is of the view
that the prosecution could prove beyond reasonable doubt that the
appellants have committed the offence of murder of Mohiful in furtherance
of their common intention punishable under Sections 302/34 of the Penal
Code, 1860. The trial Court has correctly convicted the appellants with
murder and sentenced them to death under Sections 302/34 of the Penal Code,
1860 as well as the High Court Division has correctly confirmed the
conviction and sentence passed by the Sessions Judge, Joypurhat. The
sentence of death of the appellants namely; Md. Al-Amin alias Badsha alias
Khalek, son of Thandu Pramanik alias Saydur Ali, of Village-Upashahar Rest
House Para, P.O-Bogra, District-Bogra; Faraz Uddin alias Jeebon, son of
late Azmat Ullah Pramanik of Village-Debchandi, P.O-Shibgonj,
District-Bogra; Md. Sajib, son of Zahirul Islam, of Village-Atapara,
P.O-Bogra, District-Bogra are commuted to imprisonment for life and also to
pay a fine of Tk.50,000.00(fifty thousand) each, in default, to suffer
rigorous imprisonment for 2(two) years more. .....Al-Amin(Md.) @Badsha
@Khalek =VS= The State, (Criminal), 2022(1) [12 LM (AD) 470]
....View Full Judgment
|
Al-Amin(Md.) @Badsha @Khalek =VS= The State |
12 LM (AD) 470 |
Sections 302/34/109
|
The Penal Code, 1860
Sections 302/34/109
The Code of Criminal Procedure, 1898
Section 35(A)
Lastly with regard to the period of time spent by the accused in the
condemned cell, there are numerous decisions of Appellate Division which
shed light on this aspect. In general terms, it may be stated that the
length of period spent by a convict in the condemned cell is not
necessarily a ground for commutation of the sentence of death. However,
where the period spent in the condemned cell is not due to any fault of the
convict and where the period spent there is inordinately long, it may be
considered as an extenuating ground sufficient for commutation of sentence
of death. The circumstances of this case, this Division is of the view that
justice would be sufficiently met if the sentence of death of the
appellants be commuted to one of imprisonment for life. All the appeals are
dismissed. All the appellants will get the benefit of section 35A of the
Code of Criminal Procedure in calculation of his sentence and other
remission as admissible under the Jail Code. .....Rafiqul Islam Sheikh =VS=
The State, (Criminal), 2022(1) [12 LM (AD) 484]
....View Full Judgment
|
Rafiqul Islam Sheikh =VS= The State |
12 LM (AD) 484 |
Sections 302, 120B, 34
|
Guilt of the condemned prisoner– It is a settled proposition that a
common intention pre-supposes a prior concert and physical presence of the
accused in the actual commission of the crime. The fact that all the
accused persons were armed with deadly weapons and were physically present
at the place of the occurrence and inflicted multiple injuries on the
victim, which clearly prove the common intention in furtherance of
executing the plan of the accused persons to kill the victim. The facts,
circumstances, evidence and other materials on record led us to believe and
hold that the prosecution has successfully proved the charge brought
against the three condemned-prisoners as alleged. .....Alamgir Kabir
@Baitta Alamgir @Manik @Iqbal =VS= State, (Criminal), 2022(1) [12 LM (AD)
593]
....View Full Judgment
|
Alamgir Kabir @Baitta Alamgir @Manik @Iqbal =VS= State |
12 LM (AD) 593 |
Section 302
|
Lunacy Act 1912 (IV of 1912)
Sections 3(4) and 24
Code of Criminal Procedure, 1898
Section 471
Penal Code, 1860
Section 302
Unsoundness of mind at the time of the occurrence– Nikhil Chandra Halder
Vs The State where in it has been held that:- “Lunacy Act 1912 (IV of
1912) Sections 3(4) and 24-Although the accused was acquitted, he came
within the definition of ‘criminal lunatic’ and was liable to be
detained in an asylum for treatment.” There is no cogent reason to
interfere with the same and hence, the criminal appeal is dismissed. Let
respondent, Najrul be acquitted of the charge and sent to safe custody
under section 471 of the Code of Criminal Procedure for taking necessary
and adequate measure. ...The State =VS= Nazrul Islam, (Criminal), 2021(2)
[11 LM (AD) 479]
....View Full Judgment
|
The State =VS= Nazrul Islam |
11 LM (AD) 479 |
Sections 302/34
|
Penal Code, 1860
Sections 302/34
Constitution of Bangladesh, 1972
Article 103(2)(b)
Commuted from death to imprisonment for life with get benefit of section
35A of the Code of Criminal Procedure– Article 103(2)(b) of the
Constitution granted automatic right of appeal to the appellate Division in
all death sentence cases– The Criminal Appeals being Criminal Appeal
No.45 of 2012 and 48 of 2015 and Jail Petition No.15 of 2012 are dismissed.
However, the sentences of the appellants Iqbal Hossain, Joynal Abedin and
Zakir Hossain are commuted from death to imprisonment for life and to pay
fine of tk.5,000/- each, in default, to suffer rigorous imprisonment for 15
days more. They shall get benefit of section 35A of the Code of Criminal
Procedure. The Criminal Petition for Leave to Appeal No.366 of 2017 is
disposed of. The judgment and order of conviction so far the same relates
to accused Zaman is concerned is set aside. He is acquitted of the charge.
He may be released from custody if not wanted in connection with any other
case. ...Iqbal Hossain =VS= The State, (Criminal), 2021(2) [11 LM (AD) 159]
....View Full Judgment
|
Iqbal Hossain =VS= The State |
11 LM (AD) 159 |
Sections 302/34
|
Hired killers are a threat to society and do not deserve any sympathy from
this Court– It is an accepted proposition that evidence of T.I. Parade is
not substantive evidence, but there are numerous decisions that the
evidence is admissible and is corroborative evidence, as has been held in
the case of Ibrahim Bhak & another Vs. The Crown, 7 DLR (F.C.)123 and the
decision in the case of Muhammad Bashir Alam vs. The State, 10 DLR SC 21.
It is un-questionable that evidence given in Court is substantive evidence.
Hence, when a witness identified the accused in the Court as the assailant
that evidence can be corroborated by the evidence of the T.I. Parade. There
is no evidence of any enmity or grudge between the appellant and the
victim. Hence, it is apparent that the killer was a mercenary who murdered
the victim without any motive other than carrying out the task of killing
the victim. In such view of the matter Appellate Division is of the opinion
that hired killers like him are a threat to society and do not deserve any
sympathy from this Court. There is no knowing who will be the victim of his
next mercenary killing. The sentence of death of the appellant passed by
the trial Court and affirmed by the High Court Division is maintained.
...Jashim(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 194]
....View Full Judgment
|
Jashim(Md.) =VS= The State |
11 LM (AD) 194 |
Sections 302/34
|
Sentence of death–The prosecution was able to prove the case against the
accused persons beyond reasonable doubt. Both the trial Court and the High
Court Division found that the confessional statements of the accused were
true and voluntary. Appellate Division finds no reason to differ from such
finding. From the confessional statement of condemned prisoner Khokon it
transpires that he was actively involved in their collective criminal
activity from the time of the plan to hire the vehicle till the time of
disposal of the dead body of the victim. The driver was a young man in the
prime of his life and the accused unflinchingly extinguished his life only
because they would not otherwise be able to take away the vehicle. Clearly
both the condemned prisoners can be engaged and used to murder any person
in cold blood for a paltry sum of money. Condemned appellant Khokon
received only Tk.2,000/- for his part in their criminal venture. Clearly,
they have no respect for or value human life and are indeed a menace and a
threat to society. Facts and circumstances discussed above this Division
does not find any reason to show leniency in such a case of cold-blooded
murder. Accordingly, the conviction under sections 302/34 of the Penal Code
and the sentence of death passed by the trial Court along with fine of
Tk.1,00,000/- each, which was affirmed by the High Court Division is hereby
upheld. The jail appeal is dismissed. ...Khokan Akanda =VS= The State,
(Criminal), 2021(2) [11 LM (AD) 205]
....View Full Judgment
|
Khokan Akanda =VS= The State |
11 LM (AD) 205 |
Section 302
|
Sentence of death– If Appellate Division peruses the confessional
statement and circumstantial evidence together it would safely be concluded
that the appellant had killed an innocent school going child. Such murder
was committed for a motive which evinces total depravity and meanness. The
victim was subjected to inhuman acts of torture and cruelty. The measure of
punishment is depended upon the conduct of the accused and the gravity of
the offence. Crimes of killing child need to be severely dealt with.
Protection of the children and the society and deterring the criminals are
the avowed objects of law and those are required to be achieved by
imposing an appropriate sentence. Courts must hear the loud cry for justice
by the society in cases of the heinous crime of murder of innocent helpless
child, as in this case, and respond by imposition of proper sentence.
Public abhorrence of the crime needs reflection through imposition of
appropriate sentence by the Court. To show mercy in the case of such a
heinous crime would be a travesty of justice and the plea for leniency is
wholly misplaced. In view of such circumstances, this Division finds no
illegality in the judgment and orders of the learned Courts below which
calls for interfere by this Division. ...Mahbubur Rahman Titu(Md.) =VS= The
State, (Criminal), 2021(2) [11 LM (AD) 232]
....View Full Judgment
|
Mahbubur Rahman Titu(Md.) =VS= The State |
11 LM (AD) 232 |
Section 302
|
Acquittal of the charge– When the evidence shows that two views are
possible- one pointing to the guilt of the appellant and other leading to
his innocence and where circumstances are susceptible of two equally
possible inferences, the Court should accept that inference which favours
the accused rather than an inference which goes in favour of the
prosecution. It may be very likely that the appellant may have administered
the poison to victim Shewli but at the same time a fair possibility that
she herself committed suicide cannot be safely excluded or eliminated.
Hence, on this ground alone the appellant is entitled to get the benefit of
doubt resulting in his acquittal.
Accordingly the appeal is allowed. The appellant Md. Shaheb Ali Fakir is
acquitted of the charge. Consequently, the judgment and order dated
5.7.2015 passed by the High Court Division in Death Reference No.38 of
2010 and Jail Appeal No.186 of 2010 affirming the judgment and order dated
10.6.2010 passed by the Additional Sessions Judge, Second Court, Bagerhat
in Sessions Case No.115 of 2008 arising out of G.R. Case No.190 of 2007
corresponding to Mollahat Police Station Case No.14 dated 28.11.2017 are
hereby set aside. It is directed to release the appellant immediately if
he is not wanted in connection with any other case. ...Saheb Ali Fakir(Md.)
=VS= The State, (Criminal), 2021(2) [11 LM (AD) 239]
....View Full Judgment
|
Saheb Ali Fakir(Md.) =VS= The State |
11 LM (AD) 239 |
Section 302
|
Death sentence– Children are vulnerable and defenseless class of victims,
deserving of special protection. The children are the future of every
nation. The children not only need the protection of their parents, but
also need to be protected by the society at large. Killing of a child needs
to be condemned and deprecated in the harshest terms legally, morally and
socially. The criminal law is general to the principle of proportionality
in prescribing liability according to the culpability of each kind of
criminal conduct. In recent years, the rising crime rate particularly
violent crime against children has made the criminal sentencing by the
courts a subject of concern. The measure of punishment in a given case must
depend upon the atrocity of the crime; conduct of the criminal and the
defenceless and unprotected state of the victim. Having played with life
of a child the appellant does not deserve any leniency and for him
sympathizing on the ground sought for will be wholly uncalled for. In this
case the appellant has betrayed the trust of the society and of the child.
In the case at hand, the appellant killed the victim in a brutal and
barbaric manner. The nature of the crime and the manner the same was
committed inhumanly. It is not only betrayal of an individual trust but
destruction and devastation of social trust. Appellate Division, therefore,
affirms the view taken by the High Court Division. ...Zahangir(Md.) @
Thotkata Zahangir =VS= The State, (Criminal), 2021(2) [11 LM (AD) 244]
....View Full Judgment
|
Zahangir(Md.) @ Thotkata Zahangir =VS= The State |
11 LM (AD) 244 |
Sections 302/380/411
|
Sentence of death– There are the moralists who say that as Almighty Allah
has given life, Allah alone has the right to take it away and this
privilege cannot be usurped by any human being . There are others who
believe that the death sentence cannot be taken as a retributive or
deterrent factor. Fact is that death penalty is on the statute book. It has
to be awarded provided the circumstances justify it. Here, two helpless
women, who permitted the appellant to live with them for helping him to
take better education, were killed inhumanly. One of them, was a brilliant
rising doctor of the country. Appellate Division opines this is one of the
case in which the extreme penalty of death is called for.
Accordingly, the appeal is dismissed. The judgment and order dated
29.05.2008 passed by the Druto Bichar Tribunal No.4, Dhaka in Druto Bichar
Tribunal Case No.17 of 2007 arising out of Dhanmondi Police Station Case
No.24 dated 07.03.2005 corresponding to G.R. No.144/2005 affirmed by the
High Court Division in Death Reference No.62 of 2008 with Criminal Appeal
No.4028 of 2008 and Jail Appeal No.721 of 2008 are hereby maintained.
However, order of payment of fine is set aside. ...Aminul Islam(Md.) =VS=
The State, (Criminal), 2021(2) [11 LM (AD) 251]
....View Full Judgment
|
Aminul Islam(Md.) =VS= The State |
11 LM (AD) 251 |
Sections 302, 201 and 34
|
Death sentence– Confessional statement finds support from the Inquest
Report (Exhibit No.03) and the Post Mortem Examination Report (Exhibit
No.07) which clearly confirmed that death was due to haemorrhage and shock
resulting from the injuries on the body of the victim– It is also found
from the materials on record that the death of the victim was due to
haemorrhage and shock resulting from stabbing injuries which were ante
mortem and homicidal in nature and that it is ex-facie clear that the
victim was stabbed with the intention of causing death. The evidence on
record established that the appellant does not value human life and has no
compunction even after he took the life of an innocent child. There is no
extenuating circumstance that may impel us to take a lenient view in
commuting the sentence of death as there is no mitigating or extenuating
circumstances or record for the purpose of commutation of the death
sentence and all the circumstances are aggravating. After perusing all the
materials on record we do not find any cogent and legal ground to interfere
with the judgement and order of conviction and sentence as stated therein
before. In the result the appeal is dismissed. ...Khaled Hasan @Khaleque
Hasan @Zakir =VS= The State, (Criminal), 2021(2) [11 LM (AD) 408]
....View Full Judgment
|
Khaled Hasan @Khaleque Hasan @Zakir =VS= The State |
11 LM (AD) 408 |
Sections 302/34
|
Guidelines in respect of petition/appeal filed by accused in custody or any
litigant for that matter:–
1. The jail authority must keep a record in the register of every prisoner
who files an appeal or jail petition so that there is no duplication of
appeal/petition before the Court.
2. The prisoner must inform the learned Advocate taking signature on a
Vokalatnama if an earlier jail petition was submitted by way of appeal.
3. The prisoner must be made aware that if he has already submitted a jail
petition then a further appeal is not necessary and that steps may be taken
by his learned Advocate to convert the jail appeal into a regular criminal
appeal.
