Absence of motive demands deeper forensic search of the evidence:
It is true that proof of motive is not necessary to sustain a conviction but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same has to be considered in order to judge the probabilities. Proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime. In its absence, it demands deeper forensic search of the evidence. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
Competency of a child witness to testify:
A child may be allowed to testify, if the court is satisfied that the child is capable of understanding the question put to him and give rational answers to the Court. Before examining a child as a witness the Court should know his intellectual capacity by putting a few simple and ordinary question to him and should also record a brief proceeding of the inquiry. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
The evidentiary value of extra-judicial confession depends upon the veracity of the witnesses to whom it is made and the circumstances in which it is made:
It is the duty of the Court to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. The evidentiary value of such statement depends upon the veracity of the witnesses to whom it is made and the circumstances in which it came to be made and actual word used by the accused. Such statement must pass the test of reproduction of exact words, the reason or motive of making such statement. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
When accused is entitled to benefit of doubt:
Court’s decision must rest not upon suspicion but upon legal grounds establish by legal testimony. Mere suspicion, however, strong, cannot take the place of proof. It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76 ....View Full Judgment

Abscondence when material:
From the materials on record we find that soon after the occurrence convict Kalam had fled away and remained absconding during the trial and trial was held in his absentia. Such abscondence of the accused is an incriminating circumstances connecting him in the offence and conduct of a person in aboscondence after commission of crime is an evidence to show that he is concerned in the offence. …State Vs Kalam alias Abul Kalam, (Criminal), 6 SCOB [2016] HCD 43 ....View Full Judgment

Admisibility of Photostat Copies of originals in evidence:
It will be pertinent to mention here that in the instant case most of the documentants exhibited by the prosecution are the Photostat Copies of originals including exhibit 9 and 9(Ka), the confessional statements of accused Ripon and Bipul. The defence did not rasied any objection as to the genuineness of those documents and without any objection those were marked as exhibits. However, the concerned persons of those documents proved the genuineness of the same. As such, those documents are admissible in evidence. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52 ....View Full Judgment

Admittedly there is no eye witnesses of the occurrence and the appellant is a nephew of the deceased having some enmity with him. Although it has been alleged that before death Shafiqul narrated the incident to some of the witnesses but that cannot be treated as dying declaration as it was not properly recorded. The witnesses to whom it has been alleged that the deceased mentioned the name of the appellant are all closely related to the deceased. In the present case we do not find any dying declaration of the deceased and it is evident from record that the deceased told about the occurrence by the appellant committed on him in the operation theater, which is not free from all doubt. Most of the witnesses deposed that they have heard from P.W.5 Md. Jabed but P.W.5 is not an eye witness and in his deposition he did not make any such statement as to connect the appellant directly. …Md. Joynal Vs. State, (Criminal), 11 SCOB [2019] HCD 4 ....View Full Judgment

Acquittal:–– Discharge cannot be taken as acquittal–– The misappropriation is only Tk. 1,60,200/- committed about 34 years ago it will be difficult on the part of prosecution to prove the charge after splitting into ten cases. Therefore, we have taken a lenient view on the question of retrial of the petitioner on consideration of the fact that the petitioner has suffered in jail custody for sometime and he is not in service. Accordingly, we set aside the conviction of the petitioner and instead of remanding the matter, we discharge him of the case. This order of discharge cannot be taken as acquittal and the petitioner cannot claim reinstatement in his service on consideration of his conduct. .....Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541] ....View Full Judgment

Active service– Active service”, as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country; (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda(Artillery) =VS= The State(Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

Aggravating and Mitigating Circumstances– The 1991 Act placed these pre-existing practices on statutory foundation. English judiciary has treated (a) offences by groups or gang, (b) offences against young, elderly or otherwise vulnerable victims, (c) offences involving the abuse of trust or authority, (d) offences involving planning or organisation, (e) offences involving political murder or attempted murder or terrorism oriented offences (Al-Banna, re-Hindwai, supra), as aggravating offences.
Greater culpability is the answer where the offender commits an offence against a vulnerable victim such as an old, very young, disabled etc (re: Allen and Bennet 1988 10 Cr. App. R. (S) 466).
The Floud Committee included grave harm to justify additional imprisonment in such offences which lead to death, serious bodily injury, serious sexual assault, severe or prolonged pain or mental distress, (Floud and Young 1981 P 118-119). In re-Fowcet (1995 16 Cr. App. R (S) 55) the Court of Appeal observed that some factors, such as irrationality of the behaviour, the selection of vulnerable persons or a particular class of person or target, unusual obsession or delusions, will naturally assume prominence.
In 1993 Practice Direction, the Lord Chief Justice stated that Judges should specify the period to be served in all but very exceptional cases which are so serious that the Judge believes that the offender should be detained for his natural life (1993 96 Cr. App. R 397).
In the UK notion of general deterrence, which is different from individual deterrence, is often invoked to justify severe sentence for crimes of high seriousness. (Paras: 869-873); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Alibi–– Mr. Shajahan’s emphasis on this aspect of defence case was quite fervent. The reason for Mr. Shajahan’s tooth and nail effort is understandable. If it stood proved that the appellant remained away from Pirojpur until July 71, as the alibi witnesses claimed, he can not be guilty of any of the charges, as all the alleged offences took place in May ’71. Although the standard of proof for the prosecution is “beyond reasonable doubt”, pleas, taken by the defence, including the plea of alibi, is generally to be proved with civil standard i.e. with preponderance of probability. To substantiate his claimed absence from Pirojpur and transient stay in Jessore upto mid July ‘71, the appellant (as accused) examined some five witnesses namely D.Ws. 4, 6, 8, 12 and 14. He also relied on some documents in this regard. (Paras-800 & 801); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Alibi–– Mr. Shajahan’s emphasis on this aspect of defence case was quite fervent. The reason for Mr. Shajahan’s tooth and nail effort is understandable. If it stood proved that the appellant remained away from Pirojpur until July 71, as the alibi witnesses claimed, he can not be guilty of any of the charges, as all the alleged offences took place in May ’71.
Although the standard of proof for the prosecution is “beyond reasonable doubt”, pleas, taken by the defence, including the plea of alibi, is generally to be proved with civil standard i.e. with preponderance of probability. To substantiate his claimed absence from Pirojpur and transient stay in Jessore upto mid July ‘71, the appellant (as accused) examined some five witnesses namely D.Ws. 4, 6, 8, 12 and 14. He also relied on some documents in this regard. (Paras-800 & 801); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

The Appellate Court’s jurisdiction is co-extensive with that of the trial court:
The Appellate Court’s jurisdiction is co-extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 ....View Full Judgment

Acquittal:–– Discharge cannot be taken as acquittal–– The misappropriation is only Tk. 1,60,200/- committed about 34 years ago it will be difficult on the part of prosecution to prove the charge after splitting into ten cases. Therefore, we have taken a lenient view on the question of retrial of the petitioner on consideration of the fact that the petitioner has suffered in jail custody for sometime and he is not in service. Accordingly, we set aside the conviction of the petitioner and instead of remanding the matter, we discharge him of the case. This order of discharge cannot be taken as acquittal and the petitioner cannot claim reinstatement in his service on consideration of his conduct. .....Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541]

Active service– Active service”, as applied to a person subject to this Act, means the time during which such person is attached to, or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country; (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda(Artillery) =VS= The State(Banga Bandhu Murder Case), [9 LM (AD) 386]

Aggravating and Mitigating Circumstances– The 1991 Act placed these pre-existing practices on statutory foundation. English judiciary has treated (a) offences by groups or gang, (b) offences against young, elderly or otherwise vulnerable victims, (c) offences involving the abuse of trust or authority, (d) offences involving planning or organisation, (e) offences involving political murder or attempted murder or terrorism oriented offences (Al-Banna, re-Hindwai, supra), as aggravating offences. Greater culpability is the answer where the offender commits an offence against a vulnerable victim such as an old, very young, disabled etc (re: Allen and Bennet 1988 10 Cr. App. R. (S) 466). The Floud Committee included grave harm to justify additional imprisonment in such offences which lead to death, serious bodily injury, serious sexual assault, severe or prolonged pain or mental distress, (Floud and Young 1981 P 118-119). In re-Fowcet (1995 16 Cr. App. R (S) 55) the Court of Appeal observed that some factors, such as irrationality of the behaviour, the selection of vulnerable persons or a particular class of person or target, unusual obsession or delusions, will naturally assume prominence. In 1993 Practice Direction, the Lord Chief Justice stated that Judges should specify the period to be served in all but very exceptional cases which are so serious that the Judge believes that the offender should be detained for his natural life (1993 96 Cr. App. R 397). In the UK notion of general deterrence, which is different from individual deterrence, is often invoked to justify severe sentence for crimes of high seriousness. (Paras: 869-873); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Alibi–– Mr. Shajahan’s emphasis on this aspect of defence case was quite fervent. The reason for Mr. Shajahan’s tooth and nail effort is understandable. If it stood proved that the appellant remained away from Pirojpur until July 71, as the alibi witnesses claimed, he can not be guilty of any of the charges, as all the alleged offences took place in May ’71. Although the standard of proof for the prosecution is “beyond reasonable doubt”, pleas, taken by the defence, including the plea of alibi, is generally to be proved with civil standard i.e. with preponderance of probability. To substantiate his claimed absence from Pirojpur and transient stay in Jessore upto mid July ‘71, the appellant (as accused) examined some five witnesses namely D.Ws. 4, 6, 8, 12 and 14. He also relied on some documents in this regard. (Paras-800 & 801); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Benefit of doubt–– Accused is entitled to the benefit of doubt–– It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. We are of the view that the prosecution has not been able to prove its case beyond all shadow of doubt against the appellant, so the appellant is entitled to get benefit of doubt. Accordingly, we find substance in the appeal. The appellant Humayun Kabir, son of Liakatulla, of village- Newrain, Police Station Laksham, District Comilla is acquitted on the charge. ...Humayun Kabir(Md.) =VS= The State, [10 LM (AD) 619]

Benefit of doubt–– In Md. Ibrahim Hossain –Vs- The State ( 14 BLD (AD) 253), the Appellate Division emphasised that benefit of doubt can not be given for minor omissions. (Para-761); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Capital punishment–– While it is true that many countries have abolished death sentence, the position as it stands today, is that capital punishment prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional cases. (Source: Amnesty International and Penal Reform International). Countries that retain capital sentence, include the largest democracy, i.e. India, and 33 component States of the United States of America. Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13 (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence. (Penal Reform International). (Para-29); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65]

Capital sentence–– The Court is bound to award capital sentence– When it is found from the evidence that the death was intentional, the accused used deadly weapon, the incident of murder is gruesome, barbaric and motivated, and there is no extenuating circumstance to award the minimum sentence, the court is bound to award capital sentence. Besides, in the present incident nobody had the opportunity ever to remotely imagine the amount of such ghastly incident. .....Ataur Mridha =VS= The State, [3 LM (AD) 513]

Cognizable offence:–– A complaint of a cognizable offence–– A complaint of a cognizable offence recorded by a Magistrate and sent by him to the police for investigation and report is sufficient information justifying arrest under section 54 of the Code. Similarly, information that a warrant of arrest has been issued against a person in respect of a cognizable offence, may justify action being taken under the said section. Where, from a report of a Chowkider that certain persons were dacoits the police officer called them to surrender, but the latter resisted and fired shots at the officer, the latter was justified in arresting those persons. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Cognizable offence:–– Reasonable complaint or suspicion must depend upon the circumstances of each particular case–– Where a police officer suspecting that certain pieces of cloth which a man was carrying early morning, was stolen property, went to him and questioned him and having received unsatisfactory answers, arrested him, he was entitled to arrest him because reasonable suspicion exists of his being concerned of a cognizable offence. Where a person was found armed lurking at midnight in a village inhabited by persons well known to the police as professional dacoits, there was a reasonable suspicion against the person of his being concerned in a cognizable offence. But this does not mean that the police are limited only by their own discretion as to what persons they may arrest without warrant. Their powers in this respect are strictly defined by the Code. In order to act under the first clause, there must be a reasonable complaint or reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. What is a ‘reasonable’ complaint or suspicion must depend upon the circumstances of each particular case; but it should be at least founded on some definite fact tending to throw suspicion on the person arrested, and not on a mere vague surmise. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Cognizance of offence:–– Cognizance of offence by a courts of session–– The Indian provision is a bit different from ours. The Indian provision reads as under: “Cognizance of offence by a courts of session –Except as otherwise expressly provided by this court or by any other law for the time being enforce, no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate under this court”. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566]

Confession:–– Confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker–– The confessions have been corroborated by circumstantial evidence proved by the witnesses. Even if there is no corroborating evidence, if a confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker of the statement relying upon it subject to the conditions mentioned above. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566]