Since the appeals in respect of appellants Jharu and Mokim were dismissed
upon hearing Jail Appeal No.3 of 2016, the instant Criminal Appeal Nos.107
of 2013 and 111 of 2013 have become infructuous. Accordingly, the said
criminal appeals are dismissed as infructuous. Similarly, appellant Sujan
having been acquitted upon hearing Jail Petition No.8 of 2013, his Criminal
Appeal No.19 of 2013 has become infructuous. Accordingly, Criminal Appeal
No.19 of 2013 is dismissed as infructuous. ...Jharu =VS= The State,
(Criminal), 2021(2) [11 LM (AD) 412]
....View Full Judgment
|
Jharu =VS= The State |
11 LM (AD) 412 |
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
|
The State Vs. Jahanara Begum |
4 BLT (AD) 240 |
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
|
Altaf Hossain Vs. The State |
6 BLT (AD) 14 |
section 302
|
In the absence of any motive, conspiracy, pre-plan or pre-meditation on
part of accused it can be deduced that the appellant had no ‘intention to
commit murder’:
It is to be noted that to find an accused guilty of offence of murder
punishable under section 302 Penal Code it must be proved that there was an
intention to inflict that particular bodily injury which in the ordinary
course of nature was sufficient to cause death. But in the case in hand, we
do not find the injury sustained by the victim was sufficient to cause his
death. Injured victim however died in hospital 18 days after he sustained
injury. The post Mortem doctor admits in cross-examination that no
appropriate treatment was provided to injured victim when he had been in
hospital. It appears from the evidence on record that prosecution failed to
prove any motive, premeditation, pre-plan or any conspiracy on the part of
accused appellant to kill victim Alimullah. In the absence of any motive,
conspiracy, pre-plan or pre-meditation on part of accused-appellant Joni
while inflicting injury resulting the death of the victim 18 days after the
occurrence, we find that the accused-appellant Joni had no ‘intention to
commit murder’ but he committed the offence of ‘culpable homicide not
amounting to murder’. .....Md. Zoni Vs. The State, (Criminal) 19 SCOB
[2024] HCD 1
....View Full Judgment
|
Md. Zoni Vs. The State |
19 SCOB [2024] HCD 1 |
section 302
|
In the case in hand, it depicts that the injury caused by the
accused-appellant was not the immediate cause of victim’s death. Rather,
the post mortem report speaks that the victim died due to spinal cord
injury resulting from the injury inflicted by ‘Batal’ blow on his back.
In the backdrop of attending facts and circumstances unveiled, it can be
justifiably concluded that if the appellant really had any ‘intention to
cause death’ of the victim, he could have inflicted repeated ‘Batal’
blows on vital part of the body of the victim. But the accused did not do
it. Such sudden culpable conduct of the accused leads to the conclusion
that he had no intention to cause victim’s death by inflicting such
single ‘Batal’ blow. .....Md. Zoni Vs. The State, (Criminal) 19 SCOB
[2024] HCD 1
....View Full Judgment
|
Md. Zoni Vs. The State |
19 SCOB [2024] HCD 1 |
section 302
|
It is to be noted that to find an accused guilty of offence of murder
punishable under section 302 Penal Code it must be proved that there was an
intention to inflict that particular bodily injury which in the ordinary
course of nature was sufficient to cause death. .....Md. Zoni Vs. The
State, (Criminal) 19 SCOB [2024] HCD 1
....View Full Judgment
|
Md. Zoni Vs. The State |
19 SCOB [2024] HCD 1 |
Section 302
|
The prosecution successfully could prove the charges as brought against the
condemned-accused-prisoner Shadat Hossain @ Shajibin respect of the killing
of the victim Faisal Elahi under section 302 of the Penal Code beyond all
reasonable doubt.
The High Court Division opines that the prosecution successfully could
prove the charges as brought against the condemned-accused-prisoner Shadat
Hossain @ Shajibin respect of the killing of the victim Faisal Elahi under
section 302 of the Penal Code beyond all reasonable doubt. So, the trial
Court rightly passed the judgment and order of conviction and sentence
dated 01.12.2013 in Metro Sessions Case No. 1725 of 2008 arising out of
Adabor Police Station Case No. 17(10) of 2007 dated 11.10.2007 against the
condemned-prisoner which calls for no interference by this Court. In the
result, the Death Reference No. 62 of 2013 is accepted. The State -Vs.- Md.
Shadat Hossain alias Shajib (Criminal) 2019 ALR (HCD) Online 139
....View Full Judgment
|
The State -Vs.- Md. Shadat Hossain alias Shajib |
2019 ALR (HCD) Online 139 |
section 302
|
In our opinion, having regard to the totality of circumstances, viz., the
single injury the victim sustained, that the victim died 18 days later,
that the weapon (Batal) was not carried by the accused-appellant in
advance, that there was no premeditation, that the accused could not
control himself on seeing Eva whom he wanted to get married moving with one
Shamim, one prudent person can only say that the accused-appellant must be
attributed the knowledge that he was likely to cause an injury which was
likely to cause death, but not with intention to cause death of the victim.
.....Md. Zoni Vs. The State, (Criminal) 19 SCOB [2024] HCD 1
....View Full Judgment
|
Md. Zoni Vs. The State |
19 SCOB [2024] HCD 1 |
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
|
Shahjahan Sardar and others Vs. The State |
13 BLD (AD) 58 |
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
|
Rahmat Ali alias Shukkur =VS= The State |
8 LM (AD) 626 |
Section 302
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(ka) r/w
The Penal Code
Section 302
The murder was cold blooded and brutal without any provocation– Section
11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 provides for capital
punishment only. Therefore, the High Court Division took the view that it
could not take any lenient view in respect of awarding punishment to the
condemned-appellant. Moreover, in the present case, the savage nature of
crime has shocked our judicial conscience. The murder was cold blooded and
brutal without any provocation. Therefore, the submissions of the learned
Advocate for the appellant that imprisonment for life may be awarded to the
appellant by converting his conviction from 11 (ka) of the Nari-O-Shishu
Nirjatan Daman Ain to section 302 of the Penal Code do not hold good on the
facts and in circumstances of the case in hand. Moreover, demand of
Tk.10000/- as dowry has been proved by the satisfactory evidence as found
by both the Courts below. ...Abdul Haque(Md.) =VS= The State, [10 LM (AD)
472]
....View Full Judgment
|
Abdul Haque(Md.) =VS= The State |
10 LM (AD) 472 |
Section 302
|
Nari–O-Shishu Nirjatan Daman Ain, 2000
Section 11(Ka) r/w
The Penal Code
Section 302
Modifications of sentence– The appellant has been convicted under section
11(Ka) of the Ain, 2000 read with Section 302 of the Penal Code by the High
Court Division. From the materials on record, it is found that the
appellant No.1 Shahan Shah Sikder (Tito) has been in condemned cell for
more than 13 (thirteen) years suffering the pangs of death.
Accordingly, the conviction of the appellant No.1 Shahan Shah Sikder
(Tito), son of late Elias Sikder, Village-Tularampur, Police Station &
District-Narail is maintained. However his sentence is reduced to
imprisonment for life along with a fine of Tk.20,000.00. The jail authority
of Jessore jail is directed to shift the convict-appellant No.1, Shahan
Shah Sikder (Tito), son of Elias Sikder from condemned cell to regular
prison forthwith. The appellant No.2, Aleya Begum, wife of Elias Sikder,
Village-Tularampur, Police Station & District-Narail be acquitted of the
charge leveled against her. Let her be set at liberty forthwith if not
wanted in connection with any other case. ...Shahan Shah Sikder (Tito) =VS=
The State, [10 LM (AD) 630]
....View Full Judgment
|
Shahan Shah Sikder (Tito) =VS= The State |
10 LM (AD) 630 |
Section 302
|
Code of Criminal Procedure, 1898
Section 164
Penal Code, 1860
Section 302
In the case before us, we however, have found that the order of conviction
and sentence is not based solely on the confessional statement of the
convict, rather it is based on the testimony of the witnesses. Moreover,
the material exhibits, inquest reports, post mortem reports all these
evidence clearly establish the complicity of the convict in the commission
of the offence, he has been charged with. In this case, the confessional
statement under section 164 of the Code of Criminal Procedure, is supported
by other evidences and corroborated by the oral evidences. Moreover, when
the truth of the statement made in the confessional statement are
established by other relevant, admissible and independent evidences, then
the voluntary nature of the same is proved. We have found the confessional
evidence as true and voluntary. ...State and others Vs. Golam Mostafa Mithu
and others, (Criminal), 18 SCOB [2023] HCD 8
....View Full Judgment
|
State and others Vs. Golam Mostafa Mithu and others |
18 SCOB [2023] HCD 8 |
Section 302
|
Code of Criminal Procedure, 1898
Section 61, 167, 164
Penal Code, 1860
Section 302
Effect of delay in producing the accused:
We are of the opinion that, even if, there were some unintentional delay or
failure of the police to produce the accused within 24 hours, this mere
delay alone should not be a ground to brush aside a confessional statement
which has been found to be truth and voluntary in nature, since established
by other evidence. ...State and others Vs. Golam Mostafa Mithu and others,
(Criminal), 18 SCOB [2023] HCD 8
....View Full Judgment
|
State and others Vs. Golam Mostafa Mithu and others |
18 SCOB [2023] HCD 8 |
Sections 302/34
|
Commute the sentence of death of imprisonment for life– We do not find
any reason to differ from the views expressed by the trial Court and the
High Court Division regarding the conviction of the accused. We
respectfully agree that the condemned appellants were rightly convicted
under sections 302/34 of the Penal Code.
It has been held in several cases of this Division that long periods spent
in the condemned cell would not by itself mean that sentence of death
should be commuted. However, we find that the appellants do not have any
previous convictions, and it is unlikely that they would be a threat to
society. Moreover, in her testimony PW15, Mussammat Monirunnahar, the only
direct eyewitness of the occurrence, stated that the three accused persons,
namely Nesar, Aksed and Kuran simultaneously assaulted the victim with
knives. Seven injuries were found on various parts of the body of the
victim. Hence, it is not possible to say specifically which assailant dealt
the blow that led to the death of the victim. In such circumstances, we are
inclined to commute the sentence of death to one of imprisonment for life.
We are of the view that ends of justice will be sufficiently met if the
sentence of death imposed upon the appellants Al Haj Md. Nesar Uddin Gazi
and Md. Aksed Ali Gazi is commuted to one of imprisonment for life. In
addition,they are to pay a fine of Tk.5000/- each, in default to suffer
rigorous imprisonment for 15 days more. ...Nesar Uddin Gazi(Al Haj Md.)
=VS= The State, (Criminal), 2021(1) [10 LM (AD) 377]
....View Full Judgment
|
Nesar Uddin Gazi(Al Haj Md.) =VS= The State |
10 LM (AD) 377 |
Sections 302 and 34
|
Confessional statement is neither true nor voluntary. Therefore, there is
no evidence on record to connect the appellant in the alleged offence– We
are of the view that this confessional statement is neither true nor
voluntary. Therefore, there is no evidence on record to connect the
appellant in the alleged offence. Incurable inconsistencies made in the
F.I.R., evidence adduced by the prosecution and confessional statement
recorded under section 164 of the Code of Criminal Procedure lead to the
irresistible conclusion that the prosecution has miserably failed to prove
its case beyond all reasonable doubt. This criminal appeal is allowed and
the appellant is acquitted of the charge levelled against him who has
already been released from jail custody by the advance order dated
31.01.2021. ...Shafiqul Islam =VS= The State, (Criminal), 2021(1) [10 LM
(AD) 423]
....View Full Judgment
|
Shafiqul Islam =VS= The State |
10 LM (AD) 423 |
Sections 302/148, 304 Part-I
|
Culpable homicide– The facts and circumstances of this case lead us to
believe that the appellant inflicted ‘shabol’ blow on the head of the
deceased with the intention of causing grievous injuries which were likely
to cause death, but the ‘shabol’ blow was inflicted at the spur of the
moment in a sudden fight between the parties without any premeditation, as
well being provoked by the deceased the appellant lost self-control.
Moreover, the act of the appellant falls within the purview of Exception
Nos.1 and 4 of Section 300 that is punishable under section 304 Part-I
which provides that the act by which the death is caused is done with
intention of causing death or such bodily injury as is likely to cause
death. The High Court Division committed an error of law in convicting the
appellant under Sections 302/148 of the Penal Code in holding that “the
weapon used was sabol. The accused dealt sabol blow on the vital part of
the body. All these show that the accused had intention to kill
Khorshed.” The High Court Division failed to consider that, though the
appellant has caused the death with the intention, he did the same in a
sudden fight, in the heat of passion being provoked by the victim.
The appeal is dismissed with the modification of the sentence of the
appellant. We, therefore, alter the conviction of the appellant from
Section 302 to Section 304 Part–I and reduce the sentence to rigorous
imprisonment for 10 (ten) years with a fine of Tk.1,000.00 (one thousand),
in default to pay the fine, the appellant shall suffer rigorous
imprisonment for 15(fifteen) days more. ...Abdus Samad(Md.) =VS= The State,
(Criminal), 2021(1) [10 LM (AD) 436]
....View Full Judgment
|
Abdus Samad(Md.) =VS= The State |
10 LM (AD) 436 |
Sections 302/34
|
Modification of sentence of death– It is well settled that the
confessional statement can be the sole basis of conviction if it is made
voluntarily and it is true. In the instant case, the confessional statement
of the appellant is voluntary and true as well as this confessional
statement supports the depositions of eye witnesses, PWs 14 and 15.
Decision cited [66 DLR(AD)199] as well as the circumstances of this case,
we are of the view that justice would be sufficiently met, if the sentence
of death of the appellant Md. Humayun be commuted to one of imprisonment
for life. The criminal appeal is dismissed with modification of sentence of
death. ...Humayun(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 446]
....View Full Judgment
|
Humayun(Md.) =VS= The State |
10 LM (AD) 446 |
Sections 302/34
|
The Penal Code, 1860
Sections 302/34
The Evidence Act
Section 27
Respond to the society’s cry for justice against the criminal– The
savage nature of the crime has shocked our judicial conscious; the murder
was cold-blooded and brutal without any provocation. There are no
extenuating or mitigating circumstances. The punishment to be awarded for a
crime must not be irrelevant but it should conform to and be consistent
with the atrocity and brutality with which the crime has been perpetrated,
the enormity of the crime warranting public abhorrence and it should
“respond to the society’s cry for justice against the criminal”. On
these facts declining to confirm the death sentence will, in our view,
stultify the course of justice. Therefore, there is no justification to
commute the death penalty to imprisonment for life. ...Khorshed(Md.) =VS=
The State, (Criminal), 2021(1) [10 LM (AD) 458]
....View Full Judgment
|
Khorshed(Md.) =VS= The State |
10 LM (AD) 458 |
Section 302
|
The chain of circumstances was complete and it was the husband who
committed the murder of his wife by giving crowbar blow– It is the duty
of the Court to award appropriate punishment in exercise its discretion.
Facts and circumstances of this case show that it was not an attack on
account of any provocation or mental derange. The act of bringing out a
knife from showcase and abruptly inflicting the same on the person of the
victim in the most brutal manner with severe cruelty inflicting number of
injuries in a calculated manner on a helpless housewife. The killing of
wife in a gruesome and diabolical manner will irrefutably be taken into
consideration as aggravating circum-stances. The appellant indulged in
grotesque crime of murdering his wife in presence of his daughters in a
place which was the most secured place for the victim. Such killing shocks
our juridical conscience. The appellant was in a position of trust but he
betrayed with all his family members killing his wife who was the mother
of his three children. The sentence of death of the appellant as awarded
by the Tribunal and upheld by the High Court Division is hereby affirmed.
...Sirajul Islam @ Siraj =VS= The State, (Criminal), 2021(1) [10 LM (AD)
605]
....View Full Judgment
|
Sirajul Islam @ Siraj =VS= The State |
10 LM (AD) 605 |
Sections 302/34
|
The murder was cold-blooded and brutal without any provocation– The
savage nature of the crime has shocked our judicial conscious; the murder
was cold-blooded and brutal without any provocation. There are no
extenuating or mitigating circumstances. The punishment to be awarded for a
crime must not be irrelevant but it should conform to and be consistent
with the atrocity and brutality with which the crime has been perpetrated,
the enormity of the crime warranting public abhorrence and it should
“respond to the society’s cry for justice against the criminal”. If
for such heinous crime the most deterrent punishment for wanton and brutal
murder is not given, the case of deterrent punishment will lose its
relevance. Therefore, there is no justification to commute the death
penalty to imprisonment for life. ...Syed Abdullah Al Masud @ Tipu =VS= The
State, (Criminal), 2021(1) [10 LM (AD) 674]
....View Full Judgment
|
Syed Abdullah Al Masud @ Tipu =VS= The State |
10 LM (AD) 674 |
Section 302 and section 304 Part II
|
All murders are culpable homicides but all culpable homicides are not
murder:
It is now settled that all murders are culpable homicides but all culpable
homicides are not murder. Culpable homicide is a genus and murders its
specie. That is to say all murders are culpable homicide, but all culpable
homicides are not murder. .....Md. Zoni Vs. The State, (Criminal) 19 SCOB
[2024] HCD 1
....View Full Judgment
|
Md. Zoni Vs. The State |
19 SCOB [2024] HCD 1 |
Sections 302/ 34
|
The Evidence Act, 1872;
Section 157
The Penal Code, 1860;
Sections 302/ 34
Two eye witnesses were examined by the investigating officer after long
lapse of time of the alleged occurrence. But it cannot be a sole ground to
discard their evidence on the plea of belated examination by the
investigating officer–– Find that 03(three) police officers namely
P.Ws-10,11 and 12 had investigated the case. From the evidence of P.W-12 it
transpires that he received the case docket and entrusted with
investigation of the case on 15.09.2003 and on the following day he
examined P.Ws-2 and P.W-6 and thereafter he filed the charge sheet on
17.09.2003, which clearly proves that P.W.-12, investigation officer,
submitted the charge sheet after getting the job of investigation and he
examined the said witnesses.
Appellate Division has no hesitation to hold that in convicting the present
appellant relying on the evidence of P.Ws-2 and P.W-6, the Trial Court as
well as the High Court Division did not commit any error of law. Since the
evidence of P.Ws-2 and P.W-6, the eye witnesses have been found true, trust
worthy and credible, this Division has no hesitation to hold that there is
no scope to disbelieve the said witnesses. This Division finds no merit in
the appeal. .....Shamim Uddin =VS= The State, (Criminal), 2023(2) [15 LM
(AD) 184]
....View Full Judgment
|
Shamim Uddin =VS= The State |
15 LM (AD) 184 |
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
|
Kamal alias Exol Kamal =VS= The State |
4 LM (AD) 369 |
Sections 302/35 r/w 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
|
Khalil Peada =VS= The State |
4 LM (AD) 374 |
Section 302
|
Nari-O-Shishu Nirjatan Daman Ain-2000 (Amended in 2003)
Section 11 (Ka)/30
The Penal Code, 1860
Section 302
The Code of Criminal Procedure, 1898
Section 35A
FIR is not a substantive evidence, it can be gathered from the statements
made therein that the relationship between the husband and the wife was
bitter because of demand of dowry by the husband. It is alleged in the FIR
that Tk. 30,000/-was paid to the condemned-appellant at the time of
marriage. ––Having taken into consideration all the facts and
circumstances of the case, we are inclined to commute the sentence of death
to imprisonment for life. .....Md. Mamun@ Mamun Ar Rashid =VS= The State,
(Criminal), 2023(2) [15 LM (AD) 180]
....View Full Judgment
|
Md. Mamun@ Mamun Ar Rashid =VS= The State |
15 LM (AD) 180 |
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
|
Palash =VS= The State |
3 LM (AD) 587 |
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
|
Salim =VS= The State |
3 LM (AD) 595 |
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
|
Shahid Ullah & others =VS= The State |
1 LM (AD) 595 |
Sections 302/34
|
Absconding by itself is not an incriminating matter–– In the present
case the appellant remained absconded for almost two years during the trial
till he was arrested by the police. ––According to the prosecution,
regarding the active participation of the appellant in committing the
murder of the deceased, he is in the same footing with the other accused.
So, it will be a matter of outright injustice to the appellant if the same
benefit of doubt is not granted to him. On a careful consideration of the
evidence on record Appellate Division is inclined to give benefit of doubt
to the present appellant. .....Shahin =VS= The State, (Criminal), 2023(2)
[15 LM (AD) 258]
....View Full Judgment
|
Shahin =VS= The State |
15 LM (AD) 258 |
Section 302
|
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
|
Shahid Ullah & others =VS= The State |
1 LM (AD) 595 |
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
|
Sohel Dewan =VS= The State & another |
1 LM (AD) 497 |
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
|
The State =VS= Saifullah Al-Mahmood Tanvir & others |
1 LM (AD) 501 |
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
|
Haji Mahmud Ali Londoni =VS= The State |
1 LM (AD) 505 |
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
|
Momtaj Ali @ Babul =VS= The State |
1 LM (AD) 557 |
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
|
Humayun Kabir =VS= The State |
5 LM (AD) 214 |
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
|
Jharu =VS= The State |
5 LM (AD) 233 |
Section 302
|
Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995
Section 10(1)
Evidence Act, 1872
Section 106
Penal Code, 1860
Section 302
Code of Criminal Procedure, 1898
Section 35A
Constitution of Bangladesh, 1972
Article 105
Demand of dowry by the petitioner father of the deceased Aklima has not
been established by any reliable evidence— Sentence of death under
section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain,
1995 is set aside. He is convicted under section 302 of the Penal Code and
sentenced to suffer imprisonment for life— After recording the evidence
of the prosecution witnesses and on consideration of the same along with
other materials on record the learned Judge of the Nari-O-Shishu Nirjatan
Daman Bishes Adalat found the petitioner Raju Ahmed guilty of the charge
and thereby awarded death sentence to him under section 10(1) of the
Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 by the judgment and
order dated 26.06.2002 passed in Nari-O-Shishu Nirjatan Daman Case No.218
of 1997 arising out of Nawabganj Police Station Case No.3(1)97. —After
hearing the parties and on consideration of the materials on record and the
evidence of the witnesses the High Court by the judgment and order dated
12.02.2006 accepted the death reference and dismissed the criminal appeal
and jail appeal filed by the appellant-petitioner.
Being aggrieved by the aforesaid judgment and order dated 12.02.2006 passed
by the High Court Division the petitioner forwarded a jail petition through
Senior Jail Super, Central Prison, Dhaka to the learned Registrar of this
Division which was registered as Jail Petition No.8 of 2010. This Jail
Petition No.8 of 2010 was taken up for hearing along with Civil Appeal
No.116 of 2010, Criminal Petition No.374 of 2011 and Jail Petition Nos.18
of 2008, 3 of 2009, 1 of 2010, 16 of 2010, 2-3 of 2011, 5 of 2012 and 7-8
of 2012. Ultimately by the impugned judgment dated 05.05.2015 this Division
dismissed the Jail Petition No.8 of 2010 filed by the petitioner and
allowed the civil appeal in part and disposed of Criminal Petition No.374
of 2011, Jail Petition Nos.18 of 2008, 3 of 2009, 16 of 2010, 2-3 of 2011.
But other Jail Petition being Nos.1 of 2010, 5 of 2012 and 7-8 of 2012 were
directed to be heard separately.
In the absence of any explanation by the petitioner in this case the High
Court Division as well as this Division rightly arrived at the conclusion
to make the petitioner liable for killing his wife Aklima. But so far the
findings relating to demand of dowry by the petitioner from the father of
deceased Aklima has not been established by any reliable evidence and as
such Appellate Division is unable to agree with the same. Accordingly the
judgment and order of conviction and sentence passed under section 10(1) of
Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 is liable to be set
aside and the petitioner is convicted and sentenced under section 302 of
the Penal Code. —He is convicted under section 302 of the Penal Code and
sentenced to suffer imprisonment for life and also to pay a fine of
Tk.1,000/- (one thousand) in default, to suffer rigorous imprisonment for
01 (one) month more. He will get the benefit of section 35A of the Code of
Criminal Procedure in calculation of his sentence and other remission as
admissible under the Jail Code. .....Raju Ahmed @ Raja Mia =VS= The State,
(Criminal), 2024(1) [16 LM (AD) 643]
....View Full Judgment
|
Raju Ahmed @ Raja Mia =VS= The State |
16 LM (AD) 643 |
Section 302
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(Ka)/30
The Penal Code, 1860
Section 302
The High Court Division as an appellate Court is entitled to alter or amend
the charge framed against the accused under Section 11(Ka) of Nari-O-Shishu
Ain to one under Section 302 of the Penal Code— The settled proposition
of law as evident from the above is that the High Court Division as an
appellate Court is entitled to alter or amend the charge framed against the
accused under Section 11(Ka) of Nari-O-Shishu Ain to one under Section 302
of the Penal Code and to dispose of the case finally in accordance with law
since the appellate Court has the same power as that of the trial Court and
the case is not required to be sent to the Court of competent jurisdiction
for holding trial afresh. In the case in hand, although the High Court
Division upheld the conviction of the convict-appellant passed by the
Tribunal but altered the sentence under 11(Ka) of Nari-O-Shishu Ain to one
under Section 302 of the Penal Code, 1860 and in doing so the High Court
Division did not commit any illegality. Since the offence under Section
11(Ka) of Nari-O-Shishu Ain wherein the charge as to killing of the wife
along with charge of demanding dowry framed against the convict-appellant
is a graver offence than that of the charge under Section 302 of the Penal
Code for committing murder of the victim and, as such, Appellate Division
is of the view that the alteration of charge against the convict-appellant
from Section 11(Ka) of Nari-O-Shishu Ain to Section 302 of the Penal Code
will not cause prejudice to him. .....Chaitonya Sarkar =VS= The State,
(Criminal), 2024(1) [16 LM (AD) 83]
....View Full Judgment
|
Chaitonya Sarkar =VS= The State |
16 LM (AD) 83 |
Section 302
|
The Evidence Act, 1872
Section 8
The Penal Code, 1860
Section 302
The Code of Criminal Procedure, 1898
Section 35A
Sentence commuted from death to imprisonment for life–– On the day of
occurrence the appellant absconded and his trial was held and conviction
and sentence was confirmed by the High Court Division while he was still on
the run. When he was arrested, by then long eighteen years had passed. This
is a relevant fact under section 8 of the Evidence Act unerringly pointing
to the guilt of the appellant. Appellate Division is of the view that the
sentence of the appellant may be commuted from death to imprisonment for
life. .....Anowar Hossain(Md.) =VS= The State, (Criminal), 2022(2) [13 LM
(AD) 316]
....View Full Judgment
|
Anowar Hossain(Md.) =VS= The State |
13 LM (AD) 316 |
Section 302
|
The Code of Criminal Procedure, 1898
Section 367 (5) r/w
The Penal Code, 1860
Section 302
Capital Sentence: Bangladesh Perspective– Bangladesh, like its neighbours
and majority of the commonwealth members, retain capital punishment, though
it is limited to capital offences only. Bangladesh general law, as it
stands today, is slightly at variance with that in India in that a
sentencing Court in Bangladesh must assign reasons whether it awards death
sentence or the alternative sentence of imprisonment for life, while in
India, only death sentences must be justified by special reasons.
General substantive legislation i.e. the Penal Code fixes the penalty that
can be awarded, while the general procedural legislation i.e the Code of
Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be
followed in sentencing a person convicted of an offence punishable under a
penal provision of the Pena Code.
Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as
amended) provides that where the Court condemns a convict with death
sentence or in the alternative awards imprisonment for life or for a tem of
years, the Court shall state reasons for the sentence awarded. No
sentencing section in the Penal Code specify any particular sentence. They
do, instead specify the maximum sentence, often with alternative, whether
custodial or not, and thereby equip the Court with a great deal of
discretion.
As death sentence in Bangladesh under the Penal Code is not mandatory and
alternative sentence of life imprisonment can, at the discretion of the
Court, as discussed above, under the heading “sentencing principles in
Bangladesh”, be awarded, only in appropriate cases of murder, where
aggravating factors outweigh mitigating factors, such as provocation etc.
are absent death sentences are passed at the Courts’ discretion. Our
Courts apply general deterrence, retribution, commensurability,
proportionality rationales, motive, personal circumstances of the convict.
Antecedent facts leading to the commission of the offence, play decisive
role in the determination of sentence. Thus the Appellate Division in
Nowsher Ali – V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar
–V-State (40 DLR (AD) 139) commuted death sentence in wife killing cases
because the couple’s union were not “blissful” and were rather
“rancorous”.
Death sentences are however deemed appropriate when the convict act in cold
blood without provocation, which are so heinous that arouse judicial
indignation.
Apart from the cases of murder, which are punishable under section 302 of
the Penal Code, capital punishment can be awarded for gang rape,
trafficking of children, women, for seriously injuring a child or a women
by acid throwing under a special legislation called Women and Children
Cruelty Act, 2013. While exercising their discretion, take account of all
those factors as they take in sentencing a murderer under the Penal Code
provisions. (Paras:1082-1087); .....Allama Delwar Hossain Sayedee =VS=
Government of Bangladesh, [2 LM (AD) 76]
....View Full Judgment
|
Allama Delwar Hossain Sayedee =VS= Government of Bangladesh |
2 LM (AD) 76 |
Section 302/34
|
The Evidence Act, 1872
Section 30
The Penal Code, 1860
Section 302/34
A voluntary and true confession made by an accused can be taken into
consideration against a co-accused by virtue of section 30 of the Evidence
Act–– A voluntary and true confession made by an accused can be taken
into consideration against a co-accused by virtue of section 30 of the
Evidence Act but as a matter of prudence and practice the Court should not
act upon it to sustain a conviction of the co-accused without full and
strong corroboration in material particulars both as to the crime and as
to his connection with the crime. Having regard to the evidence available
on record, Appellate Division is of the opinion that this is not a case
where the prosecution case was entirely based on the confessional
statements of the co-accused for connecting accused Mohiuddin. Rather we
find that the prosecution case was based on other evidence to establish the
circumstances pointing towards the guilt of the accused Mohiuddin. In the
light of evidence (both oral and documentary) on time, place and manner of
occurrence provide a coherent links connecting the appellant Mohiuddin with
the occurrence. .....Dr. Miah Md. Mohiuddin =VS= The State, (Criminal),
2022(2) [13 LM (AD) 363]
....View Full Judgment
|
Dr. Miah Md. Mohiuddin =VS= The State |
13 LM (AD) 363 |
Sections 302/34
|
The Evidence Act, 1872
Section 30
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Section 35A
Sentence of death is commuted to imprisonment for life–– The provision
of Section 30 is not conclusive for the reason that only if the Court feels
the confession is corroborated with other materials on record, then that
can be used against the co-accused and in that situation section 30 of the
Evidence Act will come into play. The confession of the co-accused is not
the substantive piece of evidence and that it can only be used to confirm
the conclusion drawn from other evidence in a criminal trial–– It
appears from the post-mortem report that the victim received as many as 10
injuries. Although the murder had been committed in a premeditated and
calculated manner with extreme cruelty and brutality, it is difficult to
say conclusively as to whose assault the victim died. The appellants Iqbal
Sheikh, Md. Dawlat Fakir and Firoz Mollah have been languishing in death
cell for more then 12 years. No absolute and unqualified rule can be laid
down that in every case in which there is long delay in the execution of
death sentence, the sentence must be substituted by life imprisonment.