Confidential document–– It is however, to be noted that the case diary is a confidential document. So, it may not be claimed by the accused person at any time for the purpose of assessing and scrutinizing its entries. A criminal court is free to ask for the case diary at any stage of the proceedings. But, the case diary cannot be used as evidence in the trial. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Court of appeal:–– Normally Supreme Court does not reassess of the evidence–– Normally Appellate Division does not interfere with the judgment of the High Court Division on appeal if it is found that the judgment is based on proper appreciation of the evidence. It cannot reassess the evidence afresh as a court of appeal to examine whether or not the High Court Division has properly appreciated the evidence. .....Md. Akram =VS= The State, [1 LM (AD) 581]

Credible information–– There was no provision in the Codes of 1861 and 1872, enabling an arrest without warrant on credible information as to the person to be arrested being concerned in a cognizable offence. Such a provision was introduced for the first time in the Code of 1882. The words “credible information” include any information which, in the judgment of the officer to whom it is given appears entitled to credit in the particular instance. It need not be sworn information. The words “credible” and “reasonable” have reference to the mind of the person receiving the information. A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to “credible information”. The “reasonable suspicion” and “credible information” must relate to definite averments which must be considered by the police officer himself before he arrests a person under this section. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Criminal misconduct–– A criminal misconduct is said to have been committed by a public servant, if he accepts or obtains or agrees to obtain or attempts to obtain for himself or for any other person in gratification. .....RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1]

Criticism Judgment–– There is no wrong in critiquing a judgement once it is finally published. However, it must be borne in mind that deliberations during the course of any hearing may not be subjected to analysis or criticism since such comments in a sub judice matter might be prejudicial and taint the mind of the public before the judgement is pronounced. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28]

Delay–– Delay by itself in the execution of sentence of death is by no means an extenuating circumstances for commuting the sentence of death to imprisonment for life. There must be other circumstances of a compelling nature which together with delay will merit such commutation. We find no compelling extenuating circumstances in this case and therefore, find no ground whatsoever to interfere.” (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda (Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386]

Delay–– As regards the delay, this Court in the original judgment observed that mere delay in filing a case is not a ground for disbelieving the case. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581]

Death Penalty:–– Abolition of Death Penalty is not Possible–– Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286]

Death Penalty:–– A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286]

DGFI:–– Responsibility of Directorate General of Forces Intelligence (DGFI)–– An officer of DGFI who has sworn affidavit has also admitted impliedly that the money have been extorted by an officer of DGFI, but according to him, he has acted access of power for which the DGFI shall not take any responsibility. This statement belies the documents submitted by Bangladesh Bank. This force cannot deny its responsibility in view of the fact that after collection of the pay orders the officer communicated his action to its chief. It is claimed by the writ petitioners and also by the learned Counsel that the businessmen have been compelled to attend at a specified office under its control. They were kept sitting from dawn to dusk for days together and sometimes detained there without furnishing any information to their near ones. It was not possible to act as such on the part of one officer without knowledge and concurrence of the authority on consideration of the fact that it was not an isolated incident, rather the arrest, detention and torture both physically and mentally were carried out for days together against dignified and resourceful persons. It was a concerted effort on the part of this agency is beyond reprehensible. Those actions were taken openly and freely, and the same need not be proved. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., [3 LM (AD) 106]

Discretion:–– A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286]

Duty of the Court–– It is the duty of the Court to award proper sentence having regard to the nature of the offence and depending upon the degree of criminality, the manner in which it was committed and all attended circumstances. The occurrences of killing of intellectuals were committed with the extremely cruel and beastly manner which demonstrated index of the depraved character of the perpetrators. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. The Judges are carrying out the duty under the Law. The sentence awarded by the Tribunal for intellectuals killings is not disproportionate in view of the nature of charge and evidence adduced. (Para-231); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1]

Imprisonment for life–– A death may be commuted to imprisonment for life–– On the following grounds:- (a) The condemned-prisoner has no significant history of prior criminal activity. (b) Youth of the condemned-prisoner at the time of commission of the offence. (c) The condemned-prisoner would not be likely to commit acts of violence if released. (d) Confinement of the condemned-prisoner in the condemned cell from 09.06.2005 till date i.e. for more than 7 years during which period the sword of death has been hanging on his head. .....BLAST & another =VS= Bangladesh & others, [1 LM (AD) 353]

Imprisonment for life–– Five heads, namely, i) the motive for killing the deceased; ii) last seen theory; iii) recovery of the dead body in a gunny sack together with clothes and a knife; iv) the fact that the two accused persons, who were stated to be brothers, were absconding after the incident and v) the fact that Accused No.2 gave false information. The Sessions Court, on a combination of the aforesaid five factors, ultimately held the two accused guilty of murder and sentenced them to imprisonment for life. There were at least eight factors which led this Court to set aside the judgment passed by the Division Bench of the Andhra Pradesh High Court, on the ground that cumulatively all eight factors would lead to the conclusion that the High Court judgment was perverse. .....Parasa Koteswararao =VS= Eede Sree Hari, [3 LM (SC) 68]

Incumbit probatio qui decit, non qui negat–– means:– The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The Appellate Division held that the strong admission being corroborated by documentary evidence, it can be inferred beyond reasonable doubt that the accused was present in Chittagong during the relevant time of occurrences and hence, the plea of alibi taken by the defence is concocted, false and not believable. Since the defence admitted the presence of accused at the crime sites, the prosecution has been able to prove as to whether the accused was involved in those incidents. (Para-127); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511]

Individual Culpability–– While offence seriousness is one of the elements of proportionality, culpability of the individual offender is the other principal dimension of offence seriousness. Von Hirsch expressed harm and individual culpability as under; “Harm refers to the injury done or risked by the criminal act. Culpability refers to the factors of intent, motive and circumstances that determines how much the offender should be held accountable for his act. Culpability, in turns, affects the assessment of harm. The consequences that should be considered in ganging the harmfulness of an act should be those that can fairly be attributed to the actors choice” (Von Hirsch 1986 P-64-65). (Para-867); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Investigation officers–– The investigation officers do not have any discretion to take decision as to whether he will or will not record the events during investigation in the case diary. This is a compulsory statutory duty for every officer to record all the events in the case diary. This is the duty of the Officer-in-Charge to make sure that officers subordinate to him shall record necessary entries in the case diary properly. A case diary is an indicator how good and intellectual a police officer is. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Justice–– What is justice–– What is justice? How is justice related to law? According to Lucas (1980: 3), justice “differs from benevolence, generosity, gratitude, friendship, and compassion”. It is not something for which we should feel grateful, but rather, something upon which we have a right to insist. According to Plato, Justice consists of maintaining the societal status quo. Justice is one of four civic virtues, the others being wisdom, temperance, and courage. In an ordered state, everyone performs his or her role and, does not interfere with others. Each person’s role is the one for which the individual is best fitted by nature; thus, natural law is upheld. Aristotle believed that Justice exists in the law and that the law is “the unwritten custom of all or the majority of men which draws a distinction between what is honourable and what is base”. The concept of impartiality is at the core of our system of criminal justice. (Per S. K. Sinha, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), [9 LM (AD) 386]

Mass killing–– It was not at all necessary when the charge involve hundreds of victims. (Majority view), (Per Mr. Justice Hasan Foez Siddique). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593]

Mens rea–– Another Law point agitated by Mr. Razzak is on mens rea. The following observation of Smith & Hogan negatives Mr. Razzak’s complaint that the principle of mens rea was not applied by the Tribunal, “Everyone agrees that a person intends to cause a result if he acts with the purpose of doing so. If D has resolved to kill P and fires a loaded gun at him with an object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot, that P is nearly out of range, and that his chances of success are small. It is sufficient that killing is his object or purpose, that he wants to kill, that he acts in order to kill”. (Page 70, Tenth Edition Criminal Law: Smith & Hogan). In Moloney (1985, AC, 905) the House of Lords held that the mens rea of murder is intention to cause death or serious bodily harm. So, it was essential to determine the meaning of intention. Moloney must be read in the light of the explanation of it by the House in Hancock and Shankland 1986, AC, 455, the Court of Appeal in Nedrick and by the House in Woollin. When it is so read it appears that (1) a result is intended when it is the actor’s purpose to cause it, (2) a court or jury may also find that a result is intended, though it is not the actor’s purpose to cause it, when- (a) the result is virtually certain consequence of that act, and (b) the actor knows that it is a virtually certain consequence”. In order to establish that an accused possesses the requisite mens rea for instigating a crime, it must be shown that the accused directly or indirectly intended that the crime in question be committed and that the accused intended to provoke or induce the commission of the Crime, or was aware of the substantial likelihood that the Commission of the Crime would be a probable consequence of his acts (Prosecutor –vs-Muvunyi, Prosecutor –vs- linaj etal) Archbold Page-855. Mind of a person cannot be read and hence mens rea is only to be assessed from the attending facts and circumstances and also from the nature of the actus reas. In this case there are ample evidence to substantiate the allegation that the Appellant had mens rea of aiding and abetting as well for committing the offences by himself. On the Appellant’s participation in the offences at the dwelling of Hazrat Ali, the Privy Council’s decision in Barendra Kumar Ghosh –v- Emperor, the infamous Post Office Case, is relevant. In that case, a gang went to rob a post office and all except the appellant went inside the Post Office, killed the Post Master, but the appellant stayed out with a gun to look around. The Privy Council opined that he also would be liable of murder, though he was outside and did not shoot. Lord Sumner, in his part of the Councils opinion expressed, “ Even noting, as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait.” (AIR 1925 1PC) (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375]

Meticulous examination–– The Appellate Division opined that the High Court Division, on thorough and meticulous examination and consideration of the evidence on record and also other facts and circumstances rightly acquitted both the accused-respondents by the impugned judgment and order. In the circumstances this criminal petition for leave to appeal be dismissed. .....The State =VS= Asif Khan Riyad & another, [1 LM (AD) 534]

Modesty–– Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. "Modesty" of a women is intimately connect with feminity including her sex. .....Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466]

Monoism and Dualism–– In general, two principal theories persist, namely Monoism and Dualism on this point. Judiciary of the countries that follow Monoism subscribe to the view that International law and Municipal Law are concomitant aspects of the one (mono) system of law in general, while the judiciary in those countries that adhere to the Dualism, stick to the norm that international and municipal laws represent two diametrically distinct legal (dual) systems, international law having an intrinsically different character from that of municipal law. (J G Starke, Introduction to International law, page 72). Hans Kelsen termed Dualism as pluralist theory. Dualists expound the view that rules of international law can not directly and exproprio vigore be applied within the municipal sphere by State courts, i.e in order to be so applied such rules must undergo a process of “specific adoption” by or “specific incorporation” into, Municipal Law, while Monoist believe such rules are auto-incorporated into the municipal system. George Schwarzenberger (A Mannual of International Law, Fourth Edition, Vol-1. Page 40), insists that the two schools hold antithetically opposing views. Dualist believe International and Municipal Laws are separate and self-contained legal systems-contacts between them are possible but require express or tacit recognition of the rules of the one legal system by the other. (Page 41, Schwargenberger). Dualism grew in strength in the nineteenth century with the development of the pluralist doctrines of the sovereignty of state will, as propounded by Hegel and those who followed him, with the emergence of the concept of internal legal sovereignty. Triepel, one of the pivotal advocates of Dualism expressed in his book “Volkerrecht and Laudesrecht” 1899, that there are two fundamental differences between the two systems; (1) The subject of state law are individuals, while the subjects of International Law are states solely and exclusively. (2) Their judicial origins are different; the source of state law is the will of the state itself, the source of International Law is the common will of the states (Gemeinville). Anzilati, another arch exponent of Dualism, however, held that the difference lies in that Municipal law is conditioned by the fundamental norm that state legislation is to be obeyed, while International Law is conditioned by the doctrine of “pacta sunt servanda”, ie agreements between the states are to be respected, and hence two systems are so distinct that no conflict between the two are possible; there may be references from the one to the other, but nothing more (di Diritto Internazionale, 3rd edn 1928, Vol 1 page 43). Dualists hold high primacy of state law basing the same on the theory of the sovereignty of the state will, while the Monoists assert that all laws belong to a single unity, composed of binding legal rules, whether those rules are obligatory on states, on individuals, or on entities other than states. They believe that there can be no escape from the position that the two systems, because they are both systems of legal rules, are interwoven parts of one legal structure. Dualists’ argument on the Primacy of Municipal Law lies on the claim that states enjoy the very widest liberties and exercise complete sovereignty, while Monoists say States sovereignty is conditioned by the limits International Law imposes. Since, according to positivists theory, International Law and Municipal Law constitute two strictly separate and structurally different systems, the former can not impinge upon state law unless the latter, a logically different system, allows its constitutional machinery to be used for that purpose. (J G Strake supra, page 76). In the cases of treaties, rules regarding transformation of treaty into state law, i.e. by legislative approval of the treaty, which is not merely a formal but a substantive requirement, alone vindicates the extension to individuals of the rules laid down in treaties. While the US courts generally follow Monoist School, British courts draw a distinction between. i) Customary rules of International Law on the one hand and ii) the rules laid down by treaties, on the other. So far as the treaties are concerned, British courts consistently and without ambiguity follow Dualism i.e, adoption theory, stubbornly in that they do not give effect to any treaty provision which has not been specifically adopted domestically by legislation. So far as rules of Customary International law are concerned, however, the scenario is inflicted with some obscurity engendered by divergent judicial views, finally suggesting that in case of conflict domestic law must prevail. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375]