However, considering the facts and circumstances of the case, particularly,
previous quarrel between the convicts Iqbal and Zaziron with the victim and
that the nature of the offence, the diverse circumstances attended upon it,
its impact upon the contemporary society, Appellate Division is of the view
that ends of justice will be met if the sentence of death is commuted to
one of imprisonment for life. .....Dawlat Fakir(Md.) =VS= The State,
(Criminal), 2022(2) [13 LM (AD) 413]
....View Full Judgment
|
Dawlat Fakir(Md.) =VS= The State |
13 LM (AD) 413 |
Section 302/34
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 25(1), 26(2) (3) (4), 27(3)
Penal Code
Section 302/34
The scheduled offence of the Ain and offences defined in the Penal Code can
be tried jointly by the Tribunal:
The words, “ট্রাইব্যুনাল একটি
দায়রা আদালত বলিয়া গণ্য হইবে
এবং এই আইনের অধীন যে কোন
অপরাধ বা তদনুসারে অন্য কোন
অপরাধ বিচারের ক্ষেত্রে
দায়রা আদালতের সকল ক্ষমতা
প্রয়োগ করিতে পারিবে।” of Section
25(1) of the Ain are significant. Those words clearly indicate that the Ain
authorises the Tribunal to try both scheduled offence of the Ain and
non-scheduled offence together and in such circumstances the Tribunal shall
exercise all the powers of a Court of Sessions. Sub-Sections (2), (3) and
(4) of Section 26 of the Ain relate to the appointment of the Judge of the
Tribunal which provide that Judge of the Tribunal should be appointed from
the District and Sessions Judges. The Government may give responsibility to
the District and Sessions Judge to act as Judge of the Tribunal in addition
to his charge if it feels necessary. It is also provided that Additional
District and Sessions Judges are also to be included as District and
Sessions Judge. Sub-section 3 of Section 27 of the Ain authorises Tribunal
to try scheduled and non-scheduled offences jointly for the interest of
justice following the provisions of the Ain. In view of the discussions
made above we have no hesitation to hold that the scheduled offence of the
Ain and offences defined in the Penal Code can be tried jointly by the
Tribunal. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB
[2023] AD 1
....View Full Judgment
|
The State Vs. Nurul Amin Baitha and anr |
18 SCOB [2023] AD 1 |
Section 302/34
|
In the instant case charge was framed for the commission of offence that
the respondent had killed his wife demanding dowry, but it is proved that
he had killed his wife but demand of dowry has not been proved. Since the
Tribunal has authority to try scheduled and non-scheduled offence together
and it is authorized to act as Court of Sessions, we do not find any
jurisdictional error if the accused is convicted and sentenced for the
charge of killing wife. Such analogy is also applicable for the Appellate
Court as well. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18
SCOB [2023] AD 1
....View Full Judgment
|
The State Vs. Nurul Amin Baitha and anr |
18 SCOB [2023] AD 1 |
Sections 302/ 34
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(3)/30 r/w
The Evidence Act, 1872
Section 30
The Penal Code, 1860
Sections 302/ 34
A confession made by a co-accused in a joint trial for the same offence
affecting himself and the others may be taken into consideration to lend
any additional assurance to the substantive evidence on record.–– In
this particular case there is no corroborative evidence to lend support of
the confessional statement of condemned prisoner-Tariqul in finding the
guilt of two other condemned prisoners, namely Md. Ismail Hossain Babu and
Sonaruddi. ––Thus, it is our considered view that the prosecution has
failed to prove the charge against condemned prisoners-Ismail Hossain Babu
and Sonaruddi beyond doubt. ––However, considering the fact that the
condemned prisoner-Tariqul Islam alias Bhota is in death cell about 14
years and by this time he has been experiencing the agony of death in his
death cell, Appellate Division is of the view that, justice will be best
served if the sentence of death is commuted to imprisonment for life.
.....Ismail Hossain Babu(Md.) =VS= The State, (Criminal), 2022(2) [13 LM
(AD) 323]
....View Full Judgment
|
Ismail Hossain Babu(Md.) =VS= The State |
13 LM (AD) 323 |
Section 302
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(Ka)/30
Penal Code
Section 302 and
Code of Criminal Procedure, 1898
Section 238
In section 238 of the Code, it has been provided that when a person is
charged with an offence consisting of several particulars, a combination of
some only of which constitute a complete minor offence, and such
combination is proved, he may be convicted of the minor offence though he
was not charged with it. The section further provides that when a person is
charged with an offence, and facts are proved which reduce it to a minor
offence, he may be convicted for commission of minor offence, although he
is not charged with it. In the present case although the accused were
charged with the offence of murder for dowry under Sections 11(Ka)/30 of
the Ain, on the proven facts they were convicted for the offence of murder
only under section 302/34 of the Penal Code. In terms of punishment, it is
very much clear that an offence under Section 11(Ka) of the Act is graver
than an offence punishable under section 302 of the Penal Code. Hence, an
offence under section 302 of the Penal Code can be considered as a minor
offence than that of an offence under Section 11(Ka) of the Ain and
therefore, framing of charge was not required for conviction. ...The State
Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1
....View Full Judgment
|
The State Vs. Nurul Amin Baitha and anr |
18 SCOB [2023] AD 1 |
Section 302/34
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(Ka)/30
Penal Code
Section 302/34
Alternation of charge from 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain,
2000 to Section 302 of the Penal Code will not cause prejudice to the
accused:
In order to convict a person under minor offence, though charged under
major offence, the ingredients constituting the offence under the minor
offence should be common as that of the ingredients constituting major
offence and to convict him, some of the ingredients of the major offence
could be absent. Since the offence under Sections 11(Ka)/30 of the Ain is a
graver offence wherein the charge as to killing of the wife has been framed
along with charge of demanding dowry than that of the case under Section
302/34 where the charge of killing of any person is usually be brought
against accused, we are of the view that the alternation of charge from
11(Ka) of the Ain to Section 302 of the Penal Code will not cause prejudice
to the accused. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18
SCOB [2023] AD 1
....View Full Judgment
|
The State Vs. Nurul Amin Baitha and anr |
18 SCOB [2023] AD 1 |
Sections 302/34 and 201
|
The Penal Code, 1860
Sections 302/34 and 201
The Code of Criminal Procedure, 1898
Section 35A
It does not require any reference to any decision for the legal proposition
that in the case of killing of a wife, if it is found that wife stayed with
the husband at the relevant time, the husband owes an explanation as to how
his wife was killed or was done to death.
The appeal is allowed in part. The judgment and order of the High Court
Division so far as it relates to respondent No.1-Tajel Sheikh @ Md. Tajul
Sheikh (as described in the cause title of the petition of appeal, his
correct name is Md. Tajel Sheikh as mentioned in the charge sheet and in
the judgment of the trial Court) and Nurul Hoque (as described in the cause
title of the petition of appeal, his correct name is Dr. Nurul Haque as
mentioned in the charge sheet and the judgment of the trial Court) is set
aside. The order of conviction and sentence passed by the learned Sessions
Judge, Rajbari in Sessions Case No.24 of 1999 convicting them under
sections 302 and 302/201 of the Penal Code respectively and sentencing
Tajel Sheikh to suffer imprisonment for life and to pay a fine of taka
10,000∙00(ten thousand) in default to suffer rigorous imprisonment for
1(one) year more and sentencing Dr. Nurul Haque to suffer rigorous
imprisonment for five years and to pay a fine of taka 5,000∙00 in default
to suffer rigorous imprisonment for six months is restored. But Dr. Nurul
Hoque shall get the benefit of section 35A of the Code of Criminal
Procedure, i.e. the period which he suffered in jail hajat as under trial
prisoner shall be deducted from his sentence. .....The State =VS= Tajel
Sheikh @ Md. Tajul Sheikh, (Criminal), 2022(2) [13 LM (AD) 306]
....View Full Judgment
|
The State =VS= Tajel Sheikh @ Md. Tajul Sheikh |
13 LM (AD) 306 |
Sections 302/34 or 302/109
|
The Constitution of Bangladesh, 1972
Article 105 and
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
The Penal Code, 1860
Sections 302/34 or 302/109
It is established principle of law that a judgment of the apex Court is
final on both questions of law and of fact. It is precedent for itself and
for all the Courts subordinate to it and the finality of the judgment
cannot be impinged on. In the case in hand leave was granted in Review
Petitions and thereafter criminal appeals were filed which are now under
consideration in the instant judgment. As per provision of Article 105 of
the Constitution of the People’s Republic of Bangladesh and Order XXVI of
the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 this
Division is competent enough to reconsider or interfere with its earlier
decision to prevent abuse of its process and to cure gross miscarriage of
justice. ––The trial Court as well as the High Court Division and this
Division by majority committed illegality misreading the evidence. In view
of the reasons stated hereinabove, Appellate Division is of the view that
the judgment and order dated 10.09.2014 passed by this Division with
majority view dismissing the appeals and thereby convicting the
accused-appellants was not justified and, therefore, the same is reviewed
and all the criminal appeals arose from the Criminal Review Petitions
No.68, 73,74 and 89 of 2017are allowed. .....Shamsu Habib alias Biddut =VS=
The State, (Criminal), 2023(1) [14 LM (AD) 422]
....View Full Judgment
|
Shamsu Habib alias Biddut =VS= The State |
14 LM (AD) 422 |
Sections 302/34
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(Ka)/30
Penal Code
Sections 302/34
The High Court Division as an Appellate Court has the jurisdiction to
convert the conviction under Section 11(Ka)/30 of the Ain to one under
Sections 302/34 of the Penal Code as appeal is the continuation of an
original case:
Our final conclusion is that the High Court Division as an Appellate Court
has the jurisdiction to convert the conviction under Section 11(Ka)/30 of
the Ain to one under Sections 302/34 of the Penal Code as appeal is the
continuation of an original case. An Appellate Court has the same power as
that of the trial Court i.e. the Tribunal and therefore, as an Appellate
Court the High Court Division in the present case is competent to convert
the conviction to secure the ends of justice. Undoubtedly such an Act of
the High Court Division shall in no way prejudice the accused and State;
otherwise order of remand shall entail unnecessary time, money and energy
due to fruitless or useless prosecution and defence. Similarly, the
Tribunal which is created under the Ain shall be deemed to be the Court of
Sessions of original jurisdiction and, is entitled to alter/amend the
charge framed under Section 11(Ka) of the Ain to one under Section 302 of
the Penal Code and to dispose of the case finally in accordance with law if
the accused is not otherwise prejudiced. ...The State Vs. Nurul Amin Baitha
and anr, (Criminal), 18 SCOB [2023] AD 1
....View Full Judgment
|
The State Vs. Nurul Amin Baitha and anr |
18 SCOB [2023] AD 1 |
Sections 302/ 34
|
In a criminal case conviction can be based even on the testimony of a sole
witness if it is credible– Four of them were eye witnesses and rest of
them were the circumstantial witnesses who corroborated the eyewitnesses in
material particulars. Appellate Division has also perused the documents
namely, post-mortem report and medical examination report. In a criminal
case conviction can be based even on the testimony of a sole witness if it
is credible. The defence by cross-examining the prosecution witnesses could
not touch the credibility of those P.W.s. The trial court and the High
Court Division found that the PWs were credible. Both the trial Court and
the High Court Division concurrently found that the prosecution with the
evidence of P.Ws.2, 3, 4 and 5 which was corroborated by the post-mortem
report and other circumstantial evidence proved the charge levelled against
the accused-appellant Alais Miah @ Ilias Miah beyond reasonable doubt.
Appellate Division is of the view that the prosecution has successfully
proved the guilt of the accused-appellant Alais Miah @ Ilias Miah beyond
reasonable doubt. The judgment and order of the High Court Division having
been passed on proper assessment and consideration of material evidence on
record, this Division does not find any illegality or infirmity in the
impugned judgment and order and as such they do not require any
interference by this Court. There is no merit in the appeal. .....Alais
Miah @ Ilias Miah =VS= The State, (Criminal), 2022(2) [13 LM (AD) 293]
....View Full Judgment
|
Alais Miah @ Ilias Miah =VS= The State |
13 LM (AD) 293 |
Sections 302/34
|
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Sections 164 and 364
Sentence of death–– From the confessional statement of the appellant,
other evidence both oral and circumstantial revealed from the evidence of
prosecution witnesses, Appellate Division has no hesitation to hold that
the prosecution has been able to prove the charge against the appellant
beyond all shadow of doubt–– This Division does not find any illegality
in the judgment and order of the High Court Division. Accordingly, the
appeal is dismissed. The order of conviction and sentence awarded by the
trial Court and confirmed by the High Court Division is hereby maintained.
.....Mizanur Rahman Mizan(Md.) =VS= The State, (Criminal), 2022(2) [13 LM
(AD) 348]
....View Full Judgment
|
Mizanur Rahman Mizan(Md.) =VS= The State |
13 LM (AD) 348 |
Sections 302/34
|
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Section 161
The prosecution failed to examine Investigating Officer that the defence
could not avail the opportunity to take contradictions of the evidence–
The prosecution failed to examine Investigating Officer of the case,
Appellate Division does not find any explanation as to why the
Investigating Officer had not been examined inasmuch as the defence, as it
appears from the cross-examination of the prosecution witnesses,
particularly, the PWs 2, 3 and 4, put questions that they did not disclose
to the Investigating Officer about the fact that the appellant asked the
victim to stay with him at about 8-00 pm on 3-12-1999. Due to
non-examination of the Investigating Officer the defence could not avail
the opportunity to take contradictions of the evidence of those 3 PWs with
their previous statements recorded under section 161 of the Code of
Criminal Procedure. Consequently, the defence has been prejudiced
seriously. It was bounden duty of the prosecution to examine the
Investigating Officer. A serious reflection is cast on the propriety of the
trial itself and the validity of the conviction due to non-examination of
the Investigating Officer. This Division is of the view that the appeal
merits consideration. Accordingly, appeal is allowed. The judgment and
order of the courts below are hereby set aside. .....Abul Hasem =VS= State,
(Criminal), 2022(2) [13 LM (AD) 358]
....View Full Judgment
|
Abul Hasem =VS= State |
13 LM (AD) 358 |
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.
|
Kabir Howlader vs State |
5 BLC (AD) 12 |
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
|
State vs Ful Mia |
5 BLC (AD) 41 |
Sections 302/148/447/109 and 34
|
The Penal Code, 1860
Sections 302/148/447/109 and 34
The Code of Criminal Procedure, 1898
Section 35A
Sentence commuted from death to imprisonment for life– It appears from
the facts and circumstances of the case that the accused persons went to
the place of occurrence with an object to kill P.W.1 and entering into the
place of occurrence room they asked the victim Lovely about his whereabouts
and not getting the target they assaulted the victim Hosne Ara Begum Lovely
who succumbed to injuries. At one stage appellant Lachu Miah @ Kamal Ahmed
pressing the throat of victim Aklima Begum went outside the dwelling hut.