Performing duty as Judge–– While affirming the award of sentence of death, a person who used to work as Judge may not support the capital sentence but while performing his duty as Judge he is bound by law and fact. He is to decide the issue of awarding the sentence considering the gravity of the offence. While affirming this sentence as a Judge we must take into consideration the relevant laws, facts, evidence and situation of the relevant time. (Para-32); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65]

Plea of alibi–– Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the issues of some newspapers dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971 and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November 1971 to 16 December, 1971. Learned Counsel failed to show any evidence that the communication was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were: ÒAvR c~e© cvwK¯Ív‡bi Bmjvg QvÎms‡Ni mfvcwZi PÆMªv‡g AvMgb Ó evZ©v cwi‡ekK, Ò cvwK¯Ívb Bmjvgx QvÎ ms‡Ni c~e© cvwK¯Ív‡bi kvLvi mfvcwZ Rbve Avjx Avnmvb †gvnvg¥` gyRvnx‡`i 3 w`‡bi md‡i AvR XvKv ‡_‡K Avwmqv †cuvQv‡eb| GLv‡b Ae¯’vbKv‡j wZwb `jxq Kgx©‡`i Ges ivR‰bwZK †bZ„e„›`‡`i mwnZ †`‡ki eZ©gvb cwiw¯’wZ m¤ú‡K© Av‡jvPbv Ki‡eb Ges myax mgv‡e‡k e³„Zv Kwi‡eb ewjqv GK †cªm wiwj‡R ejv nBqv‡Q Ó | From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance. It is quite natural that since the President of EP ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and former leader of Chittagong town unit, ICS and local commander of Al-Badar Bahini would go and stay in Chittagong between 19th November, 1971 and 15 December, 1971. So the alibi, plea taken by the appellant does not carry any force. (Paras-197 & 198); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Police Culture–– The “culture” of a police department reflects what that department believes in as an organization. These beliefs are reflected in the department’s recruiting and selection practices, policies and procedures, training and development, and ultimately, in the actions of its officers in law enforcement situations. Clearly, all police departments have a culture. The key question is whether that culture has been carefully developed or simply allowed to develop without benefit of thought or guidance. There are police agencies, for example, where police use of force is viewed as abnormal. Thus, when it is used, the event receives a great deal of administrative attention. Such a response reflects the culture of that department: the use of force is viewed and responded to as an atypical occurrence. Contrast such a department with one which does not view the use of force as abnormal. And, most importantly, the culture of the department is such that officers come to view the use of force as an acceptable way of resolving conflict. It is clear that the culture of a police department, to a large degree, determines the organization’s effectiveness. That culture determines the way officers view not only their role, but also the people they serve. The key concern is the nature of that culture and whether it reflects a system of beliefs conducive to the nonviolent resolution of conflict. It is also important to recognize that the culture of a police department, once established, is difficult to change. Organizational change within a police agency does not occur in a revolutionary fashion. Rather, it is evolutionary. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Presumption of fact:–– A public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law–– It is now settled that a public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law. It is a presumption of fact. If the recovery and seizure are made in accordance with law, it is difficult to disbelieve the evidence of the seizing officer unless inherent infirmities are revealed in course of cross examination. Therefore, the onus lies upon the accused to show that no such arm was recovered from his possession. It is now settled that the non-examination of public witnesses is not a legal ground to disbelieve the prosecution case. This view has been taken on consideration of the present socio-economic condition and on the rise of criminal acts. Normally, the public witnesses are not willing to depose against the terrorist persons for fear of reprisal or other reasons. That will not disprove the recovery of arms. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. The accused respondent shall get the benefit of section 35A of the Code of Criminal Procedure. .....The State =VS= Md. Ali Reza, [5 LM (AD) 247]

Victims' Right–– Consideration of victims' rights now stand universally recognised. It is reckoned that the Court in sentencing an offender should not confine itself to the fundamental rights of the accused only, but must also take account of the victims' predicaments and rights. The Appellate Division is of view this concept is of particular importance in the context of the atrocities that were perpetrated during glorious war of liberation, as literally, the entire populace, save a handful of anti liberationists, were victims of those atrocities. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392] ....View Full Judgment

Burden of proof in wife killing case: What is more surprising to note here is that the appellant has not provided any reasonable explanation as to the cause of the death of his wife although in wife killing case, the condemned-appellant is under the obligation to do so. He has given all contradictory suggestions to the witnesses imputing allegations that the victim was a lady of lose character having illicit connection with others. In a misogynistic society, character assassination of women is a regular feature. In the case in hand even after death victim’s soul will not rest in peace because her two sons will know that their mother was a lady of questionable character. The condemned-appellant has failed to discharge his obligation by not explaining the cause of death of his wife in his house. [Syed Mahmud Hossain, CJ (Minority view)] …Md. Abdul Awal Khan Vs. The State, (Criminal), 16 SCOB [2022] AD 22 ....View Full Judgment

Basic pillars of Criminal Case:
It is pertinent to note that in a Criminal case, time, place and manner of occurrence are the 3(three) basic pillars upon which the foundation of the case stand on and the same are required to be strictly proved beyond reasonable doubt by the prosecution in a bid to ensure punishment for an offender charged with an offence. If in a given case any one of the above 3(three) pillars is found lacking or proved to be untrue then it is adversely react upon the entire prosecution case. ...Md. Helal Uddin Vs. The State, (Criminal), 18 SCOB [2023] HCD 264 ....View Full Judgment

Benefit of doubt–– Accused is entitled to the benefit of doubt–– It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. We are of the view that the prosecution has not been able to prove its case beyond all shadow of doubt against the appellant, so the appellant is entitled to get benefit of doubt. Accordingly, we find substance in the appeal. The appellant Humayun Kabir, son of Liakatulla, of village- Newrain, Police Station Laksham, District Comilla is acquitted on the charge. ...Humayun Kabir(Md.) =VS= The State, [10 LM (AD) 619] ....View Full Judgment

Benefit of doubt–– In Md. Ibrahim Hossain –Vs- The State ( 14 BLD (AD) 253), the Appellate Division emphasised that benefit of doubt can not be given for minor omissions. (Para-761); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

In the facts of the instant case, a 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (Minority View) …State Vs. Mostafizur Rahman and another, (Criminal), 1 SCOB [2015] AD 28
In facts, the story of rape itself gives rise to a grave suspicion implicating the accused, respondent; as such it will be fully within the domain of the appellate court to acquit the accused. Moreover, the reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person. (Majority View) …State Vs. Mostafizur Rahman and another, (Criminal), 1 SCOB [2015] AD 28 ....View Full Judgment

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. …Haji Mahmud Ali Londoni & anr Vs. State & anr, (Criminal), 5 SCOB [2015] AD 102 ....View Full Judgment

Commutation of Sentence: On the question of commutation of the sentence, we are to take into consideration the heinousness of the offence committed in juxtaposition with the mitigating circumstances. It is by now established that in Bangladesh the sentence for the offence of murder is death which may be reduced to one of imprisonment of life upon giving reasons. It has been the practice of this Court to commute the sentence of death to one of imprisonment for life where certain specific circumstances exist, such as the age of the accused, the criminal history of the accused, the likelihood of the offence being repeated and the length of period spent in the death cell. …Kamal alias Exol Kamal Vs. State, (Criminal), 10 SCOB [2018] AD 6
The death sentence is the most severe and irretrievable form of punishment. Once the sentence is carried out, it cannot be redeemed. It is certainly a cruel form of punishment which is an affront to human dignity. However, the death sentence is not unconstitutional in Bangladesh. …Kamal alias Exol Kamal Vs. State, (Criminal), 10 SCOB [2018] AD 6 ....View Full Judgment

The court can depend upon a single witness:
The court can very much rely on the evidence of a witness who is related to the victim or to other witnesses if the witness is considered by the Court reliable and that evidence of the witness is corroborated by other reliable witnesses. Besides this; in the case laws reported in 38 DLR(AD) 311 and 29 DLR(SC)211, it is a decided matter that the case of prosecution does not depend on the number of witnesses produced but it can depend upon a single witness whose evidence (testimony) is trustworthy, credible and unimpeachable. Therefore, obviously we can easily draw such inference in this matter that the case of the prosecution can stand very much on a single evidence if it is tangible and credible. …State Vs. Mir Ahmad Hossain & another, (Criminal), 1 SCOB [2015] HCD 45 ....View Full Judgment

Corroboration of evidence:
Where bitter enmity in between the parties is admitted some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. …Md. Zakir Hussain Vs. Md. Jalal Khan and another, (Criminal), 1 SCOB [2015] HCD 52 Presumption against prosecution:
The prosecution withheld those witnesses who are the other neighbours and the security guard etc. Nonexamination of those material witnesses who were able to corroborate the D.W-1, raises a presumption against prosecution that had they been examined in the case, they would not have supported the defence case and benefit of such defect will go the prosecution. …Md. Zakir Hussain Vs. Md. Jalal Khan and another, (Criminal), 1 SCOB [2015] HCD 52 ....View Full Judgment

Circumstantial Evidence:
Commission of crime can also be proved by circumstantial evidence. Circumstantial evidence is more cogent and convincing than the ocular evidence. It is correctly said that witnesses may tell a lie and it is not difficult to procure false tutored and biased witnesses but it is very much difficult to procure circumstantial evidence. …Md. Forhad Hossain Sheikh Vs. The State, (Criminal), 4 SCOB [2015] HCD 102
Burden of proof in wife killing case:
Ordinarily, an accused has no obligation to account for which he is placed on trial but in a wife killing case or wife murder case, the position of law is all together is different. The murder having taken place while the convict was living with the deceased wife Asmina in the same house, the convict has an obligation to explain how his wife met her death. …Md. Forhad Hossain Sheikh Vs. The State, (Criminal), 4 SCOB [2015] HCD 102 ....View Full Judgment

A confession is admissible provided it is free and voluntary but it does not mean that a mere bald assertion by the accused that he was threatened or tortured or that an inducement was offered to him, can be accepted as true without any thing more. The suggestion must be rejected when there is no material whatsoever to hold that the prisoner was threatened or beaten and the story of torture is, on the face of it incredible. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52
It is also well settled that judicial confession, if is found to be true and voluntary, can be formed basis of conviction as against the maker of the same. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52 ....View Full Judgment

The contention of learned Advocate Mr. S.M Abdul Mobin for the defence is that the sentence of death is too harsh in this case because both the accused persons tried to save the life of the victim removing him to more than one hospital from the place of occurrence as disclosed by the prosecution witnesses. Now the question is commutation of sentence as pointed out by the defence to be considered or not. In true sense, it is most difficult task on the part of a judge to decide what would be quantum of sentence in awarding upon an accused for committing the offence when it is proved by evidence beyond shadow of doubt but the judge should have considered the legal evidence and materials for punishment of the perpetrator not as a social activist [63 DLR 460, 18 BLD 81 and 57 DLR 591]. Sometimes, it depends on gravity of the offence and sometimes, it confers upon an aggravating or mitigating factor. …The State Vs. Md. Sharif & another’s, (Criminal), 13 SCOB [2020] HCD 120
In such a situation, it is a very hard job for the court to determine the quantum of sentence whether it will be capital punishment or imprisonment for life upon the accused persons since they played a role for saving the victim’s life soon after occurrence as evident by the said prosecution witnesses. At the same time it is very important to note that the victim was completely an innocent teenager who had no fault of such dire consequences at the hands of the accused persons. Since the determination of awarding sentence to the accused persons is at the middle point of views, it may turn to impose capital punishment or imprisonment for life and that is why, the advantage of lesser one shall find the accused persons to acquire in the instant case. More so, both the accused persons have no significant history of prior criminal activities and their PC and PR [previous conviction and previous records] are found nil in the police report. In this regard it finds support from the decision in the case of Nalu –Vs-The State, reported in 1 ALR(AD)(2012) 222 where one of the mitigating factors was previous records of the accused. …The State Vs. Md. Sharif & another’s, (Criminal), 13 SCOB [2020] HCD 120 ....View Full Judgment

Conjecture or hypothesis however strong it might be, cannot be the substitute for evidence:
In our criminal justice delivery system there is no scope to lean on hypothesis or conjecture instead of proof of the manner of occurrence by sufficient evidence to find out the guilt of an accused charged with an offence. It is the settled principle of law that conjecture or hypothesis however strong it might be, cannot be the substitute for evidence. In such a backdrop, it can be concluded that the learned judge of the court below erred in law in adjudging the culpability of the accused in the killing incident of the deceased woman by the impugned judgment and order which has utterly failed to withstand the legal scrutiny. …The State Vs. Rasu Kha, (Criminal), 16 SCOB [2022] HCD 161 ....View Full Judgment

Confession of the accused was preceded by a prolonged police custody which has seriously affected the involuntary character of the same:
It is undeniable that accused Rasu Kha was first arrested on 06-08-2009 from Gazipur Bazar in connection with another case filed with Faridgonj P.S. Chandpur and thereafter, he was shown arrested in the instant case on 15-10-2009 while he was also under police custody in connection with the earlier one and further that he was again taken on remand in the present case and eventually, he was produced before the relevant Magistrate court on 18-10-2009 by the investigation officer (P.W.6) with a prayer for recording his confession. Materials on record also do bear out the aforesaid factual events of the case. Therefore, it is patent that the confession of the accused was preceded by a prolonged police custody which has seriously affected the involuntary character of the same. …The State Vs. Rasu Kha, (Criminal), 16 SCOB [2022] HCD 161
It is to be noted further that charge of murder must be proved to the core beyond doubt by consistent and reliable evidence. When there is departure from the manner of occurrence as alleged by the prosecution found in the evidence during trial, the veracity of the prosecution case becomes doubtful and in such a case conviction and sentence cannot be sustained in the eye of law. …The State Vs. Rasu Kha, (Criminal), 16 SCOB [2022] HCD 161 ....View Full Judgment

A complete review of the evidence indicates that there was pre-existing hostility between the victim and appellant Mohiuddin. The motive for the commission of the murder is explicit from the evidence of P.Ws 22, 25, 39 and 43 which is relevant. Proof of motive does lend corroboration to the prosecution case. The same plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor. Motive prompts a person to form an opinion or intention to do certain illegal acts with a view to achieving that intention. Adequacy of motive is of little importance as it is seen that atrocious crimes are committed for very slight motives. One cannot see into the mind of another (State Vs. Santosh Kumar Singh, 2007 Cr LJ 964). However, motive alone is not sufficient to convict the accused in case of circumstantial evidence. Along with motive, there should be some further corroborative evidence. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Capital punishment–– While it is true that many countries have abolished death sentence, the position as it stands today, is that capital punishment prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional cases. (Source: Amnesty International and Penal Reform International). Countries that retain capital sentence, include the largest democracy, i.e. India, and 33 component States of the United States of America. Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13 (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence. (Penal Reform International). (Para-29); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65] ....View Full Judgment

Capital sentence–– The Court is bound to award capital sentence– When it is found from the evidence that the death was intentional, the accused used deadly weapon, the incident of murder is gruesome, barbaric and motivated, and there is no extenuating circumstance to award the minimum sentence, the court is bound to award capital sentence. Besides, in the present incident nobody had the opportunity ever to remotely imagine the amount of such ghastly incident. .....Ataur Mridha =VS= The State, [3 LM (AD) 513] ....View Full Judgment

Cognizable offence:–– A complaint of a cognizable offence–– A complaint of a cognizable offence recorded by a Magistrate and sent by him to the police for investigation and report is sufficient information justifying arrest under section 54 of the Code. Similarly, information that a warrant of arrest has been issued against a person in respect of a cognizable offence, may justify action being taken under the said section. Where, from a report of a Chowkider that certain persons were dacoits the police officer called them to surrender, but the latter resisted and fired shots at the officer, the latter was justified in arresting those persons. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Cognizable offence:–– Reasonable complaint or suspicion must depend upon the circumstances of each particular case–– Where a police officer suspecting that certain pieces of cloth which a man was carrying early morning, was stolen property, went to him and questioned him and having received unsatisfactory answers, arrested him, he was entitled to arrest him because reasonable suspicion exists of his being concerned of a cognizable offence. Where a person was found armed lurking at midnight in a village inhabited by persons well known to the police as professional dacoits, there was a reasonable suspicion against the person of his being concerned in a cognizable offence. But this does not mean that the police are limited only by their own discretion as to what persons they may arrest without warrant. Their powers in this respect are strictly defined by the Code. In order to act under the first clause, there must be a reasonable complaint or reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. What is a ‘reasonable’ complaint or suspicion must depend upon the circumstances of each particular case; but it should be at least founded on some definite fact tending to throw suspicion on the person arrested, and not on a mere vague surmise. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Cognizance of offence:–– Cognizance of offence by a courts of session–– The Indian provision is a bit different from ours. The Indian provision reads as under: “Cognizance of offence by a courts of session –Except as otherwise expressly provided by this court or by any other law for the time being enforce, no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate under this court”. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566] ....View Full Judgment

Confession:–– Confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker–– The confessions have been corroborated by circumstantial evidence proved by the witnesses. Even if there is no corroborating evidence, if a confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker of the statement relying upon it subject to the conditions mentioned above. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 566] ....View Full Judgment

Confidential document–– It is however, to be noted that the case diary is a confidential document. So, it may not be claimed by the accused person at any time for the purpose of assessing and scrutinizing its entries. A criminal court is free to ask for the case diary at any stage of the proceedings. But, the case diary cannot be used as evidence in the trial. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Court of appeal:–– Normally Supreme Court does not reassess of the evidence–– Normally Appellate Division does not interfere with the judgment of the High Court Division on appeal if it is found that the judgment is based on proper appreciation of the evidence. It cannot reassess the evidence afresh as a court of appeal to examine whether or not the High Court Division has properly appreciated the evidence. .....Md. Akram =VS= The State, [1 LM (AD) 581] ....View Full Judgment

Credible information–– There was no provision in the Codes of 1861 and 1872, enabling an arrest without warrant on credible information as to the person to be arrested being concerned in a cognizable offence. Such a provision was introduced for the first time in the Code of 1882. The words “credible information” include any information which, in the judgment of the officer to whom it is given appears entitled to credit in the particular instance. It need not be sworn information. The words “credible” and “reasonable” have reference to the mind of the person receiving the information. A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to “credible information”. The “reasonable suspicion” and “credible information” must relate to definite averments which must be considered by the police officer himself before he arrests a person under this section. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Criminal misconduct–– A criminal misconduct is said to have been committed by a public servant, if he accepts or obtains or agrees to obtain or attempts to obtain for himself or for any other person in gratification. .....RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1] ....View Full Judgment

Criticism Judgment–– There is no wrong in critiquing a judgement once it is finally published. However, it must be borne in mind that deliberations during the course of any hearing may not be subjected to analysis or criticism since such comments in a sub judice matter might be prejudicial and taint the mind of the public before the judgement is pronounced. .....The State =VS= Adv. Md. Qamrul Islam, M.P & another, [1 LM (AD) 28] ....View Full Judgment

Difference between cheating and breach of contract: In every case of cheating there is implicit agreement between the parties. The vital factor to be considered is whether at the time of agreement there was intention to carry out the terms of the contract or not. If there is nothing to show that there was no intention at the time of agreement which was arrived at, but the failure to fulfill the terms of the agreement was the subsequent event, the offence of cheating cannot be said to have been committed. It would only be a case of breach of contract. …Prof. Dr. Motior Rahman vs. The State & anr, (Criminal), 3 SCOB [2015] AD 1 ....View Full Judgment

Due process vis-a-vis crime control consideration:
In performing our duties, this court is charged with the task of not only assessing the facts against the law, but also considering the impacts of judgments that are pronounced and any assessment made on the overall justice system. With modern criminal justice mechanism, the right against self-incrimination is one that stands as a cornerstone. As such, confessions by a co-accused are generally inadmissible against the accused in a concerned case. However, in our duties of administering justice, we are sometimes faced with a case that forces us to consider aspects of larger policy at play. The balance between crime control and due process models of justice is such a consideration that requires reassessment with changing times and upon the fact of each case. The case before us is one of such a heinous crime, where measures of control are made far more necessary, to ensure that justice can be brought to the victim in question. As such, while due process is still of utmost importance; crime control considerations must be made as well. …Md. Shukur Ali and others Vs. The State, (Criminal), 16 SCOB [2022] AD 62
Adverse inferences may be drawn upon silence on part of those incriminated:
The principle of the right against self incrimination is also accompanied by the principle that upon silence on part of those incriminated, adverse inferences may be drawn at any stage of the trial and pre-trial procedures. When the co-accused, Azanur and Mamun put forth their confessions, incriminating the accused Shukur and Sentu, they had the opportunity to present their accounts of the events in question. Their refusal to adduce defence witness and to give any statement, allows this Court to draw an adverse inference against them, in conjunction with the inferences drawn from the period of their absconcion. …Md. Shukur Ali and others Vs. The State, (Criminal), 16 SCOB [2022] AD 62 ....View Full Judgment

Dying declaration:
A dying declaration, whether written or oral, if accepted by the Court unhesitatingly, can itself provide a strong basis for convicting an accused. …State Vs Kalam alias Abul Kalam, (Criminal), 6 SCOB [2016] HCD 43 ....View Full Judgment

Doctors should be cautious enough in holding autopsy in unnatural death cases:
The prosecution further failed to prove the time of occurrence. It appears from the evidence and other materials on record that the dead body of Kohinoor was found in the place and manner after 3 (three) days of her missing. The doctor found most of the organs of the corpse decomposed and blister all over the body. But in the report they did not wrote about the approximate time of death of the deceased. We find that the doctors very casually examined the corpse and held autopsy on it. They did not mention the condition of eyes and other necessary symptoms generally found internally and externally to determine the death. They should be cautious enough in holding autopsy in unnatural death cases. Their callousness in holding autopsy may result in miscarriage of justice. …State & anr Vs. Md. Mostafa Sarder & anr, (Criminal), 16 SCOB [2022] HCD 188 ....View Full Judgment

Delay–– Delay by itself in the execution of sentence of death is by no means an extenuating circumstances for commuting the sentence of death to imprisonment for life. There must be other circumstances of a compelling nature which together with delay will merit such commutation. We find no compelling extenuating circumstances in this case and therefore, find no ground whatsoever to interfere.” (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda (Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death:
From the nature of the offence it appears to us that the petitioner is in no way entitled to get any sympathy. We do 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. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

Delay–– Delay by itself in the execution of sentence of death is by no means an extenuating circumstances for commuting the sentence of death to imprisonment for life. There must be other circumstances of a compelling nature which together with delay will merit such commutation. We find no compelling extenuating circumstances in this case and therefore, find no ground whatsoever to interfere.” (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda (Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

Delay–– As regards the delay, this Court in the original judgment observed that mere delay in filing a case is not a ground for disbelieving the case. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581] ....View Full Judgment

Death Penalty:–– Abolition of Death Penalty is not Possible–– Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Death Penalty:–– A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

DGFI:–– Responsibility of Directorate General of Forces Intelligence (DGFI)–– An officer of DGFI who has sworn affidavit has also admitted impliedly that the money have been extorted by an officer of DGFI, but according to him, he has acted access of power for which the DGFI shall not take any responsibility. This statement belies the documents submitted by Bangladesh Bank. This force cannot deny its responsibility in view of the fact that after collection of the pay orders the officer communicated his action to its chief. It is claimed by the writ petitioners and also by the learned Counsel that the businessmen have been compelled to attend at a specified office under its control. They were kept sitting from dawn to dusk for days together and sometimes detained there without furnishing any information to their near ones. It was not possible to act as such on the part of one officer without knowledge and concurrence of the authority on consideration of the fact that it was not an isolated incident, rather the arrest, detention and torture both physically and mentally were carried out for days together against dignified and resourceful persons. It was a concerted effort on the part of this agency is beyond reprehensible. Those actions were taken openly and freely, and the same need not be proved. .....Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., [3 LM (AD) 106] ....View Full Judgment

Discretion:–– A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void. .....BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] ....View Full Judgment

Duty of the Court–– It is the duty of the Court to award proper sentence having regard to the nature of the offence and depending upon the degree of criminality, the manner in which it was committed and all attended circumstances. The occurrences of killing of intellectuals were committed with the extremely cruel and beastly manner which demonstrated index of the depraved character of the perpetrators. It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. The Judges are carrying out the duty under the Law. The sentence awarded by the Tribunal for intellectuals killings is not disproportionate in view of the nature of charge and evidence adduced. (Para-231); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1] ....View Full Judgment

Evidence of interested witnesses:
The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than an ordinary rule of appreciation of evidence. …Abdul Mazid @ Khoka & ors Vs. State & ors, (Criminal), 5 SCOB [2015] HCD 9 ....View Full Judgment

Prosecution must bear the responsibility for all its laches and lapses:
In the present case before us, there are many laches and lapses as noticed above and those lapses may be by default or by design and the prosecution must bear the responsibility for all its laches and lapses. …Abdul Mazid @ Khoka & ors Vs. State & ors, (Criminal), 5 SCOB [2015] HCD 9 ....View Full Judgment

Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal:
Joint trial of different offences under different enactments does not vitiate proceedings in the absence of prejudice to the accused, particularly when the special enactment authorizes the Court to try different offences jointly where a charge is framed for one offence but offence committed is found to be some other than the one charged, provided, the same facts can sustain a charge for the latter offence, the accused can be convicted for such an offence. Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 ....View Full Judgment