Her dead body was recovered from a nearby pond. Coming to the facts of the
case, it is proved that appellants Mujib Ali and Lachu Miah had killed
victim Hosne Ara Begom Lovely and her 1½ year daughter Aklima Begom which
were highly graved. Nevertheless, in view of the above discussion Appellate
Division feels hesitant in endorsing the death penalty awarded to them by
the trial Court and confirmed by the High Court Division. It is difficult
to hold that it was pre-planned, calculated, cold-blooded murder of the
victims. Moreover, they are in death cell about 14(fourteen) years. In such
circumstances, their sentence may be commuted from death to imprisonment
for life. .....Mujib Ali =VS= The State, (Criminal), 2022(2) [13 LM (AD)
406]
....View Full Judgment
|
Mujib Ali =VS= The State |
13 LM (AD) 406 |
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.
|
Abu Jamal and another vs State |
5 BLC (AD) 157 |
Section 302
|
The Penal Code, 1860
Section 302
The Code of Criminal Procedure, 1898
Section 35A
Sentence commuted from death to imprisonment for life–– It appears that
the killing of Nur Nabi @ Nabin by friend Raju was not preplanned and
premeditated murder. In carrying out the order of Md. Younus @ Yousuf
friend Raju took dagger from him and inflicted blows to Nur Nabi @ Nabin.
In such circumstances, Appellate Division is of the view that his sentence
may be commuted from death to imprisonment for life. .....Raju(Md.) =VS=
The State, (Criminal), 2022(2) [13 LM (AD) 421]
....View Full Judgment
|
Raju(Md.) =VS= The State |
13 LM (AD) 421 |
Sections 302/34
|
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Section 35A
Commuted to imprisonment for life–– It appears that the
convict-appellant Rana is in the condemned cell for more than 14 (fourteen)
years suffering the pangs of death. It was held in the case of Nazrul Islam
(Md) vs. State reported in 66 DLR(AD) 199 that “Lastly with regard to the
period of time spent by the accused in the condemned cell, there are
numerous decisions of this Division which shed light on this aspect. In
general terms, it may be stated that the length of period spent by a
convict in the condemned cell is not necessarily a ground for commutation
of the sentence of death. However, where the period spent in the condemned
cell is not due to any fault of the convict and where the period spent
there is inordinately long, it may be considered as an extenuating ground
sufficient for commutation of sentence of death.” .....Gias =VS= The
State, (Criminal), 2022(2) [13 LM (AD) 446]
....View Full Judgment
|
Gias =VS= The State |
13 LM (AD) 446 |
Section 302
|
The Evidence Act, 1872
Section 24
The Penal Code
Section 302
When the victim is killed while in the custody of her husband then the
burden is upon the husband to explain how his wife met her death–– With
regard to the victim’s death while in the custody of her husband, the
evidence on record shows that the appellant used to stay at his shop. There
was no evidence that on that night he was sleeping in his own house. Hence,
there is sufficient explanation from the appellant that he was not present
in the house when his wife was attacked, and provision of section 106 of
the Evidence Act are not applicable in the facts of the instant case.
––Appellate Division finds that the doubt created by the evidence on
record indicate the innocence of the convict appellant. The judgement of
conviction and sentence awarded by the trial Court is not based on a proper
assessment of the evidence on record. There was no legal evidence on which
to base the conviction of the appellant. The High Court Division fell into
the same error as the trial Court. ––The appeal is allowed and the jail
petition is disposed by majority decision. (Majority view: Per Mr. Justice
Muhammad Imman Ali) .....Abdul Awal Khan(Md.) =VS= The State, (Criminal),
2023(1) [14 LM (AD) 401]
....View Full Judgment
|
Abdul Awal Khan(Md.) =VS= The State |
14 LM (AD) 401 |
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.
|
Khondaker Saiful Islam Vs. The State |
3 MLR (AD) 117 |
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.
|
Shaha and others Vs. The State |
2 MLR (AD) 162 |
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.
|
State represented by the Solicitor of the Government of Bangladesh Vs. Giasuddin and others |
4 MLR (AD) 29 |
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.
|
Babul Farajee Vs. The State |
4 MLR (AD) 149 |
Sections 302/34
|
নারী ও শিশু নির্যাতন দমন আইন,
২০০০
Section 11(Ka)/30
The Penal Code, 1860
Sections 302/34
Appellate Court has the jurisdiction to convert the conviction under
Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code
as appeal is the continuation of an original case–– The High Court
Division as an Appellate Court has the jurisdiction to convert the
conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34
of the Penal Code as appeal is the continuation of an original case. An
Appellate Court has the same power as that of the trial Court i.e. the
Tribunal and therefore, as an Appellate Court the High Court Division in
the present case is competent to convert the conviction to secure the ends
of justice. Undoubtedly such an Act of the High Court Division shall in no
way prejudice the accused and State; otherwise order of remand shall entail
unnecessary time, money and energy due to fruitless or useless prosecution
and defence. Similarly, the Tribunal which is created under the Ain shall
be deemed to be the Court of Sessions of original jurisdiction and, is
entitled to alter/amend the charge framed under Section 11(Ka) of the Ain
to one under Section 302 of the Penal Code and to dispose of the case
finally in accordance with law if the accused is not otherwise prejudiced.
.....The State =VS= Nurul Amin Baitha and another, (Criminal), 2023(1) [14
LM (AD) 615]
....View Full Judgment
|
The State =VS= Nurul Amin Baitha and another |
14 LM (AD) 615 |
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.
|
Sabiruddin Mondal Vs. The State |
4 MLR (AD) 151 |
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.
|
Zahiruddin Vs. The State |
1 MLR (AD) 248 |
Section 302, 303
|
Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995
and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra
vires the Constitution, despite repeal of the Ain of 1995, all cases
pending and the appeals pending under the repealed Ain shall be regulated
under the said law, but on the question of imposing sentence, the sentences
prescribed in respect of those offences shall hold the field until new
legislation is promulgated. I hold that there was total absence of proper
application of the legislative mind in promulgating those Ains, which may
be rectified by amendments. In respect of section 303 of the Penal Code,
the punishment shall be made in accordance with section 302 of the Penal
Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan
(Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held
under the repealed Ain, while dealing with the question of sentence, the
alternative sentences provided in the corresponding offences prescribed in
the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed. ...BLAST &
Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1
....View Full Judgment
|
BLAST & Others Vs. Bangladesh & Others |
1 SCOB [2015] AD 1 |
Section 302/34
|
Power of conversion of conviction from special law to general law:
The High Court Division was not right in converting the conviction under
section 302/34 of the Penal Code from those of under section 11(ka)/30 of
the Ain 2000, a special law, as it does not have that authority to do so
unless charge is framed under section 302/34 of the Penal Code. …State
Vs. Nurul Amin Baitha & another, (Criminal), 11 SCOB [2019] AD 13
....View Full Judgment
|
State Vs. Nurul Amin Baitha & another |
11 SCOB [2019] AD 13 |
Section 302
|
Nari-O-Shishu Nirjatan Daman Ain 2000,
Section 11(Ka) and
Penal Code 1860, section 302:
When dowry demand has been proved and the murder was cold blooded, brutal
and without provocation, death sentence should not be commuted:
The murder was cold blooded and brutal without any provocation. Therefore,
the submissions of the learned Advocate for the appellant that imprisonment
for life may be awarded to the appellant by converting his conviction from
11 (ka) of the Nari-OShishu Nirjatan Daman Ain to section 302 of the Penal
Code do not hold good on the facts and in circumstances of the case in
hand. Moreover, demand of Tk.10000/- as dowry has been proved by the
satisfactory evidence as found by both the Courts below. …Md. Abdul Haque
Vs. The State, (Criminal), 15 SCOB [2021] AD 58
....View Full Judgment
|
Md. Abdul Haque Vs. The State |
15 SCOB [2021] AD 58 |
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.
|
State Vs. Mofazzal Hossain Pramanik |
43 DLR (AD) 64 |
Section 302
|
The Penal Code, 1860
Section 302
The Code of Criminal Procedure
Section 35A
Nari-o-Shishu Nirjatan Daman Ain-2000 (amended in 2003)
Section 11 (Ka)/30
When wife dies within the custody of her husband, the husband is to explain
the of her death–– In the case of Nausher Ali Sarder others vs The
State, 39 DLR (AD) 194 it has been held that death sentence was commuted to
imprisonment for life because "bitter matrimonial relationship played a
part in this nefarious situation and while inflicting sentence such
relationships cannot be overlooked." ––This criminal appeal is
dismissed. The conviction imposed upon the condemned-appellant under
section 302 of the Penal Code passed by the trial Court and confirmed by
the High Court Division is maintained but his sentence of death is commuted
to one for imprisonment for life and also to pay a fine of Taka 10,000 (ten
thousand), in default, to suffer rigorous imprisonment for 1 (one) month
more. He will get the benefit of section 35A of the Code of Criminal
Procedure and other remissions as admissible under the Jail Code.
.....Mamun @ Mamun Ar Rashid (Md) =VS= State, (Criminal), 2023(1) [14 LM
(AD) 264]
....View Full Judgment
|
Mamun @ Mamun Ar Rashid (Md) =VS= State |
14 LM (AD) 264 |
Sections 302/34/114
|
Dying declaration–– P.Ws.1, 2, 3, 4, 5, 7 and 8 are interested
witnesses and the alleged dying declaration made orally in presence of
those interested witnesses cannot be safe to be relied on–– If a dying
declaration is made voluntarily and is found to be genuine and is free from
all reasonable doubt keeping in view all the evidence on record it is legal
to convict the accused. But in the present case, it has already been found
that P.Ws.1, 2, 3, 4, 5, 7 and 8 are interested witnesses and the alleged
dying declaration made orally in presence of those interested witnesses
cannot be safe to be relied on. More so, P.W.9, the doctor performing
autopsy of the deceased stated in his cross-examination that the death of
the victim took place instantly after receiving the injuries from which it
is logically deduced that the victim was not in a fit condition to make
dying declaration. In view of the foregoing discussion, Appellate Division
finds that the alleged dying declaration of the victim is not found to be
genuine and as such the conviction of the accused Md. Shamim on the basis
of the said dying declaration is not tenable in the eye of law. ––The
trial Court as well as the High Court Division committed illegality
misreading the evidence in so far as it relates to the accused Md. Shamim.
For the reasons stated hereinabove, Appellate Division is of the view that
the judgment and order convicting the convict-appellant Md. Shamim is not
justified and, therefore, this Criminal Appeal is liable to be allowed.
.....Shamim(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 268]
....View Full Judgment
|
Shamim(Md.) =VS= The State |
14 LM (AD) 268 |
Sections 302/34
|
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure
Section 35A
Sentence commuted from death to imprisonment for life–– The judgment
and order of conviction awarded by the trial Court and affirmed by the High
Court Division is hereby maintained. However, the sentence of the
appellants is commuted from death to one of imprisonment for life and they
are ordered to pay a fine of Tk.50,000/- each, in default, to suffer
rigorous imprisonment for 1 (one) year more. The appellants shall get
benefit of section 35A of the Code of Criminal Procedure in calculation of
their sentence and other remissions as admissible under the Jail Code.
––Learned Senior Counsel, lastly submits that considering the facts and
circumstances of the case and that the appellants are in death cell for
about 14 years the sentence awarded to them may be commuted to imprisonment
for life. Appellate Division finds force in the submissions. .....Mehedi
Hasan(Md.) alias Rajib =VS= The State, (Criminal), 2023(1) [14 LM (AD) 397]
....View Full Judgment
|
Mehedi Hasan(Md.) alias Rajib =VS= The State |
14 LM (AD) 397 |
Sections 302/34
|
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure
Section 35A
Youth of the condemned-prisoner at the time of commission of the
offence–– It appears from documents on record that the condemned
prisoner was apprehended in connection of the present case on 20.04.2007
and since then he remained in normal cell till delivery of the verdict by
the trial Court. He was sent to condemned cell after pronouncement of the
judgment and order of conviction and sentence by the trial Court on
08.10.2009, which indicates that he has suffered long pangs of the death in
the condemned cell for around 13[thirteen] years and more than 3[three]
years in normal cell. Long suffering in the condemned cell as well as
normal cell may, sometimes, take into consideration of punishment to be
commuted relying upon the facts and circumstances of the case as noted
above. ––It is also evident that the condemned prisoner was twenty
years old at time of occurrence and arrest. Appellate Division has given
Appellate Division’s anxious thought over the duration of suffering both
in the normal cell as well as condemned cell and age of the condemned
prisoner and the facts and circumstances of the case. ––This criminal
appeal is dismissed with modification. However, the sentence of death of
the condemned prisoner is commuted to imprisonment for life and also to pay
a fine of taka 5,000.00, in default, to suffer rigorous imprisonment for
1[one] year more. He will get the benefit of section 35A of the Code of
Criminal Procedure in calculation of his sentence. .....Montu Rahman(Md.)
=VS= The State, (Criminal), 2023(1) [14 LM (AD) 413]
....View Full Judgment
|
Montu Rahman(Md.) =VS= The State |
14 LM (AD) 413 |
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
|
State =VS= Md Zakir Hossain |
6 LM (AD) 260 |
Sections 302/34
|
Wife killing case–– To how the death sentence could be reduced to that
of the imprisonment for life. Different pleas were taken for consideration
of commutation of death sentence as there was no absolute rule in this
regard. Prolonged incarceration of the condemned prisoner in the condemned
cell could be considered as mitigating circumstances in some cases. Record
of previous significant history of criminal activity along with age of the
condemned prisoner has also been considered for commutation of death
sentence to imprisonment for life in some other cases. ––The present
case in Appellate Division’s hand is known as wife killing case. The wife
was killed in the house of the respondent. The prosecution by adducing
evidence proved the case beyond shadow of doubt against the respondent as
discussed earlier, but the question is, prolonged incarceration spent in
the prison including condemned cell is not because of fault of the
respondent which could be considered as an extenuating ground for
commutation of death sentence to life imprisonment. It appears from the
record that the respondent has been in prison since his arrest dated
28.12.1998. His custody never changed granting him on bail. More than 21/2
years he served out with pangs and agony of the death in the condemned cell
till delivery of the impugned judgment and order dated 07.01.2004 of the
High Court Division. Nevertheless, the respondent has no previous
conviction and previous record [PC.PR] which trends to show that his
character is not inherent. ––Facts and circumstances of the case, it is
Appellate Division’s considered view that the decision of the learned
Judges of the High Court Division stands justified and the judgment and
order of the High Court Division does not call for any interference by this
Division. This criminal appeal is dismissed without any order as to costs.