F.I.R: Where there is no F.I.R. or where the F.I.R. cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it. (Nazmun Ara Sultana, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1
Discrepency always occurs even in the evidence of the truthful witnesses:
The learned Counsel has contended that these contradictory statements of these P.Ws. reasonably make these witnesses untrustworthy. But we are unable to accept this argument of the learned Counsel in this present case. Considering the very facts and circumstances of this case we rather, are of the view that it was very much natural on the part of the witnesses to make discrepent statements regarding colour of the wearing clothes and the weapons of the assaillants and that these discrepent or contradictory statements of the P.Ws. are so trifling in nature that these cannot raise any suspicion about the truthfulness of the witness or about the occurrence they narrated. The learned Counsel for the accused-respondents has pointed out some other alleged minor discrepent or contradictory statements also in the evidence of the prosecution withnesses, but we do not find any of these alleged discrepent or contradictory statemetns of the prosecution witnesses fatal at all to raise any suspicion about the truthfulness of these witnesss. Discrepency always occurs even in the evidence of the truthful witnesses. It is also settled that one part of evidence of a witness even if is rejected the other part of the evidence of the same witness may be accepted. (Nazmun Ara Sultana, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1 ....View Full Judgment

Fundamental principles of criminal jurisprudence and justice delivery system:
Fundamental principles of criminal jurisprudence and justice delivery system is the innocence of the alleged accused who should be presumed to be innocent until the charges are proved beyond reasonable doubt on the basis of clear, cogent and credible evidence and that onus of proving everything essential to the establishment of charge against the accused lies upon the prosecution which must prove charge substantially as laid to hilt and beyond all reasonable doubt on the strength of clear, cogent credible and unimpeachable evidence. In a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and on its failure, it cannot fall back upon the evidence adduced by the accused in support of his defence to rest its case solely thereon. Proof of charge must depend upon judicial evaluation of totality of evidence, oral and circumstantial, and not by an isolated scrutiny. Prosecution version is also required to be judged taking into account the overall circumstances of the case with a practical, pragmatic and reasonable approach in appreciation of evidence. …State Vs Md. Nurul Amin Baitha & anr, (Criminal), 7 SCOB [2016] HCD 40
We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.
b) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.
d) There must be clear and unequivocal proof of the corpus delicit.
e) The hypothesis of delinquency should be consistent with all the facts proved. …State Vs Md. Nurul Amin Baitha & anr, (Criminal), 7 SCOB [2016] HCD 40
When it is established that the husband and wife were residing in the same house at the relevant time, the husband is duty bound to explain the circumstances how his wife met her death and in absence of any explanation coming from the husband, irresistible presumption is that it is the husband who is responsible for her death. …State Vs Md. Nurul Amin Baitha & anr, (Criminal), 7 SCOB [2016] HCD 40 ....View Full Judgment

Framing of Charge:
Where the allegation has been brought against the petitioners that they made the payment okay on some cheques by which the money was misappropriated, the cheques were essential alamots to prosecute the petitioners. In the absence of those, on which the petitioners were indicted with allegations that the payment was made in violation of the constitution of the Samity and also that they abetted the offence, the prosecution will not succeed in any manner. Moreover, we find that in the absence of seizing of those cheques as alamots, there was no sufficient materials before the Court to frame charge against the petitioners under the aforesaid sections. Moreover, the written statement of principal accused Nos.1 and 2 dated 14.12.2006 and 28.11.2007 before the departmental inquiry committee shows that they did not utter a single word implicating the petitioners.
In the aforesaid facts and circumstances, we find that the Special Judge framed charge against the petitioners under the aforesaid sections in violation of the settled principle of law of framing charge. The Divisional Special Judge, Rajshahi framed charged against the petitioners, in the absence of sufficient materials against them before it. …Zobeda Khatoon & anr Vs. State & anr, (Criminal), 9 SCOB [2017] HCD 173 ....View Full Judgment

The form prescribed in the Criminal Rules and Order (Practice and Procedure of Subordinate Courts), 2009 presupposes no handwritten memorandum under column No.7. However, there is a blank space for making memorandum under column No.8, which the recording Magistrate is required to fill up stating the reason of his belief regarding voluntariness of the confession. …The State Vs. Abul Kashem & ors., (Criminal), 13 SCOB [2020] HCD 103 ....View Full Judgment

For entertaining a review an error has to be one which is so obvious that keeping it on the record will be legally wrong:
Further, it has now been settled that an error is necessary to be a ground for review but it must be one which is so obvious that keeping it on the record will be legally wrong. The moot point is, a party to a litigation is not entitled to seek a review of judgment merely for the purpose of rehearing or a fresh decision of the case. The power can be extended in a case where something obvious has been overlooked-some important aspects of the matter has not been considered, the court can reconsider the matter. There are exceptional cases where the court can remedy its judgment. In the alternative, it may be said that the error must also have a material real ground on the face of the case. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

How to attach weight to the testimony of witness:
The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness. …State & ors Vs. Abul Kalam & ors, (Criminal), 3 SCOB [2015] HCD 74 ....View Full Judgment

How weight to be attached to the testimony of witness:
The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness. …State Vs Md. Nurul Amin Baitha & anr, (Criminal), 7 SCOB [2016] HCD 40 ....View Full Judgment

How weight to be attached to the testimony of witness:
The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness. …State Vs Md. Nurul Amin Baitha & anr, (Criminal), 7 SCOB [2016] HCD 40 ....View Full Judgment

International Crimes Tribunal Matter: The cardinal principle of assessment of evidence is that the entire evidence is to be considered as a whole and then a decision is to be arrived. There is no scope to consider one statement made in cross-examination in isolation. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
It is the cardinal principle of law of evidence that hearsay evidence is to be considered together with circumstances and the material facts depicted. If hearsay evidence has probative value then it is admissible in evidence. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
In order to incur criminal liability in a case of crime against humanity, the accused himself need not participate in all aspects of the criminal conduct. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
It is of the essence of the crime of abetment that abettor should assist the principal culprits towards the commission of the offence. Participation de facto may sometimes be obscure in detail, it is established by the presumption Juris et de jure that actual presence plus prior abetment can mean nothing else but participation. (Majority view) (Per Mr. Justice Hasan Foez Siddique) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
When a charge involves hundred of victims, it is not at all necessary for the prosecution to narrate the names of all the victims. (Majority view) (Per Mr. Justice Hasan Foez Siddique) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1
In a criminal case the prosecution must prove the charge brought against an accused beyond any shadow of reasonable doubt. Criminal cases are not like civil cases. In criminal case the accused may only take the plea of not guilty and the burden is entirely upon the prosecution to prove its case. Cross-examination is not also necessary on the entire deposition of a witness as it may damage the defence case. Non-cross-examination on a certain fact would not make the deposition of a witness on that point admitted facts. (Minority View) (Per Madam Justice Zinnat Ara) …A.T.M. Azharul Islam Vs. Chief Prosecutor, ICT, (Criminal), 14 SCOB [2020] AD 1 ....View Full Judgment

It is the unanimous view of our Court that when a forged document is brought into a Court, private complaints subsequent to this are not maintainable. The documents in serial No.30 and 31 (Annexure-I to this petition) were not found to be forged by the Court where it was produced. In a proceeding where a forged document has been used, the Court concerned should make the complaint. Since the alleged forged document has been filed in a Civil Court, it is for the concerned Civil Court to lodge any complaint before the Criminal Court if it finds any forgery relating to the said document. …Sheikh Ferozur Rahman Vs. State & another, (Criminal), 1 SCOB [2015] HCD 1 ....View Full Judgment

In the present case being a case of drug/narcotics, it was incumbent on the prosecution to get the seized phensedyl examined by a chemical expert to prove that the seized articles were actually madak drobyo/drug and under what category of madak drobyo/drug it fell. Absence of such chemical examination and contradictions between the two sets of prosecution witnesses, casted a shadow of doubt over the prosecution case. …Rezaul Amin Vs. State, (Criminal), 3 SCOB [2015] HCD 116 ....View Full Judgment

It appears that none of the three local witnesses were eye witnesses rather they were asked to sign as witness, which is absolutely derogatory to the norms of law and the BDR and the local police for inflicting penalty upon the accused petitioners resorted to such activity which is seriously deplorable. …Md. Abdul Kader & another Vs The State, (Criminal), 11 SCOB [2019] HCD 79
Every citizen has a right to free movement within Bangladesh and to do any business or profession subject to restriction imposed by law. …Md. Abdul Kader & another Vs The State, (Criminal), 11 SCOB [2019] HCD 79 ....View Full Judgment

It also appears from the record that at the time of framing charge petitioner No.1 M.N. Kamal Hossain remained absent but charge was framed accordingly and warrant of arrest was issued. By suppressing the said fact of issuance of warrant of arrest, he moved before this Court in Criminal Miscellaneous Case No.8151 of 2008 and on 08.06.2008 obtained Rule and interim order of anticipatory bail for a limited period. The said interim order was not extended. Ultimately the Rule was discharged on 21.12.2011 and the concerned Court was directed to take necessary steps to secure his arrest.
In view of the above petitioner No.1 M.N. Kamal Hossain is a fugitive from justice. He is not entitled to file this application before this Court and to get any order on it. …M.N. Kamal Hossain & anr. Vs. State, (Criminal), 11 SCOB [2019] HCD 113 ....View Full Judgment

In this particular case, we find that the victim grasped the genital organ of the convict tightly and compressed it by applying force. The appellant requested her to leave him but she did not release it, thereafter he pressed the throat of the victim to get rid of the attack and to release his scrotum. He had no intention or preplan to commit any offence. It was just an accident at the event of exercising his right of private defence to save him from his aggressive wife, the deceased. …The State & anr Vs. Md. Abdus Salam & anr, (Criminal), 15 SCOB [2021] HCD 94
In dealing with the question as to whether more harm has been caused than is necessary, or if that was justifiable under the prevailing circumstances, it would be so inappropriate to adopt test of detached objectively. That is why in some judicial decisions it has been observed that the means which a threatened person adopts or the force he uses should not be weighed in golden scales. …The State & anr Vs. Md. Abdus Salam & anr, (Criminal), 15 SCOB [2021] HCD 94
The burden of proof of self-defence rests on the accused but this burden is not an onerous as the unshifting burden which lies on the prosecution to establish every ingredients of the offence with which the accused is charged. …The State & anr Vs. Md. Abdus Salam & anr, (Criminal), 15 SCOB [2021] HCD 94 ....View Full Judgment

In a criminal case time, place and manner of occurrence are required to be strictly proved beyond reasonable doubt: It is to be noted that in a criminal case time, place and manner of occurrence are the 3(three) basic pillars upon which the foundation of the case stand on and the same are required to be strictly proved beyond reasonable doubt by the prosecution in a bid to ensure punishment for an offender charged with an offence. If in a given case any one of the above 3(three) pillars is found lacking or proved to be untrue then it will adversely react upon the entire prosecution story. The same thing has happened in the instant case inasmuch as according to the prosecution story the deceased woman was killed by drowning, whereas as per medico-legal evidence furnished by P.W.11 Dr. Habibur Rahman, the victim was killed by strangulation and thereafter her dead body was abandoned in the water. The inquest-report also does bear out the aforesaid cause of death of the victim woman. Therefore, it is clear like anything that the prosecution has miserably failed to prove the manner of occurrence of the incident. Viewing from this angle there is no hesitation in saying that the confession alleged to have been made by accused Rasu Kha is not true so far as it relates to the manner of occurrence of the incident in concerned. …The State Vs. Rasu Kha, (Criminal), 16 SCOB [2022] HCD 161 ....View Full Judgment

It is well settled principle that if the prosecution case is proved otherwise beyond reasonable doubt based on evidence, the accused can be convicted despite the seizure list witnesses denied supporting the prosecution case i.e. recovery and seizure. ...The State Vs. Badal Kumar Paul, (Criminal), 17 SCOB [2023] AD 43 ....View Full Judgment

In the larger interest of justice the Court may overlook a mere irregularity or a trivial breach in the observance of any procedural law:
Depending on the facts and circumstances of a particular case in the larger interest of justice the Court may overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court may pass any appropriate order which will serve the interest of justice best. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. It is intended to achieve the ends of justice and normally, not to shut the doors of justice for the parties at the very threshold. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 ....View Full Judgment

Imprisonment for life–– A death may be commuted to imprisonment for life–– On the following grounds:-
(a) The condemned-prisoner has no significant history of prior criminal activity.
(b) Youth of the condemned-prisoner at the time of commission of the offence.
(c) The condemned-prisoner would not be likely to commit acts of violence if released.
(d) Confinement of the condemned-prisoner in the condemned cell from 09.06.2005 till date i.e. for more than 7 years during which period the sword of death has been hanging on his head. .....BLAST & another =VS= Bangladesh & others, [1 LM (AD) 353] ....View Full Judgment

Imprisonment for life–– Five heads, namely, i) the motive for killing the deceased; ii) last seen theory; iii) recovery of the dead body in a gunny sack together with clothes and a knife; iv) the fact that the two accused persons, who were stated to be brothers, were absconding after the incident and v) the fact that Accused No.2 gave false information. The Sessions Court, on a combination of the aforesaid five factors, ultimately held the two accused guilty of murder and sentenced them to imprisonment for life. There were at least eight factors which led this Court to set aside the judgment passed by the Division Bench of the Andhra Pradesh High Court, on the ground that cumulatively all eight factors would lead to the conclusion that the High Court judgment was perverse. .....Parasa Koteswararao =VS= Eede Sree Hari, [3 LM (SC) 68] ....View Full Judgment