.....The State =VS= Abu Sayed, (Criminal), 2023(1) [14 LM (AD) 590]
....View Full Judgment
|
The State =VS= Abu Sayed |
14 LM (AD) 590 |
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
|
Babul alias Fakrul =VS= The State |
6 LM (AD) 181 |
Section 302/201/34
|
The Penal Code, 1860
Section 302/201/34
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Rule 1 of Order XXVI (Part IV)
A review cannot be granted to urge fresh grounds when the judgment itself
does not reveal an error apparent on the face of the record–– The
nature of the offence it appears to us that the petitioner is in no way
entitled to get any sympathy. Appellate Division does not find any
mitigating or extenuating circumstances on record for commutation of the
sentence of death. Delay in the disposal of this case cannot by itself be a
ground for commuting the sentence of death to one of imprisonment for life
since the crime committed by the petitioner was premeditated senseless,
dastardly and beyond all human reasonings. ––This Division is of the
view that there is hardly any scope of rehearing of the matter afresh as a
court of appeal in a review petition. Further in the instant petition the
learned counsel fails to point out any error in the judgment apparent on
the face of the record. Therefore, all the review petitions merit no
consideration and accordingly those are dismissed. .....Zahangir Alam(Md.)
=VS= The State, (Criminal), 2023(1) [14 LM (AD) 607]
....View Full Judgment
|
Zahangir Alam(Md.) =VS= The State |
14 LM (AD) 607 |
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.
|
Billal Vs. The Stat |
5 MLR (AD) 244 |
Section 303
|
Only provision in which the court cannot exercise the discretionary power
in awarding the sentence is section 303, which provides that “whoever,
being under sentence of imprisonment for life commits murder shall be
punished with death”. I find no rational justification for making a
distinction in the matter of punishment between two classes of offenders,
one is, under the sentence of life imprisonment, who commits murder whilst
another, not under the sentence of life imprisonment. ...BLAST & Others Vs.
Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1
....View Full Judgment
|
BLAST & Others Vs. Bangladesh & Others |
1 SCOB [2015] AD 1 |
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.
|
Jatin Chandra Sil Vs State |
43 DLR (AD) 223 |
Section 304 (Part II)
|
Death sentence modification to suffer rigorous imprisonment for 10(ten)
years–– Appellate Division is of the view that the offence committed by
the appellant is not culpable homicide amounting to murder. Moreover, there
is nothing on record suggested that the appellant intended to cause the
death of his son. In such view of the matter this Division is of the
opinion that the offence committed by the appellant falls within the second
part of section 304 of the Penal Code. Accordingly the jail appeal is
allowed in part. The conviction of the appellant is altered from one under
section 302 to one under the second part of section 304 of the Penal Code.
The appellant is sentenced to suffer rigorous imprisonment for 10(ten)
years. Since the appellant has been in custody from the date of his arrest
on 02.04.2007, the sentence awarded by us has been served out. Accordingly,
the appellant is directed to be released from jail forthwith unless he is
wanted in connection with any other case. ...Jasim Rari(Md.) =VS= The
State, (Criminal), 2021(2) [11 LM (AD) 426]
....View Full Judgment
|
Jasim Rari(Md.) =VS= The State |
11 LM (AD) 426 |
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
|
State Vs. Abdul Barek & Ors. |
10 BLT (AD) 8 |
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
|
Aynul Sheikh and Anr. Vs. The State |
14 BLT (AD) 33 |
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
|
Nibir Chandra Chowdhury and Anr. Vs. State |
9 BLT (AD) 272 |
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
|
Tofayel Ahmed =VS= The State |
1 LM (AD) 511 |
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
|
Khalil Peada =VS= The State |
4 LM (AD) 374 |
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
|
Firoz Ali =VS= The State |
5 LM (AD) 223 |
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
|
The State =VS= Nayan |
4 LM (AD) 523 |
Section 304 (Part-II)
|
Culpable homicide not amounting to murder rather it can at best be held
that the death of the victim was caused not with the intention of causing
death– It appears that the accused petitioner admittedly had altercations
and quarrel with the victim and at one stage when the victim caught hold of
his collar it prompted rather provoked the convict-petitioner to catch hold
of her neck/throat and accordingly at one stage the victim died. This
cannot be termed as culpable homicide not amounting to murder rather it can
at best be held that the death of the victim was caused not with the
intention of causing death or causing bodily injury as was likely to cause
death. The conviction and sentence as handed down by the trial Court and
subsequently by the High Court Division is modified upon converting the
same under section 304 (Part-II) and accordingly the sentence which has
been handed down by the High Court Division be reduced to the sentence
already undergone. The convict-petitioner Md Sukur Ali, son of late Md
Rostom Ali Bepari, Village-Uttar Boyra, Police Station-Sonatola,
District-Bogra, be released from the custody at once if not wanted in
connection with any other case(s). .....Sukur Ali (Md) =VS= State,
(Criminal), 2022(2) [13 LM (AD) 433]
....View Full Judgment
|
Sukur Ali (Md) =VS= State |
13 LM (AD) 433 |
Section 307
|
Code of Criminal Procedure [V of 1898]
Section 239(d) and 235(3) read with
Penal Code [XLV of 1860]
Section 307
Village Court Act, 2006
Though charges were under section 323/379 of the Penal Code separately
framed against the accused petitioners but the incident of this case took
place at the same time and place of occurrence. Admittedly, section 307 is
not triable by the Village Court and since the offence was committed by the
accused petitioners in course of same transaction, there is no scope to
send the case record to the Village Court for disposal of this case.
The High Court Division held that since the village court has no
jurisdiction to try the offence under section 307 of the Penal Code, the
High Court Division is unable to accept the submission of the learned
Advocate for the accused petitioner that the of-fences of this case being
triable by the Village Court should be sent to the concerned court for
trial. In view of the discussion made above and considering the facts and
circumstances of the case, the High Court Division finds no merit in this
Rule. In the result, the Rule is discharged. Md. Ishaque Hawlader and
others -Vs.-The State and another (Criminal) 2019 ALR (HCD) Online 341
....View Full Judgment
|
Md. Ishaque Hawlader and others -Vs.-The State and another |
2019 ALR (HCD) Online 341 |
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.
|
State Vs. Tayeb Ali and others |
40 DLR (AD) 6 |
Section 307 and 324
|
On the face of being tutored, untrustworthy interested and partisan
witnesses; having previous enmity with the accused and non-corroboration of
incriminating evidences the other part of the evidences concerning the
infliction of injuries over the victims became less than trustworthy
without independent corroboration. Appellate Division finds no such
corroboration. Accordingly, this Division too holds that it will be
rationally perilous if the accused convicted on such unreliable evidences.
Consequently, this Division finds no merit in the submissions of the
learned Deputy Attorney General for the State. This Division finds no error
in discussion of the evidence and conclusion of the High Court Division
regarding the acquittal awarded to the accused appellant. .....The State
=VS= Muhammad Shafi Alam @Md. Shafi Alam @Shafiul Alam, (Criminal), 2022(1)
[12 LM (AD) 383]
....View Full Judgment
|
The State =VS= Muhammad Shafi Alam @Md. Shafi Alam @Shafiul Alam |
12 LM (AD) 383 |
Section 307
|
Penal Code, 1860
Section 307
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
|
The State -Vs.- Abul Basher Tipu |
3 ALR (AD) 211 |
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
|
Abdur Rahim Vs. Enamul Huq |
43 DLR (AD) 173 |
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
|
Md. Shamir @ Shamir Khan & Anr. Vs. The State |
11 BLT(AD) 6 |
Sections 320 and 326
|
Although 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.
|
Aminul Islam alias Ranga and others vs State |
5 BLC (AD) 179 |
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
|
Rafiqul Islam Howlader(Md) =VS= State |
8 LM (AD) 630 |
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
|
Selim (Md) =VS= State |
8 LM (AD) 360 |
Sections 323, 325, 326 and 307
|
The Code of Criminal Procedure, 1898
Section 561A r/w
Penal Code, 1860 (XLV of 1860)
Sections 323, 325, 326 and 307
Considering the facts and circumstances we do not find that the learned
Additional Metropolitan Sessions Judge, 2nd Court, Dhaka has committed any
wrong or illegality in setting aside the impugned order dated 29.07.1999
passed by the learned C.M.M., Dhaka dismissing the case and as such the
High Court Division also did not commit any wrong or illegality in
upholding this judgment and order passed in Criminal Revision No.906 of
1999. .....Md. Shahidul Islam =VS= Shopon Bepari & another, [1 LM (AD) 530]
....View Full Judgment
|
Md. Shahidul Islam =VS= Shopon Bepari & another |
1 LM (AD) 530 |
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.
|
Abdul Jalil vs State |
4 BLC (AD) 12 |
Section 325
|
Probation of Offenders Ordinance, 1960
Sections 3(1)(Ka), 5
The Penal Code, 1860
Section 325
বিচারিক আদালতের বিজ্ঞ
বিচারক ও আপিল আদালতের বিজ্ঞ
বিচারক সম্পূর্ণরূপে ভুলে
গেছেন যে, আমাদের দেশে
"প্রবেশন অব অফেন্ডার্স
অর্ডিন্যান্স, ১৯৬০" (Probation of Offenders
Ordinance, 1960) নামে একটি আইন আছে এবং
বর্তমান মামলার প্রেক্ষাপটে
সেই আইনের ৫ ধারা
প্রয়োগযোগ্য। যখনই বিজ্ঞ
বিচারক ৩২৫ ধারার অপরাধে
আসামিকে দোষী সাব্যস্ত করলেন
তখনই উনার উচিত ছিল "প্রবেশন
অব অফেন্ডার্স অর্ডিন্যান্স,
১৯৬০"- এর ৫ ধারা বিবেচনা করা।
মামলার বিষয়বস্তু থেকে
প্রতীয়মান হয় যে, এই ঘটনা
ঘটেছিল দুই প্রতিবেশীর মধ্যে
তুচ্ছ একটা ঘটনার জের ধরে।
এইসব ক্ষেত্রে আসামিকে ১(এক)
বছরের জন্য জেলে না পাঠিয়ে
প্রবেশনে রাখা সমীচীন ছিল।
এমনকি, যেহেতু দন্ডবিধি ৩২৩
এবং ৩২৫ ধারা আপোষযোগ্য
অপরাধ (Compoundable offence) এবং যেহেতু
দুই পক্ষ হচ্ছে পরস্পর
আত্মীয় /প্রতিবেশী কাজেই
মামলাটি আপোষ মীমাংসা করা
যুক্তিযুক্ত ছিল।
"প্রবেশন অফ অফেন্ডার্স
অর্ডিন্যান্স, ১৯৬০" ধারা
৩(১)(ক) অনুসারে হাইকোর্ট
বিভাগেরও এই আইনের বিধান
প্রয়োগ করার এখতিয়ার আছে।
নজিরস্বরূপ ৫৮ ডিএলআর,৩২২-এ
প্রকাশিত আঃ খালেক বনাম
হাজেরা বেগম এবং আরেকজন
মামলার রায় দেখা যেতে পারে।
(ক) হাইকোর্ট বিভাগ; (খ) দায়রা
আদালত; (ঙ)১ম শ্রেণীর
ম্যাজিস্ট্রেট; এবং (চ) বিশেষ
ক্ষমতাপ্রাপ্ত অন্যান্য
ম্যাজিস্ট্রেটগণ।
দরখাস্তকারী নূর মোহাম্মদ-এর
দোষী সাব্যস্তের আদেশ (conviction)
এবং জরিমানা বহাল থাকবে তবে
তিনি যতদিন কারাদণ্ড ভোগ
করেছেন ততদিনই তার দন্ড
হিসেবে গণ্য হবে।... নুর
মোহাম্মদ বনাম সরকার, (Criminal), 2021(1)
[10 LM (AD) 496]
....View Full Judgment
|
Nur Mohammad =VS= State/ নুর মোহাম্মদ =বনাম= সরকার |
10 LM (AD) 496 |
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.
|
Ibrahim Mollah Vs. State |
40 DLR (AD) 216 |
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
|
Aminul Islam @ Ranga & Ors. Vs. The State |
8 BLT (AD) 129 |
Section 326 r/w 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
|
Jaher Miah (Md.) =VS= The State |
4 LM (AD) 366 |
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.
|
Abdul Jalil Vs. The Slate |
4 MLR (AD) 262 |
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.
|
Nura Miajee Vs. The State |
2 MLR (AD) 86 |
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
|
Abdur Rahman and others vs State |
51 DLR (AD) 33 |
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.
|
Wahed Ali Dewan vs State and another |
46 DLR (AD) 10 |
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
|
Md. Jabed Ali Vs. The State & Ors |
6 BLT (AD) 248 |
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
|
Md. Wahed Ali Dewan Vs. The State and another |
14 BLD (AD) 32 |
Sections 363/376/302/201/34
|
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 7/9(3) r/w
Penal Code, 1860
Sections 363/376/302/201/34
The courts must not only keep in view the rights of the criminal but also
the rights of the victim of crime and the society at large while
considering imposition of appropriate punishment– In the instant case the
appellants committed rape upon a defenseless innocent college student and
brutally murdered her in her way to college. The atrocity committed by them
as evident from their confessional statements is extremely shocking and
that reflects such mental depravity of the appellants that they deserve no
other punishment than death in order to meet the society’s cry for
justice. .....Nur Alam Howlader @Pachu @Sumon @Nurul Alam =VS= State,
(Criminal), 2022(2) [13 LM (AD) 395]
....View Full Judgment
|
Nur Alam Howlader @Pachu @Sumon @Nurul Alam =VS= State |
13 LM (AD) 395 |
Sections 364/302/380/34
|
Prosecution has not been able to prove the case of abduction and murder of
a victim– Appellate Division does not find from the evidence that any
attempt was made by the brothers of the victim to find her in the following
morning. According to the evidence of witnesses the information regarding
discovery of the death body became available at 3:00 p.m. on 24.06.2000.
None of the witnesses stated that any search was made throughout the
morning up to 3:00 p.m. on 24.06.2000. That is against human conduct and
led us to doubt the prosecution story of abduction. This Division finds
that the prosecution has not been able to prove the case of abduction and
murder of a victim. On the contrary the defence allegation that the victim
ran away from home with her lover appears to be more probable. The appeal
is allowed. The judgement and order of conviction and sentence of Khalilur
Rahman is hereby set side. The convict appellant Khalilur Rahman is
acquitted of the charge levelled against him, and he be released from
custody forthwith, if not wanted in connection with any other case.
...KhalilurRahman =VS= The State, (Criminal), 2021(2) [11 LM (AD) 199]
....View Full Judgment
|
KhalilurRahman =VS= The State |
11 LM (AD) 199 |
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.
|
Khairunnessa vs Illy Begum & another |
48 DLR (AD) 67 |
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.
|
Khairunnessa vs Illy Begum and another |
48 DLR (AD) 67 |
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.
|
Nurul Amin @ Bada Vs. The State |
1 MLR (AD) 251 |
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.
|
Badiur Rahman Chowdhwy Vs, Nazrul Islam and another |
1 MLR (AD) 444 |
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.
|
Khairunnessa Vs. Illy Begum and another |
1 MLR (AD) 148 |
Section 375
|
Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
Section 6(2) r/w
Penal Code, 1860
Section 375
Capital punishment–– Under section 6(2) of the Nari-o-Shishu Nirjatan
(Bishesh Bidhan) Ain, 1995 is capital punishment only. But in a recent
judgment, this Division held that in appropriate cases, the sentence of
death may be commuted to punishment for life. But on the facts and
circumstances of the case, the condemned-appellant does not deserve any
sympathy whatsoever. In this connection reliance may be made on the case of
Laxman Naik vs State of Orissa (1994) 3 SCC 381 wherein the Supreme Court
of India confirmed the death sentence of a perpetrator for the offence of
rape followed by murder of a 7 year old girl by her own uncle. The Court
opined that the accused seems to have acted in a beastly manner. After
satisfying his lust, he thought that the victim might expose him for the
commission of offence on her to her family members and others, therefore,
the accused with a view to screening the evidence of the crime, put an end
to the life of that innocent girl. The Court noticed how diabolically the
accused had conceived his plan and brutally executed it in such a
calculated cold blooded and brutal murder of a very tender age girl after
committing rape on her which, according to the Court, undoubtedly falls in
the rarest of rare case attracting none other than capital punishment.