Incumbit probatio qui decit, non qui negat–– means:– The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The Appellate Division held that the strong admission being corroborated by documentary evidence, it can be inferred beyond reasonable doubt that the accused was present in Chittagong during the relevant time of occurrences and hence, the plea of alibi taken by the defence is concocted, false and not believable. Since the defence admitted the presence of accused at the crime sites, the prosecution has been able to prove as to whether the accused was involved in those incidents. (Para-127); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511] ....View Full Judgment

Incumbit probatio qui decit, non qui negat–– means:– The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof.
The Appellate Division held that the strong admission being corroborated by documentary evidence, it can be inferred beyond reasonable doubt that the accused was present in Chittagong during the relevant time of occurrences and hence, the plea of alibi taken by the defence is concocted, false and not believable. Since the defence admitted the presence of accused at the crime sites, the prosecution has been able to prove as to whether the accused was involved in those incidents. (Para-127); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511] ....View Full Judgment

Individual Culpability–– While offence seriousness is one of the elements of proportionality, culpability of the individual offender is the other principal dimension of offence seriousness. Von Hirsch expressed harm and individual culpability as under;
“Harm refers to the injury done or risked by the criminal act. Culpability refers to the factors of intent, motive and circumstances that determines how much the offender should be held accountable for his act. Culpability, in turns, affects the assessment of harm. The consequences that should be considered in ganging the harmfulness of an act should be those that can fairly be attributed to the actors choice” (Von Hirsch 1986 P-64-65). (Para-867); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Investigation officers–– The investigation officers do not have any discretion to take decision as to whether he will or will not record the events during investigation in the case diary. This is a compulsory statutory duty for every officer to record all the events in the case diary. This is the duty of the Officer-in-Charge to make sure that officers subordinate to him shall record necessary entries in the case diary properly. A case diary is an indicator how good and intellectual a police officer is. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

A Judge does not presides over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape the tentacles of justice. That is what the justice stands for. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Justice–– What is justice–– What is justice? How is justice related to law? According to Lucas (1980: 3), justice “differs from benevolence, generosity, gratitude, friendship, and compassion”. It is not something for which we should feel grateful, but rather, something upon which we have a right to insist. According to Plato, Justice consists of maintaining the societal status quo. Justice is one of four civic virtues, the others being wisdom, temperance, and courage. In an ordered state, everyone performs his or her role and, does not interfere with others. Each person’s role is the one for which the individual is best fitted by nature; thus, natural law is upheld. Aristotle believed that Justice exists in the law and that the law is “the unwritten custom of all or the majority of men which draws a distinction between what is honourable and what is base”. The concept of impartiality is at the core of our system of criminal justice. (Per S. K. Sinha, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), [9 LM (AD) 386] ....View Full Judgment

The ligature mark in case of strangulation is commonly found round around the neck and in case of hanging eyes of the deceased are found closed according to the view expressed by experts:
The ligature mark in case of strangulation is commonly found round around the neck but here it is found ‘ill defined and anterior aspect of the neck’. Showing the condition of fracture of hyoid bone, Mr. Ahammad submits that Medical Jurisprudence speaks of fracture of hyoid bone common in strangulation but it is absent in hanging and from that point of view, the present case is purely a case of strangulation. We find in Modi’s Medical Jurisprudence (20th and 22nd edition), that in case of strangulation larynx, trachea and hyoid bone (all) are often found fractured but it is rare in hanging. In this case only hyoid bone is found fractured. Moreover, Reddy in his Medical Jurisprudence, 34th Edition, 2017 (Page-328) found fracture of hyoid bone uncommon in strangulation but may occur in hanging. In view of the above position, the submission of Mr. Ahammad does not stand but supports the defence case of hanging. Moreover, in the inquest, the IO found the eyes of the deceased closed which according to the view expressed by Modi is also a sign that the victim’s death was from handing. …State & anr Vs. Md. Mostafa Sarder & anr, (Criminal), 16 SCOB [2022] HCD 188 ....View Full Judgment

Members of Parliament are Public Servants: The oath that they took referred to their obligation to “faithfully discharge the duty” upon which they were about to enter. They are public servants since they held office by virtue of which they were authorized or required to perform public duty. The word “office” has been used in Articles 3 and 3D of P.O.28 of 1973 meaningfully. …Anti Corruption Commission Vs Md. Shahidul Islam & ors, (Criminal), 6 SCOB [2016] AD 74
The Anti-Corruption Commission Act is applicable in respect of public servant as well as “any other person”. …Anti Corruption Commission Vs Md. Shahidul Islam & ors, (Criminal), 6 SCOB [2016] AD 74 ....View Full Judgment

Motive: The prosecution cannot be saddled with an exclusive responsibility of proving motive of each of the assailants. Because it is only the assailant, who can best say his motive for causing the death. But on that ground we cannot lessen the credibility of alleged complicity of the condemned-appellants in killing the victim. …State & ors Vs. Rafiqul Islam & ors, (Criminal), 4 SCOB [2015] HCD 139 ....View Full Judgment

Motive:
There might be, as it appears, some animosity or hostility between the accusedappellant’s husband Ali Haider and the deceased’s father Abdur Rashid. But there was no such enmity between the accused-appellant and deceased’s father or mother. In view of the facts above and evidence given by the prosecution, it is beyond our comprehension as to how and on the basis of which the learned Session Judge became convinced with and relied upon the prosecution case of killing Rabbi by the accusedappellant. Since there was no such reason for the accused-appellant to have any motive of killing an innocent minor boy of only 3 ½ years old, it seems to us hardly possible to believe in the alleged charge of causing death of Rabbi by the accused-appellant. …Rahima Begum VS. The State, (Criminal), 5 SCOB [2015] HCD 84 ....View Full Judgment

Motive when immaterial:
In a murder case like this where the occurrence appears to be proved by the direct evidence of the eye witnesses, the proof of motive is always immaterial. When the proof of any grave offence depends upon the circumstantial evidence, the motive is one of the component to find the accused guilty. …State Vs Kalam alias Abul Kalam, (Criminal), 6 SCOB [2016] HCD 43 ....View Full Judgment

Mere declaration of the seizure list witnesses as hostile in no way cured the defect of the prosecution case. …Md. Biddut alias Helal Khan Vs. State, (Criminal), 11 SCOB [2019] HCD 90 ....View Full Judgment

Merely for the reason of political identity of a person prosecuted for an offence punishable under the penal law it cannot be said that she has been brought to justice on political victimization. …Begum Khaleda Zia Vs. State & another, (Criminal), 12 SCOB [2019] HCD 146
We do not find any legal justification and cogent ground to award lesser punishment to the principal offender Begum Zia than the other convicts who were the abators, considering her political and social status. …Begum Khaleda Zia Vs. State & another, (Criminal), 12 SCOB [2019] HCD 146 ....View Full Judgment

Mitigating factors to consider the lesser punishment from death sentence to life imprisonment;
This sentence that someone be punished in such a manner is referred to as ‘Death Sentence’, whereas the act of carrying out the death sentence is known as execution. The execution is not only an exemplary punishment alone that can erase the crime from the society forever. Lesser punishments may significantly prevent or reduce the crimes from the society depending on the good governance and awareness of the people. To consider the lesser punishment from death sentence to life imprisonment mitigating evidence or circumstances must be stronger than that of aggravating evidence produced by the prosecution. In this case we find the following circumstances outweigh the aggravating circumstances,
1. Condemned prisoner committed double murder without any apparent motive and was suffering from mental derailment or some sort of mental disorder and also suffering from ovarian cyst and bronchial asthma;
2. Her paternal grandmother and maternal uncle had a history of psychiatric disorders according to exibit-15;
3. She was around 19[nineteen] year old at the relevant time and the occurrence took place just immediately after her attaining the age of majority;
4. She has no such significant history of prior criminal activity [criminal cases] and
5. She had willingly surrendered to the police station soon after two days of the occurrence. …The State Vs. Oyshee Rahman, (Criminal), 12 SCOB [2019] HCD 238 ....View Full Judgment

Mitigating factors to consider the lesser punishment from death sentence to life imprisonment;
The contention of learned Advocate Mr. S.M Abdul Mobin for the defence is that the sentence of death is too harsh in this case because both the accused persons tried to save the life of the victim removing him to more than one hospital from the place of occurrence as disclosed by the prosecution witnesses. Now the question is commutation of sentence as pointed out by the defence to be considered or not. In true sense, it is most difficult task on the part of a judge to decide what would be quantum of sentence in awarding upon an accused for committing the offence when it is proved by evidence beyond shadow of doubt but the judge should have considered the legal evidence and materials for punishment of the perpetrator not as a social activist [63 DLR 460, 18 BLD 81 and 57 DLR 591]. Sometimes, it depends on gravity of the offence and sometimes, it confers upon an aggravating or mitigating factor. …The State Vs. Md. Sharif & another, (Criminal), 12 SCOB [2019] HCD 258
In such a situation, it is a very hard job for the court to determine the quantum of sentence whether it will be capital punishment or imprisonment for life upon the accused persons since they played a role for saving the victim’s life soon after occurrence as evident by the said prosecution witnesses. At the same time it is very important to note that the victim was completely an innocent teenager who had no fault of such dire consequences at the hands of the accused persons. Since the determination of awarding sentence to the accused persons is at the middle point of views, it may turn to impose capital punishment or imprisonment for life and that is why, the advantage of lesser one shall find the accused persons to acquire in the instant case. More so, both the accused persons have no significant history of prior criminal activities and their PC and PR [previous conviction and previous records] are found nil in the police report. In this regard it finds support from the decision in the case of Nalu –Vs-The State, reported in 1 ALR(AD)(2012) 222 where one of the mitigating factors was previous records of the accused. …The State Vs. Md. Sharif & another, (Criminal), 12 SCOB [2019] HCD 258 ....View Full Judgment

Medical evidence is not sacrosanct and may be rejected by the Court, if found contradictory with the symptoms found on the dead body and oral evidence of witnesses:
It transpires from the evidence of witnesses that there was strained relation between the husband and wife for the second marriage of the condemned-prisoner. The fact of missing of the deceased wife before 3 (three) days of tracing her body hanged and the surrounding circumstances lead us to believe that she might have committed suicide at the place and in the manner for the reason of her husband’s second marriage. The defence has been able to make out a specific and believable case of suicidal hanging by putting suggestions to the prosecution witnesses. The necropsy report and the evidence of doctor in support of strangulation and intracranial haemorrhage are not a gospel truth or sacrosanct. These may be scrutinized and rejected by the Court, if found contradictory with the symptoms found on the dead body and oral evidence of witnesses. …State & anr Vs. Md. Mostafa Sarder & anr, (Criminal), 16 SCOB [2022] HCD 188 ....View Full Judgment

When dead body of the victim is found in an open land mere pointing of the location of the dead body by an accused alone cannot be taken as a legal prove against him:
Three witnesses, namely P.W.3 Md. Ali, P.W.4 Mamun and P.W.5 Siraj have supported the evidence of P.W.11 S.I. Sultan Mahmud that at the showing of accused Bablu the dead body of victim Linkon was recovered. Undisputedly the dead body of victim Linkon was found in an open agricultural land which belonged to P.W.7 Mojibur. As such mere pointing of the location of the dead body by an accused alone cannot be taken as a legal prove that he committed the offence of murder unless above showing is supported by other legal evidence proving the complicity of the accused with the act of murder of victim Linkon. …The State Vs. Md. Shohag Howlader & anr, (Criminal), 16 SCOB [2022] HCD 206 ....View Full Judgment

Mass killing–– It was not at all necessary when the charge involve hundreds of victims. (Majority view), (Per Mr. Justice Hasan Foez Siddique). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593] ....View Full Judgment

Mens rea–– Another Law point agitated by Mr. Razzak is on mens rea.
The following observation of Smith & Hogan negatives Mr. Razzak’s complaint that the principle of mens rea was not applied by the Tribunal,
“Everyone agrees that a person intends to cause a result if he acts with the purpose of doing so. If D has resolved to kill P and fires a loaded gun at him with an object of doing so, he intends to kill. It is immaterial that he is aware that he is a poor shot, that P is nearly out of range, and that his chances of success are small. It is sufficient that killing is his object or purpose, that he wants to kill, that he acts in order to kill”. (Page 70, Tenth Edition Criminal Law: Smith & Hogan). In Moloney (1985, AC, 905) the House of Lords held that the mens rea of murder is intention to cause death or serious bodily harm. So, it was essential to determine the meaning of intention. Moloney must be read in the light of the explanation of it by the House in Hancock and Shankland 1986, AC, 455, the Court of Appeal in Nedrick and by the House in Woollin. When it is so read it appears that (1) a result is intended when it is the actor’s purpose to cause it, (2) a court or jury may also find that a result is intended, though it is not the actor’s purpose to cause it, when- (a) the result is virtually certain consequence of that act, and (b) the actor knows that it is a virtually certain consequence”.
In order to establish that an accused possesses the requisite mens rea for instigating a crime, it must be shown that the accused directly or indirectly intended that the crime in question be committed and that the accused intended to provoke or induce the commission of the Crime, or was aware of the substantial likelihood that the Commission of the Crime would be a probable consequence of his acts (Prosecutor –vs-Muvunyi, Prosecutor –vs- linaj etal) Archbold Page-855.
Mind of a person cannot be read and hence mens rea is only to be assessed from the attending facts and circumstances and also from the nature of the actus reas. In this case there are ample evidence to substantiate the allegation that the Appellant had mens rea of aiding and abetting as well for committing the offences by himself.
On the Appellant’s participation in the offences at the dwelling of Hazrat Ali, the Privy Council’s decision in Barendra Kumar Ghosh –v- Emperor, the infamous Post Office Case, is relevant. In that case, a gang went to rob a post office and all except the appellant went inside the Post Office, killed the Post Master, but the appellant stayed out with a gun to look around. The Privy Council opined that he also would be liable of murder, though he was outside and did not shoot. Lord Sumner, in his part of the Councils opinion expressed, “ Even noting, as he stood outside the door, it is to be remembered that in crimes as in other things they also serve who only stand and wait.” (AIR 1925 1PC) (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375] ....View Full Judgment

Meticulous examination–– The Appellate Division opined that the High Court Division, on thorough and meticulous examination and consideration of the evidence on record and also other facts and circumstances rightly acquitted both the accused-respondents by the impugned judgment and order. In the circumstances this criminal petition for leave to appeal be dismissed. .....The State =VS= Asif Khan Riyad & another, [1 LM (AD) 534] ....View Full Judgment

Modesty–– Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. "Modesty" of a women is intimately connect with feminity including her sex. .....Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466] ....View Full Judgment

Modesty–– Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.
"Modesty" of a women is intimately connect with feminity including her sex. .....Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466] ....View Full Judgment

Monoism and Dualism–– In general, two principal theories persist, namely Monoism and Dualism on this point. Judiciary of the countries that follow Monoism subscribe to the view that International law and Municipal Law are concomitant aspects of the one (mono) system of law in general, while the judiciary in those countries that adhere to the Dualism, stick to the norm that international and municipal laws represent two diametrically distinct legal (dual) systems, international law having an intrinsically different character from that of municipal law. (J G Starke, Introduction to International law, page 72). Hans Kelsen termed Dualism as pluralist theory.
Dualists expound the view that rules of international law can not directly and exproprio vigore be applied within the municipal sphere by State courts, i.e in order to be so applied such rules must undergo a process of “specific adoption” by or “specific incorporation” into, Municipal Law, while Monoist believe such rules are auto-incorporated into the municipal system. George Schwarzenberger (A Mannual of International Law, Fourth Edition, Vol-1. Page 40), insists that the two schools hold antithetically opposing views.
Dualist believe International and Municipal Laws are separate and self-contained legal systems-contacts between them are possible but require express or tacit recognition of the rules of the one legal system by the other. (Page 41, Schwargenberger).
Dualism grew in strength in the nineteenth century with the development of the pluralist doctrines of the sovereignty of state will, as propounded by Hegel and those who followed him, with the emergence of the concept of internal legal sovereignty.
Triepel, one of the pivotal advocates of Dualism expressed in his book “Volkerrecht and Laudesrecht” 1899, that there are two fundamental differences between the two systems;
(1) The subject of state law are individuals, while the subjects of International Law are states solely and exclusively.
(2) Their judicial origins are different; the source of state law is the will of the state itself, the source of International Law is the common will of the states (Gemeinville).
Anzilati, another arch exponent of Dualism, however, held that the difference lies in that Municipal law is conditioned by the fundamental norm that state legislation is to be obeyed, while International Law is conditioned by the doctrine of “pacta sunt servanda”, ie agreements between the states are to be respected, and hence two systems are so distinct that no conflict between the two are possible; there may be references from the one to the other, but nothing more (di Diritto Internazionale, 3rd edn 1928, Vol 1 page 43).
Dualists hold high primacy of state law basing the same on the theory of the sovereignty of the state will, while the Monoists assert that all laws belong to a single unity, composed of binding legal rules, whether those rules are obligatory on states, on individuals, or on entities other than states. They believe that there can be no escape from the position that the two systems, because they are both systems of legal rules, are interwoven parts of one legal structure. Dualists’ argument on the Primacy of Municipal Law lies on the claim that states enjoy the very widest liberties and exercise complete sovereignty, while Monoists say States sovereignty is conditioned by the limits International Law imposes.
Since, according to positivists theory, International Law and Municipal Law constitute two strictly separate and structurally different systems, the former can not impinge upon state law unless the latter, a logically different system, allows its constitutional machinery to be used for that purpose. (J G Strake supra, page 76).
In the cases of treaties, rules regarding transformation of treaty into state law, i.e. by legislative approval of the treaty, which is not merely a formal but a substantive requirement, alone vindicates the extension to individuals of the rules laid down in treaties.
While the US courts generally follow Monoist School, British courts draw a distinction between. i) Customary rules of International Law on the one hand and ii) the rules laid down by treaties, on the other.
So far as the treaties are concerned, British courts consistently and without ambiguity follow Dualism i.e, adoption theory, stubbornly in that they do not give effect to any treaty provision which has not been specifically adopted domestically by legislation. So far as rules of Customary International law are concerned, however, the scenario is inflicted with some obscurity engendered by divergent judicial views, finally suggesting that in case of conflict domestic law must prevail. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375] ....View Full Judgment

Natural and competent witness:
Although the P.W.2 is the mother of the deceased but she is a natural and competent witness. Her evidence cannot be discarded only because of her relation with the deceased. …Md. Tasli alias Taslim & anr Vs. State, (Criminal), 8 SCOB [2016] HCD 140 ....View Full Judgment

The prosecution case cannot be shaken only because the eye witnesses belong to the same family because in a case of dacoity the eye witnesses of the occurrence are always the inmates of the house in which the dacoity is committed. …Hemayet Mollah Vs. State, (Criminal), 11 SCOB [2019] HCD 1 ....View Full Judgment

Prosecution to prove time, place and manner:
In the instant case, the rickshaw puller was a vital witness, but he was not produced before the Court by the prosecution. No GD entry was lodged about the alleged threat made by the accused persons. From the evidence of the informant (brother of the deceased), it appears that he had no knowledge about by whom his brother was taken away from the street and murdered him when the victim allegedly at night following 09.02.2001 was going to his uncle’s house at Narindi from Chalar Bazar through a rickshaw. In the following morning, the dead body of the victim was found in Singua Fakir Sahabuddin Girls High School with a scarf around his neck. It is not clear from the evidence as adduced by the prosecution that under what circumstances, wherefrom and when the deceased started for Narindi from Chalar Bazar through a rickshaw and wherefrom he was missing. So, the prosecution failed to prove time, place and manner of occurrence having produced reliable evidence and this case is based on unlinked circumstantial evidence. …The State & ors Vs. Md. Rafiqul Islam & ors, (Criminal), 16 SCOB [2022] HCD 138 ....View Full Judgment

The prosecution case that the victim was made senseless on torture or murdered earlier and thereafter her body was suspended at the place and in the manner to screen the offence is not at all believable because it is not based on rationality:
As per inquest the height between the suspended point and the wooden ceiling was 4½ (four and a half) feet and the victim was 5 (five) feet tall. A rafter (রুয়া) of a tin shed house is one of a series of slopped wooden structural members that extend from the ridge or hip to the wall plate, downslope perimeter or eave and that are designed to support the roof shingles, roof dock and its associated load. As per sketch map, the lower part of the rafters of the occurrence house were slopping and down to the wall plate to fix roof of tin on it which is common in this country. Therefore, in case of self hanging from the rafter, it was possible for the victim to receive a strike/blow on her head from it resulting haematoma and intracranial haemorrhage which has been found in the autopsy. It may be noted here that no other external injury was found on the person of the deceased. If the condemned-prisoner assaulted the victim or strangulated her by force, there could have been some marks of violence or other injuries such as scratch mark on the throat or other parts of the body. It was almost impossible for the condemned-prisoner to take the victim’s body on the entresol of the house through a ladder or stair generally used in such a tin shed house after making her senseless. Therefore, the prosecution case that the victim was made senseless on torture or murdered earlier and thereafter her body was suspended at the place and in the manner to screen the offence is not at all believable. It may further be noted here that the doctor found one of the cause of victim’s death by strangulation and it was antemortem. If she was hanged after her death as stated in the FIR and found by the trial Judge, the ligature mark found around the neck would be of postmortem, it would not in any case be antemortem. …State & anr Vs. Md. Mostafa Sarder & anr, (Criminal), 16 SCOB [2022] HCD 188 ....View Full Judgment

Protrusion of tongue is found in most of the hanging cases but not in strangulation: In the necropsy report (exhibit-4) the doctors found deceased’s tongue protruded due to gas and PW8 doctor deposed ‘জিব্বা আংশিকভাবে বাহির হইয়াছিল’ which supports the inquest report. In that case, as per Reddy’s book of ‘Essentials of Forensic Medicine and Toxicology’, 34th Edition, 2017 (Page 328, serial No. 13 of the table) the death was for hanging but not of strangulation. The tongue position in case of homicidal death by strangulation and in case of suicidal hanging as published in ‘International Journal of Legal Medicine’ further shows that in the survey they have found protrusion of tongue in most of the hanging cases but not in strangulation. …State & anr Vs. Md. Mostafa Sarder & anr, (Criminal), 16 SCOB [2022] HCD 188 ....View Full Judgment

The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent. While awarding punishment, the Court is expected to keep in mind the facts and circumstances of the case, the legislative intent expressed in the statute in determining the appropriate punishment and the impact of the punishment awarded. Before awarding punishment a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. Considering the depraved and shameful manner in which the offence has been committed, the mitigating factor would not outweigh the aggravating factors. In this case, there was no provocation and the manner in which the crime was committed was brutal. It is the legal obligation of the Court to award a punishment that is just and fair by administering justice tempered with such mercy not only as the criminal may justly deserve but also the right of the victim of the crime to have the assailant appropriately punished is protected. It also needs to meet the society’s reasonable expectation from court for appropriate deterrent punishment conforming to the gravity of offence and consistent with the public abhorrence for the heinous offence committed by the convicts. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Performing duty as Judge–– While affirming the award of sentence of death, a person who used to work as Judge may not support the capital sentence but while performing his duty as Judge he is bound by law and fact. He is to decide the issue of awarding the sentence considering the gravity of the offence. While affirming this sentence as a Judge we must take into consideration the relevant laws, facts, evidence and situation of the relevant time. (Para-32); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65] ....View Full Judgment

Plea of alibi–– Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the issues of some newspapers dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971 and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November 1971 to 16 December, 1971. Learned Counsel failed to show any evidence that the communication was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were: : “আজ পূর্ব পাকিস্তানের ইসলাম ছাত্রসংঘের সভাপতির চট্টগ্রামে আগমন ” বার্তা পরিবেশক, “ পাকিস্তান ইসলামী ছাত্র সংঘের পূর্ব পাকিস্তানের শাখার সভাপতি জনাব আলী আহসান মোহাম্মদ মুজাহীদের ৩ দিনের সফরে আজ ঢাকা থেকে আসিয়া পোঁছাবেন। এখানে অবস্থানকালে তিনি দলীয় কর্মীদের এবং রাজনৈতিক নেতৃবৃন্দদের সহিত দেশের বর্তমান পরিস্থিতি সম্পর্কে আলোচনা করবেন এবং সুধী সমাবেশে বক্তৃতা করিবেন বলিয়া এক প্রেস রিলিজে বলা হইয়াছে ” । From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance. It is quite natural that since the President of EP ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and former leader of Chittagong town unit, ICS and local commander of Al-Badar Bahini would go and stay in Chittagong between 19th November, 1971 and 15 December, 1971. So the alibi, plea taken by the appellant does not carry any force. (Paras-197 & 198); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Plea of alibi–– Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the issues of some newspapers dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971 and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November 1971 to 16 December, 1971. Learned Counsel failed to show any evidence that the communication was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were: : “আজ পূর্ব পাকিস্তানের ইসলাম ছাত্রসংঘের সভাপতির চট্টগ্রামে আগমন ” বার্তা পরিবেশক, “ পাকিস্তান ইসলামী ছাত্র সংঘের পূর্ব পাকিস্তানের শাখার সভাপতি জনাব আলী আহসান মোহাম্মদ মুজাহীদের ৩ দিনের সফরে আজ ঢাকা থেকে আসিয়া পোঁছাবেন। এখানে অবস্থানকালে তিনি দলীয় কর্মীদের এবং রাজনৈতিক নেতৃবৃন্দদের সহিত দেশের বর্তমান পরিস্থিতি সম্পর্কে আলোচনা করবেন এবং সুধী সমাবেশে বক্তৃতা করিবেন বলিয়া এক প্রেস রিলিজে বলা হইয়াছে ” ।
From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance. It is quite natural that since the President of EP ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and former leader of Chittagong town unit, ICS and local commander of Al-Badar Bahini would go and stay in Chittagong between 19th November, 1971 and 15 December, 1971. So the alibi, plea taken by the appellant does not carry any force. (Paras-197 & 198); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Police Culture–– The “culture” of a police department reflects what that department believes in as an organization. These beliefs are reflected in the department’s recruiting and selection practices, policies and procedures, training and development, and ultimately, in the actions of its officers in law enforcement situations. Clearly, all police departments have a culture. The key question is whether that culture has been carefully developed or simply allowed to develop without benefit of thought or guidance. There are police agencies, for example, where police use of force is viewed as abnormal. Thus, when it is used, the event receives a great deal of administrative attention. Such a response reflects the culture of that department: the use of force is viewed and responded to as an atypical occurrence. Contrast such a department with one which does not view the use of force as abnormal. And, most importantly, the culture of the department is such that officers come to view the use of force as an acceptable way of resolving conflict. It is clear that the culture of a police department, to a large degree, determines the organization’s effectiveness. That culture determines the way officers view not only their role, but also the people they serve. The key concern is the nature of that culture and whether it reflects a system of beliefs conducive to the nonviolent resolution of conflict. It is also important to recognize that the culture of a police department, once established, is difficult to change. Organizational change within a police agency does not occur in a revolutionary fashion. Rather, it is evolutionary. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] ....View Full Judgment