––The sentence of death imposed upon the condemned-appellant Md Sukur
Ali passed by the Tribunal and confirmed by the High Court Division is
maintained. .....Sukur Ali (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD)
289]
....View Full Judgment
|
Sukur Ali (Md) =VS= State |
14 LM (AD) 289 |
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
|
The State -Vs.-Md. Shamsur Rahman Sikder @ Kalu & others |
4 ALR (AD) 42 |
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
|
Md. Saidur Rahman Neoton and Ors.Vs. The State |
1 BLT (AD) 20 |
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
|
Mizanur Rahman Vs. The State |
11 BLT (AD) 26 |
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
|
Bazlu Talukder Vs The State |
20 BLD (AD) 227 |
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.
|
Bazlu Talukder vs State |
5 BLC (AD) 159 |
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.
|
Shorbesh Ali & another Vs. Mrs. Jarina Begum & another |
2 MLR (AD) 127 |
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.
|
Abdur Rahman and others Vs. the State |
4 MLR (AD) 25 |
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.
|
Kawsarul Alan Vs. State |
42 DLR (AD) 23 |
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.
|
Abdul Mannan Vs. State |
44 DLR (AD) 60 |
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
|
Bangladesh vs. Sheikh Hasina and another |
5 ADC 541 |
Sections 385/386/323
|
Limitation Act, 1908
Article 5
Penal Code, 1860
Sections 385/386/323
Delay condoned–– From the materials on record it is clear that he was
abroad from 2000 for which he could not appear before the Court. It also
appears that after his return in 2015 when he came to know about the
conviction and sentence he surrendered before the court on the earliest
opportunity. This aspect should have been considered by the High Court
Division in exercising its discretionary power of condonation of delay as
refusal to condone the delay under such circumstances would prevent
substantial justice. ––The delay of 4,543 days in filing of the
criminal appeal before the High Court Division is condoned upon setting
aside the impugned judgment and order and the High Court Division is
directed to register the criminal appeal and dispose of the same on merit
in accordance with law. .....Tipu =VS= State, (Criminal), 2023(1) [14 LM
(AD) 308]
....View Full Judgment
|
Tipu =VS= State |
14 LM (AD) 308 |
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
|
Jahirul Haque and another -Vs.- The State |
9 ALR (AD) 21 |
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.
|
Rana (Md.) Vs. The State, represented by the Deputy Commissioner, Joypurhat |
15 MLR (AD) 173 |
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
|
Trading Corporatin of Bangladesh vs Kazi Abdul Hye |
2 ADC 206 |
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.
|
Mirza Abdul Hakim and others vs State |
5 BLC (AD) 21 |
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.
|
Abdul Hakim (Mirza) and others VS. The State |
5 MLR (AD) 27 |
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.
|
State Vs. Mofizuddin and others |
11 MLR (AD) 76 |
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
|
Saiful Islam alias Mamun =VS= The State |
8 LM (AD) 623 |
Section 396
|
The Evidence Act, 1872
Sections 3 and 30
The Penal Code, 1860
Section 396
Absconding by itself is not conclusive either of guilty or of guilty
conscience– The courts below relied upon the fact that the appellant
absconded from the area. But mere absconding is not such vital circumstance
which can be considered to show that the absconder was having any guilty
mind. Even innocent persons may abscond in fear of the police or on account
of avoiding the humiliation of being involved falsely in the incident. The
act of absconding is no doubt relevant piece of evidence to be considered
along with other evidence but its value would always depend on the
circumstance of each case. Absconding by itself is not conclusive either of
guilty or of guilty conscience. In a case which depends wholly upon
circumstances, the same must be of such a nature as to capable of excluding
all hypothesis of guilt of the accused. In the case in hand, the PWs 2 and
3 did not say anything connecting the appellant with occurrence. Except his
abscondence Appellate Division does not find anything connecting the
appellant with the offence charged but abscondence is not conclusive proof
of guilt. In consequence of examination of the evidence adduced by the
prosecution, this Division is of the view that despite the confessional
statement of co-accused and abscondence of the accused appellant after the
occurrence it would be unsafe to convict the appellant. Accordingly the
appeal is allowed. .....Sumon =VS= State, (Criminal), 2022(2) [13 LM (AD)
342]
....View Full Judgment
|
Sumon =VS= State |
13 LM (AD) 342 |
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.
|
Abdul Hashem @ Bachchu Falar (Md) & others Vs. The State |
5 MLR (AD) 87 |
Section 401, 431/467
|
Criminal Law (Amendment) Act, 1958
Section 6(5)
Penal Code, 1860
Section 401, 431/467
Prevention of Corruption Act, II of 1947
Section 5(2)
The trial has been held without sanction from the proper authority and as
such the trial held by the Special Judge is without jurisdiction––
“From the lower court record it does not appear that the learned Special
Judge took notice of such a patent fact and that any sanction letter was
ever produced before the learned Judge and that he ever wrote under section
6(5) of the Criminal Law (Amendment) Act to the proper authority for the
sanction. It is now well settled that sanction confers jurisdiction upon
the Special Judge for taking cognizance of an offence against a government
servant. Mere statement in the charge-sheet that some sort of sanction was
received without producing the sanction order before the court and putting
in the same to the evidence in order to show that the sanction order was
valid and proper is not enough. In my view the trial has been held without
sanction from the proper authority and as such the trial held by the
Special Judge is without jurisdiction and the impugned order of conviction
and sentence is illegal.” Appellate Division finds no reason to interfere
with the judgment and order passed by the High Court Division and
accordingly the appeal is dismissed. .....The State =VS= Md. Moslemuddin,
(Criminal), 2023(1) [14 LM (AD) 257]
....View Full Judgment
|
The State =VS= Md. Moslemuddin |
14 LM (AD) 257 |
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
|
Abdul Quddus vs Latif Baxvany Jute Mills Ltd. |
2 ADC 938 |
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
|
Latif Bawany Jute Mills Ltd. |
2 ADC 938 |
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), 1 SCOB[2015] AD 35
....View Full Judgment
|
Sree Gopal Chandra Barman Vs. Md. Nasirul Hoque |
1 SCOB[2015] AD 35 |
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.
|
Mohammad Musa Vs. Kabir Ahmed |
41 DLR (AD) 151 |
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.
|
Syed Ali Mir. Vs. Syed Omar Ali |
42 DLR (AD) 240 |
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.
|
Islam Ali Mia Vs. Amal Chandra Mondol |
45 DLR (AD) 27 |
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
|
Rafique (Md) vs Syed Morshed Hossain and another |
50 DLR (AD) 163 |
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
|
Md. Kalimullah Topadar Vs. The State & Anr |
11 BLT (AD) 128 |
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
|
Md. Islam Ali Mia alias Md.Islam Vs. Ama! Chandra Mondal and another |
13 BLD (AD) 28 |
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
|
Md. Abdul Awal =VS= Md. Abdul Barek & another |
1 LM (AD) 492 |
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
|
Sree Gopal Chandra Barman =VS= Md. Nasirul Hoque |
1 LM (AD) 495 |
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.
|
Nazrul Islam Mollick vs Khowaj Ali Biswas and another |
4 BLC (AD) 239 |
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.
|
Habibur Rahman (Md) and another vs State, through the Deputy Commissione, Narayanganj and another |
1 BLC (AD) 146 |
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.
|
Mosammat Noor Jahan Begum @ Anchuri & another Vs. The State |
2 MLR (AD) 34 |
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.
|
Md. Reazuddin Ahmed Vs. The Stale and another |
2 MLR (AD) 37 |
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) ADC 9
|
Abdul Jalil Sarder vs The Stat |
ADC 9 |
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
|
Janata Bank, ors. vs Mr. Khalilur Rahman |
3 ADC 81 |
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) 2 ADC 12
|
Pubali Bank Ltd. vs Chairman, First Labour Court |
2 ADC 12 |
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.
|
Moslemuddin Talukder Vs State |
42 DLR (AD) 103 |
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.
|
Md. Serajul Hoque Vs. State |
42 DLR (AD) 52 |
Sections 409/109
|
The Criminal Law Amendment Act, 1958
Section 10(3) r/w
The Prevention of Corruption Act II 1947
Section 5(2) of Act II 1947 r/w
The Penal Code
Sections 409/109
Transfer the Case under Sec. 5(2) of the Act II 1947 read with Sec. 409/109
of the Penal Code– The petitioner is entitled to get an order of transfer
if she shows circumstances from which it can be inferred that there is
apprehension that she would not get justice from the Judge concerned and
that the same is reasonable in the circumstances alleged but a mere
allegation of apprehension is not enough; the Court will consider whether
the apprehension is reasonable, genuine and justifiable.
Taking into consideration the entire facts and circumstances of the case
and the materials on record, we are of the view that the petitioner has
failed to make out a case that she has reasonable apprehension of not
availing justice from the presiding Judge of the Special Court No. 5,
Dhaka. The petition is dismissed. ...Begum Khaleda Zia =VS= State, [6 LM
(AD) 91]
....View Full Judgment
|
Begum Khaleda Zia =VS= State |
6 LM (AD) 91 |
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
|
Sheikh Abdur Rouf Vs. The State |
7 BLT (AD) 249 |
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
|
Md. Fazar Ali Vs. The State |
12 BLT (AD) 167 |
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
|
Md. Mazibur Rahman Vs. The State |
8 BLT (AD) 190 |
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
|
Bibhuti Bushan Talukder Vs The State |
17 BLD (AD) 168 |
Sections 409/420/109
|
Penal Code
Sections 409/420/109
Money Laundering Protirodh Ain, 2012
Sections 4(2) and 4 (3)
Prevention of Corruption Act, 1947
Section 5(2)
It is now well settled that a criminal case having criminal liability
cannot be avoided due to departmental proceeding against the accused.
...Sultana Fahmida Vs. The State & anr, (Criminal), 18 SCOB [2023] HCD 54
....View Full Judgment
|
Sultana Fahmida Vs. The State & anr |
18 SCOB [2023] HCD 54 |
Sections 409/420/109
|
CrPC
Section 439
Penal Code
Sections 409/420/109
Money Laundering Protirodh Ain, 2012
Sections 4(2) and 4 (3)
Prevention of Corruption Act, 1947
Section 5(2)
Exercise of revisional jurisdiction of High Court Division to ensure
justice under Section 439 of CrPC:
On an application by a party or which otherwise comes to its knowledge,
High Court Division is legally competent to exercise its revisional
jurisdiction under Section 439 of the Code of Criminal Procedure to examine
the facts and circumstances of the case and the judgment and the order if
there is any error which may not ensure justice to the litigant public in
not following the correct principles of law and fact in assessing the
material and evidence in proper perspective and in that case, High Court
Division may, in its discretion, exercise any of the powers conferred on a
court of appeal by Sections 423, 426, 427 and 428 or on a court by Section
338. ...Sultana Fahmida Vs. The State & anr, (Criminal), 18 SCOB [2023] HCD
54
....View Full Judgment
|
Sultana Fahmida Vs. The State & anr |
18 SCOB [2023] HCD 54 |
Sections 409/420/109
|
Penal Code
Sections 409/420/109
Money Laundering Protirodh Ain, 2012
Sections 4(2) and 4 (3)
Prevention of Corruption Act, 1947
Section 5(2)
Failure of Prosecution to implicate responsible Persons within the Chain of
Occurrence:
Under the circumstances, it is worthwhile to mention that the prosecution
case cannot continue on a defective foundation of a case since the
necessary and responsible persons who are involved in the alleged offences
within the chain of occurrence are not implicated in this case making them
accused. ...Sultana Fahmida Vs. The State & anr, (Criminal), 18 SCOB [2023]
HCD 54
....View Full Judgment
|
Sultana Fahmida Vs. The State & anr |
18 SCOB [2023] HCD 54 |
Section 409
|
The Penal Code, 1860
Section 409 read with
The prevention of Corruption Act, 1947
Section 5 (2)
The provisions of Section 222(2) read with Section 234 (1) require that if
there are more than one offences committed over a period of more than 12
months then the offences may not be charged in one charge, whereas Section
6 (1B) provides that any number of offences punishable under the Criminal
Law Amendment Act irrespective of the period over which the offence was
committed, may be tried at one trial. Clearly, therefore, the provision in
the Criminal Law Amendment Act is not consistent with the provision of the
Code of Criminal Procedure.
Since Section 409 of the Penal Code read with Section 5(2) of Prevention of
Corruption Act come within the schedule of Criminal Law Amendment Act, the
offences are liable to be tried as per the provisions of the Criminal Law
Amendment Act, which being special law will prevail over the general law,
i.e. the Code of Criminal Procedure. ...The State =VS= Ibrahim Ali(Md.),
(Criminal), 2021(1) [10 LM (AD) 385]
....View Full Judgment
|
The State =VS= Ibrahim Ali(Md.) |
10 LM (AD) 385 |
Section 409
|
The Penal Code, 1860
Section 409 r/w
The prevention of Corruption Act, 1947
Section 5 (2)
The accused has paid back all the money which he is alleged to have
defalcated. That again cannot be a ground for acquittal, if it is found
from evidence that he in fact committed the offence. Upon conviction, it is
the discretion of the Court to award punishment in accordance with law and
taking into consideration all the facts and circumstances of the case,
including any mitigating circumstances. To that extent the period of
sentence may be more or less depending on the facts of the case and the
circumstances of the accused. ...The State =VS= Ibrahim Ali(Md.),
(Criminal), 2021(1) [10 LM (AD) 385]
....View Full Judgment
|
The State =VS= Ibrahim Ali(Md.) |
10 LM (AD) 385 |
Sections 409/408/467/468/471/109/420
|
The Penal Code, 1860
Sections 409/408/467/468/471/109/420 r/w
The Prevention of Corruption Act, 1947
Section 5(2) ,
The Money Laundering Protirodh Ain, 2002
Section 13,
The Money Laundering Protirodh Ain, 2009
Section 4(2) and
The Money Laundering Protirodh Ain, 2012
Section 4(2)(3)
We are of the view that it cannot be said that there exists no prima facie
case against the respondent No.1. Without exhausting the trial stage, no
decision can be taken regarding the allegations brought against him in the
charge sheet under Sections 409/408/467/468/ 471/109/420 of the Penal Code
read with Section 5(2) of the Prevention of Corruption Act, 1947, Section
13 of the Money Laundering Protirodh Ain, 2002, Section 4(2) of the Money
Laundering Protirodh Ain, 2009 and Section 4(2)(3) of the Money Laundering
Protirodh Ain, 2012. The petition is disposed of. The judgment of the High
Court Division is set aside. The order of the Mahanagar Senior Special
Judge so far as it relates to the present respondent No.1 is also set
aside. ...Durnity Daman Commission =VS= Ezbahul Bar Chowdhury, (Criminal),
2021(1) [10 LM (AD) 500]
....View Full Judgment
|
Durnity Daman Commission =VS= Ezbahul Bar Chowdhury |
10 LM (AD) 500 |
Sections 409/420467/468/471
|
The Penal Code, 1860
Sections 409/420467/468/471 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
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
|
Bashir Ahmed =VS= DC, Magura |
3 LM (AD) 541 |
Sections 409/109
|
The Penal Code, 1860
Sections 409/109 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
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
|
Begum Khaleda Zia =VS= The State |
4 LM (AD) 353 |
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.
|
Sekander Ali Howlader and others vs State |
4 BLC (AD) 116 |
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.
|
GM Nawsher Ali vs State |
2 BLC (AD) 183 |
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.
|
Jalaluddin Ahmed alias Jalaluddin Ahmed vs State |
3 BLC (AD) 216 |
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
|
Sadat Ali Talukder (Md) @ Md Sadat Ali vs State & another |
4 BLC (AD) 228 |
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.
|
Nizamuddin Bhuiyan vs State and another |
1 BLC (AD) 222 |
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.
|
Nizamuddin Bhuiya Vs. The State |
1 MLR (AD) 246 |
Sections 415 and 417
|
Penal Code, 1860
Sections 415 and 417 r/w
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
|
Md. Motaleb Hossain: -Vs.- Abdul Haque Limon and another |
11 ALR (AD) 105 |
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.
|
Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another |
46 DLR (AD) 180 |
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
|
Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another |
14 BLD (AD) 78 |
Section 420
|
Penal Code, 1860
Section 420 r/w
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
|
Md. Motaleb Hossain: -Vs.- Abdul Haque Limon and another |
11 ALR (AD) 105 |
Sections 420/409/109
|
The Penal Code, 1860
Sections 420/409/109 r/w
Prevention of Corruption Act, 1947
Section 5(2) r/w
Evidence Act, 1872
Section 115
The amount misappropriated may be small or large; it is the act of
misappropriation sentence is reduce to the period already undergone– The
amount misappropriated may be small or large; it is the act of
misappropriation that is relevant. The High Court brought a new
jurisprudence in the criminal justice system that since the respondent
deposited the entire amount, the case was barred by the principles of
estoppel.
However, since the instant case has been initiated in 1999 and the High
Court Division acquitted the respondent of the charge, Appellate Division
is of the view that it would not be proper to send the respondent No.1 in
jail after 22 years of the initiation of the instant proceeding,
particularly, when the bank had adjusted the entire amount withdrawn.
Considering the facts and circumstances, the judgment and order of the High
Court Division is set-aside. The judgment and order of conviction of the
respondent ordered by the trial Court is upheld. However, his sentence is
reduced to the period already undergone. The respondent No.1 is directed to
pay a fine of Taka 5,000, in default, he will suffer sentence of rigorous
imprisonment for a period of 15 days. .....Anti-Corruption Commission =VS=
Omar Faruk, (Criminal), 2022(1) [12 LM (AD) 517]
....View Full Judgment
|
Anti-Corruption Commission =VS= Omar Faruk |
12 LM (AD) 517 |
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.
|
State vs Md Iqbal Hossain and others |
48 DLR (AD) 100 |
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
|
Mst. Nurjahan Bibi & Ors. Vs. The State |
2 BLT (AD) 139 |
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
|
Md. Mohasin Ali @ Mohsin Vs. The State |
8 BLT (AD) 210 |
Sections 420/406/468
|
The Code of Criminal Procedure, 1898
Section 561A r/w
Penal Code [XLV of 1860]
Sections 420/406/468
A criminal proceeding could only be quashed if it was found that the
allegations made in the petition of complaint, even if, taken to be true in
its entirety did not disclose any prima facie offence against the
accused– The Appellate Division observed that High Court Division came to
finding that no charge was framed in this case as yet and that there was
scope for the petitioners to agitate the grievances at the time of framing
of charge under section 241A of the Code of Criminal Procedure and that if
the contentions of the petitioners were found to be correct they might get
relief. The High Court Division noted that a criminal proceeding could only
be quashed if it was found that the allegations made in the petition of
complaint, even if, taken to be true in its entirety did not disclose any
prima facie offence against the accused. The High Court Division came to a
finding that in the instant case, the aforesaid requirements are absent
inasmuch as from a bare reading of the petition of complaint (Annexure-A)
it appeared that the allegations made therein clearly constituted prima
facie offence under sections 420/406/468 and 109 of the Penal Code.
.....Md. Rafiqul Islam & others =VS= Md. Fakruddin & others, [1 LM (AD)
503]
....View Full Judgment
|
Md. Rafiqul Islam & others =VS= Md. Fakruddin & others |
1 LM (AD) 503 |
Sections 420
|
The Penal Code, 1860
Sections 420
The Prevention of Corruption Act, 1947
Section 5(2)
Bail–– High Court Division didn’t exercise its discretion
judiciously, rather perversely in releasing the convict on bail–– This
Division’s standard practice is that it won’t interfere with the
discretion exercised by the High Court Division. When discretion is
exercised judiciously, not perversely, the same generally is not interfered
with by the Apex Court, which is reluctant in interfering with the
discretionary power of the High Court Division.–– 46 DLR (AD) 143 where
it has been held that: "...Since the matter before us relates to bail only,
we need not consider the merit of the appeal. In appeals involving short
term of imprisonment the appellate Court should either dispose of the
appeals or consider the release of the accused on bail. We do not think
that in the instant case it was necessary for the learned Single Judge to
write a long judgment for the purpose of disposal of the bail petition. The
learned Single Judge should better dispose of the appeal very expeditiously
failing which he may consider the question of bail if raised
again...."–– In present case, our considered view as eloquent above is
that the High Court Division didn’t exercise its discretion judiciously,
rather perversely in releasing the respondent-convict on bail; hence,
interference is called for. .....Durnity Daman Commission =VS= Md. Kutub
Uddin Ahmmed, (Criminal), 2022(2) [13 LM (AD) 441]
....View Full Judgment
|
Durnity Daman Commission =VS= Md. Kutub Uddin Ahmmed |
13 LM (AD) 441 |
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.
|
Mohasin Ali (Md) @ Mohsin vs State |
5 BLC (AD) 167 |
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.
|
Dewan Obaidur Rahman vs State and another |
4 BLC (AD) 167 |
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.
Abul Kalam and others Vs. Abu Daud Gazi and another— 4, MLR (1999) (AD)
414.
|
Abul Kalam and others Vs. Abu Daud Gazi and another |
4 MLR (AD) 414 |
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.
|
SM Khalilur Rahman Vs. State |
42 DLR (AD) 62 |
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
|
Mohammad Ali & Ors. Vs. A. F. M. Mazedul Huq khan Lohani & Anr. |
8 BLT (AD) 96 |
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
|
Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another |
19 BLD (AD) 260 |
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.
|
Mohammad Ali vs Abdul Fazul Mia Md Mazedul Huq and another |
4 BLC (AD) 259 |
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
|
Alauddin & Ors Vs. Md. Shah Alam Khan & Anr |
7 BLT (AD) 356 |
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.
|
Mohammad AH Member Vs. Abul Fazal Mia Md. Mazedul Huq and another |
4 MLR (AD) 373 |
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.
|
Amjad Molla vs Syeduzzaman Molla and others |
46 DLR (AD) 17 |
Sections 463, 471, 475 and 476
|
Penal Code [XLV of 1860]
Sections 463, 471, 475 and 476
Code of Criminal Procedure [V of 1898]
Section 195(1)(c)
A Court cannot take cognizance of an offence under sections 463, 471, 475
or 476 of the Penal Code, unless the following three conditions are
fulfilled, namely:-
(a) the alleged offence under the said sections of the Penal Code was
committed by “a party to any proceeding in any court” and
(b) a document was “produced or given in evidence in such proceeding”
i.e. in a pending case or in an earlier case by that person, and
(c) the court can take cognizance of the said offence only when the
complaint is made by the court in whose proceeding the document was
produced or given in evidence or upon a complaint of a superior court.
Aleya Begum -Vs.- The State represented by the Deputy Commissioner,
Bagerhat & ors (Criminal) 2019 ALR (HCD) Online 26
....View Full Judgment
|
Aleya Begum -Vs.- The State represented by the Deputy Commissioner, Bagerhat & ors |
2019 ALR (HCD) Online 26 |
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.
|
Raisuddin Mondal (Md) and another Vs. The state |
3 MLR (AD) 30 |
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.
|
Azizul Haque (Md) Vs. The State |
4 MLR (AD) 215 |
Sections 467/468/469/471/472/420 and 34
|
Code of Criminal Procedure, 1898
Section 561A
Penal Code, 1860
Sections 467/468/469/471/472/420 and 34
Power under section 561A of the Code of Criminal Procedure by itself, makes
it obligatory for the High Court Division to exercise the same with outmost
care and caution– The High Court Division will not quash the proceeding
if it is required to call upon appreciation of evidence. It cannot assume
role of appellate Court while dealing with an application under section
561A of the Code of Criminal Procedure. In the instant case, since the
petition of complaint discloses prima facie case against the accused
respondents punishable under the aforesaid provisions of law, Appellate
Division is of the view that the High Court Division has committed an error
of law in setting aside the cognizance taking order of the Magistrate. It
failed to exercise its power under section 561A of the Code of Criminal
Procedure having regard to the facts and circumstances of the case.
Considering the contents of the petition of complaint, cognizance taking
order of the Magistrate and other materials on record, this Division finds
substance in this petition. The impugned judgment and order of the High
Court Division dated 15.01.2019 passed in Criminal Miscellaneous Case
No.52894 of 2017 is hereby set aside. The trial Court is directed to
proceed with the case in accordance with law. ...Sourthern University
Bangladesh =VS= Md. Osman, (Criminal), 2021(2) [11 LM (AD) 147]
....View Full Judgment
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Sourthern University Bangladesh =VS= Md. Osman |
11 LM (AD) 147 |
Section 467
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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.
|
Al-haj Md. Serajuddowlah Vs. State |
43 DLR (AD) 198 |
Section 467
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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
|
Showkat Hossain Akanda Chowdhury vs State |
50 DLR (AD) 128 |
Section 467
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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
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Shawkat Hossain Akanda Chowdhury Vs. The State |
6 BLT (AD) 49 |
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
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Mohir Molla & Ors. Vs. The State |
7 BLT (AD) 149 |
Sections 467, 468, 471
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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
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Md. Kahar Ali Mondal and Other vs The State |
1 BLT (AD) 44 |
Section 467 and 471
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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.
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Abdul Hye (Moalana) Vs. The State |
3 MLR (AD) 262 |
Section 467 / 471 / 109
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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.
|
Zaidul Hque Vs. The State |
3 MLR (AD) 260 |
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.
|
Ibrahim Bepari and another Vs. The State & another |
5 MLR (AD) 204 |
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
|
Hazi Ibrahim Ali & Ors. Vs. The State |
11 BLT (AD) 39 |
Sections 468/471/409/120
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The Penal Code, 1860
Sections 468/471/409/120
The Prevention of Corruption Act
Section 5
Code of Criminal Procedure, 1898
Section 561A
The petitioner did not misappropriate even a single piece of those CI
sheets, so, filing of the instant case was malafide, preposturous and had
been brought only to harass the appellant which is liable to be
quashed–– From the contents of the FIR and statements quoted above it
appears that 36 pieces of CI sheets were recovered from the Madrasha. Out
those CI sheets, 19 pieces were recovered removing those from the
constructed roof of the tin shed of Madrasha and rests were seized from
inside the Madrasha. Earlier those were sanctioned for Madrasha on the
basis of the application made by the authority of the Madrasha. That is, no
CI sheet was recovered from the custody and control of the appellant. Only
allegation is that the appellant, keeping those CI sheets in his custody
for few days, delivered those sheets to the Madrasha authority. ––That
is, admittedly, he did not misappropriate those CI sheets and those were
not recovered from his custody and control. That was a trivial matter that
has been given undue importance. Moreover, in the meantime 14 years has
elapsed. After 14 years, it will not be appreciatable for a ordinary
prudent and senseable man to allow the instant case to proceed with. Taking
into consideration the facts and circumstances of the case, the FIR and
other prosecution papers taken in pursuance thereof, would be an abuse of
the process of Court. Thus, the appeal is allowed. The instant GR Case is
dropped. .....Abu Taher (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD)
297]
....View Full Judgment
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Abu Taher (Md) =VS= State |
14 LM (AD) 297 |
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
|
Md. Zahangir Alam Shaheen -Vs.- Advocate Md. Abu Tayab and another |
13 ALR (AD) 179 |
Section 471
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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
|
Ms. Ok Kyung Oh-Vs.-Mr. Bo-Sun Park and another |
6 ALR (AD) 142 |
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
|
Abul Hossain Mollah alias Abu Mollah vs State |
50 DLR (AD) 96 |
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
|
Azizul Hoque (Md) vs State |
51 DLR (AD) 216 |
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
|
Md. Azizul Haque Vs. The State |
7 BLT (AD) 121 |
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
|
Abul Hossain Mollah alias Abu Mollah Vs The State |
17 BLD (AD) 170 |
Sections 471/475/476
|
The Code of Criminal Procedure, 1898
Section 195 (1)(c) r/w
The Penal Code, 1860
Sections 471/475/476
Share certificate are forged and has no value in the light of the expert
report–
In the light of the expert report with regard to the thumb impression
appearing on the document of transfer of shares and considering the fact
that the document prima facie appears to have been forged, we hereby direct
Mohammad Mehdi Hasan, Deputy Registrar, Supreme Court of Bangladesh to
lodge a complaint, before a Magistrate of the first class having
jurisdiction, against the appellants, namely Reza Bin Rahman and Abdul
Wahab Azad in terms of section 195 (1)(c) of the Code of Criminal Procedure
for committing an offence punishable under sections 471/475/476 of the
Penal Code. …Reza Bin Rahman =VS= A.T.G. Mortaza, [7 LM (AD) 8]
....View Full Judgment
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Reza Bin Rahman =VS= A.T.G. Mortaza |
7 LM (AD) 8 |
Section 471 and 465
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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.
|
Abul Hossain Mollah alias Abu Mollah Vs. The Slate |
2 MLR (AD), 332 |
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.
|
Hazi Oziullah and another Vs. State |
1 MLR (AD) 139 |
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.
|
Abu Md. Sayem @ Taslim Vs. The State |
4 MLR (AD) 191 |
The power of commutation...
|
The power of commutation and remission is within the domain of the
executive Government, but the Courts have the jurisdiction to determine the
entitlement:
The power of commutation and remission as contained in the Penal Code, Code
of Criminal Procedure and the Jail Code are within the domain of the
executive Government and such privilege may be extended by the Government
to the convicts undergoing imprisonment for life. But the Courts have the
jurisdiction in certain circumstances to pass an order directing that the
accused shall not be entitled to the benefit of Penal Code, the Code of
Criminal Procedure and the Jail Code in respect of commutation, deduction
and remission. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ)
…Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
....View Full Judgment
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Ataur Mridha alias Ataur Vs. The State |
15 SCOB [2021] AD 1 |
Section 500
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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.
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A. K. M. Jahangir Vs. Haji Munshi Meah |
5 BLT (AD) 184 |