Presumption of fact:–– A public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law–– It is now settled that a public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law. It is a presumption of fact. If the recovery and seizure are made in accordance with law, it is difficult to disbelieve the evidence of the seizing officer unless inherent infirmities are revealed in course of cross examination. Therefore, the onus lies upon the accused to show that no such arm was recovered from his possession. It is now settled that the non-examination of public witnesses is not a legal ground to disbelieve the prosecution case. This view has been taken on consideration of the present socio-economic condition and on the rise of criminal acts. Normally, the public witnesses are not willing to depose against the terrorist persons for fear of reprisal or other reasons. That will not disprove the recovery of arms. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. The accused respondent shall get the benefit of section 35A of the Code of Criminal Procedure. .....The State =VS= Md. Ali Reza, [5 LM (AD) 247] ....View Full Judgment

Retraction of the confession:
It is well settled proposition of law that the retraction of the confession was wholely immaterial once it was found that it was voluntary as well as true. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52
In this sub-continent it is by now well settled proposition that the maxim ‘falsus in uno, falsus in omnibus [false in one thing, false in everything] is not a sound rule of practice and it should not be applied mechanically. Therefore, it is the duty of the Court, in case where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutiny the rest of his evidence with care and caution. If the remaining evidence is trustworthy and substratum of the prosecution case remains in fact then the court should uphold the prosecution case to the extent it is considered safe and trustworthy. Courts have, however to attempt to separate the chaff from the grain in every case. They can not abandoned this attempt on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot be reasonably carried out. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52
It is the settled proposition of law that in a joint trial where more persons than one are being tried jointly for the same offence, a confession made by any of them affecting himself and any of his co-accused can be taken into consideration by the Court not only against the maker of the confession but also against the co-accused, it may not be an evidence within the strict meaning of the term but it can be used to lend assurance to other evidence on record. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52
It is also well settled in our jurisdiction that the Court of Sessions or the High Court Division has no jurisdiction to interfere with the discretion of the Magistrate in the matter of taking cognizance of any offence irrespective of the facts whether the offence is triable by Court of Session or not. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52
The Appellate Division in the case of Mr. Haripada Biswas Vs. The State and another, reported in 6 BSCR (AD), page-83 also held that Court of Session is precluded from talking cognizance offence as a Court of original jurisdiction. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52
It is by now well settled that cognizance of offence can be taken only once either by the Magistrate or by the Sessions Court. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52
It is well settled that the prosecution is not bound to examine each and every witnesses cited in the charge-sheet. Public prosecution has to take decision in that regard in a fair manner. If the prosecution felt that its case has been well established through the witnesses examined, it cannot be said that non-examination of some persons rendered its version vulnerable. …State & ors Vs. Mufti A. Hannan & ors, (Criminal), 9 SCOB [2017] HCD 52 ....View Full Judgment

The rule as regards sufficiency of circumstantial evidence: The rule as regards sufficiency of circumstantial evidence to be the basis of conviction is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis than that of his guilt. If the circumstances are not proved beyond reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of the guilt of the accused alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. If there is any missing link in the chain of circumstances, the prosecution case is bound to fail. In a case based on circumstantial evidence, before any hypothesis of guilt can be drawn on the basis of circumstances, the legal requirement is that the circumstances themselves have to be proved like any other fact beyond a reasonable doubt. If the witness examined to prove the circumstances are found to be unreliable or their evidence is found to be unacceptable for any other reason the circumstances cannot be said to have been proved and therefore there will be no occasion to make any inference of guilt against the accused. Circumstantial evidence required a high degree of probability, from which a prudent man must consider the fact that the life and liberty of the accused person depend upon his decision. All facts forming the chain of evidence must point conclusively to the guilt of the accused and must not be capable of being explained on any other reasonable hypothesis. Where all the evidence is circumstantial it is necessary that cumulatively its effect should be to exclude the reasonable hypothesis of the innocence of the accused. …The State & ors Vs. Md. Rafiqul Islam & ors, (Criminal), 16 SCOB [2022] HCD 138
It is the established principle that the circumstances to be related upon by the prosecution must be fully established and the chain of evidence furnished by the circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The prosecution should have to prove various links in the chain of evidence to connect the accused and must clearly be established. The complete chain must be such as to rule out a reasonable likelihood of the innocence of the accused. The court is required to satisfy its test to prove a case on circumstantial evidence. Firstly, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. Secondly, those circumstances must be of a definite tendency are unerringly pointing toward the guilt of the accused, and thirdly, the circumstances taken cumulatively should follow a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. …The State & ors Vs. Md. Rafiqul Islam & ors, (Criminal), 16 SCOB [2022] HCD 138
It is a settled law that suspicion or doubt however strong might be, cannot be the basis of conviction. …The State & ors Vs. Md. Rafiqul Islam & ors, (Criminal), 16 SCOB [2022] HCD 138 ....View Full Judgment

Trial Court cannot hold something to be forged unless evidence is adduced to that effect:
In this regard, it is relevant to mention that an opinion of the Ministry of Law, Justice and Parliamentary Affairs was attached to the memo dated 14.08.2005 (exhibit-4) in which opinion was given in favour of mutating the tea estate in the name of the petitioner No. 1. The trial Court held that the said opinion was also forged. Be that as it may, the prosecution never alleged that the opinion in question was forged. It did not produce any evidence to that effect. Therefore, the finding of the trial Court cannot be sustained. …Abdul Hye & anr Vs. The State & anr, (Criminal), 16 SCOB [2022] HCD 178 ....View Full Judgment

There must be accountability for gruesome violations of our penal law:
We insist on accountability for gruesome violations of our penal law because that is how we defend the law and demonstrate our insistence on respect for the law going forward in a progressive legal system. If we fail to ensure accountability across the legal system by ending impunity, we risk undermining the very beneficial effects to which the nascent accountability drive that has built over the past decades. That is the final message we would wish to propel in adjudicating this significant criminal review. ...Md. Zahangir Alam & ors Vs. The State, (Criminal), 18 SCOB [2023] AD 45 ....View Full Judgment

Untrue confession is not tenable in law: From the aforesaid discussions it transpires palpably that the unknown deceased woman was killed by strangulation (k¦vm‡iva), not by drowning (Pzwe‡q) as was disclosed by accused Rasu Kha in his confessional statement. Thus, it is clear that the deceased victim woman was killed not in the manner as was stated by accused Rasu Kha which has miserably exposed the untrue character of his alleged confession rendering the veracity of the same highly questionable as well as untenable in law. …The State Vs. Rasu Kha, (Criminal), 16 SCOB [2022] HCD 161 ....View Full Judgment

Under no circumstances, a judge should abandon his high place of impartial arbiter and assume the role of a prosecutor, however altruistic its motive may be: Having ignored the medico-legal evidence the trial court also presumed that the scar marks and other injuries found on the person of the victim woman are of old nature. But, on the basis of those scar marks including other injuries found on the chest and female organ of the victim woman P.W.11 Dr. Habibur Rahman categorically opined that the victim woman was subjected to rape before her death. In such a scenario, without any tangible materials, there is left no room for the learned Additional Sessions Judge to presume that those injury and bite marks were old in character. It is to be recalled that a judge is considered to be an impartial and neutral arbiter. Under no circumstances, he should abandon his high place of impartial arbiter and assume the role of a prosecutor, however altruistic its motive may be. …The State Vs. Rasu Kha, (Criminal), 16 SCOB [2022] HCD 161 ....View Full Judgment

Value of evidence by child witness:
The prosecution witness Nos. 6 and 7 are daughter and son of the victims and these two witnesses lost their parents in the alleged incident, they are most probable and natural witnesses of this alleged incident of murder and they narrated the vivid picture of what had happened on the alleged date of occurrence and how their parents had died by this unfortunate incident, though they are child witnesses, they witnessed the major part of the incident and having testified about the factum of the occurrence. They have not been shaken in cross examination. Their evidence can be relied upon as they are capable of understanding and replied the questions intelligently, which corroborated with the post mortem report and other evidence on record. …Abdus Salam & ors. Vs. State, (Criminal), 6 SCOB [2016] HCD 82
The evidence of interested, inter-related and partisan witnesses must be closely scrutinized before it is accepted. …Abdus Salam & ors. Vs. State, (Criminal), 6 SCOB [2016] HCD 82
The ocular evidence of prosecution witnesses supported by post mortem report with regard to the injury no. 1 and 2 cannot be disbelieved. Further, the medical evidence is only corroborative in nature, in that view, the ocular evidence of the eye-witnesses, which substantially corroborates the injuries on the person of the deceased Rokshana, must be accepted. …Abdus Salam & ors. Vs. State, (Criminal), 6 SCOB [2016] HCD 82 ....View Full Judgment

Value of circumstantial evidence in a wife killing case:
In a wife killing case, there could be no eye-witness of the occurrence, apart from the inmates of the house who may refuse to tell the truth, the neighbors may not also come forward to depose. The prosecution is, therefore, necessarily to rely on circumstantial evidence. …State & anr Vs Aynal Haque & anr, (Criminal), 7 SCOB [2016] HCD 106 ....View Full Judgment

Victims' Right–– Consideration of victims' rights now stand universally recognised. It is reckoned that the Court in sentencing an offender should not confine itself to the fundamental rights of the accused only, but must also take account of the victims' predicaments and rights. The Appellate Division is of view this concept is of particular importance in the context of the atrocities that were perpetrated during glorious war of liberation, as literally, the entire populace, save a handful of anti liberationists, were victims of those atrocities. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392] ....View Full Judgment

When presence of the witness at the place of occurrence is not challenged, his/her presence is deemed to be admitted: What is remarkable to mention here is that presence of Laboni at the place of occurrence at the relevant time has not been challenged by the defence in her crossexamination. Therefore, it is deemed to have been admitted by the defence that Laboni a child aged about 71⁄2 years was present at the time of occurrence. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

Absence of motive demands deeper forensic search of the evidence:
It is true that proof of motive is not necessary to sustain a conviction but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same has to be considered in order to judge the probabilities. Proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime. In its absence, it demands deeper forensic search of the evidence. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
Competency of a child witness to testify:
A child may be allowed to testify, if the court is satisfied that the child is capable of understanding the question put to him and give rational answers to the Court. Before examining a child as a witness the Court should know his intellectual capacity by putting a few simple and ordinary question to him and should also record a brief proceeding of the inquiry. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
The evidentiary value of extra-judicial confession depends upon the veracity of the witnesses to whom it is made and the circumstances in which it is made:
It is the duty of the Court to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. The evidentiary value of such statement depends upon the veracity of the witnesses to whom it is made and the circumstances in which it came to be made and actual word used by the accused. Such statement must pass the test of reproduction of exact words, the reason or motive of making such statement. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
When accused is entitled to benefit of doubt:
Court’s decision must rest not upon suspicion but upon legal grounds establish by legal testimony. Mere suspicion, however, strong, cannot take the place of proof. It is well settled principle that where on the evidence two possibilities are open, one which goes in favour of prosecution and the other benefits the accused, the accused is entitled to the benefit of doubt. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76 ....View Full Judgment

When to prove motive in a criminal case: In criminal cases, the prosecution is not required to prove the motive behind the crime but if the prosecution assigned the motive behind the crime, it must prove it. …The State & ors Vs. Md. Rafiqul Islam & ors, (Criminal), 16 SCOB [2022] HCD 138 ....View Full Judgment

When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive:
In a criminal case, motive assumes considerable significance. Where there is a clear proof of motive for the offence, that lends additional support to the finding of the Court that the accused is guilty. When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive of the accused for committing the offence. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment