The facts proved by the prosecution lead no inference of guilt of the appellants. The inference of guilt can only be drawn if the proved facts are consistent with the guilt of the appellants and inconsistent wholly with their innocence. The prosecution has totally failed to lead evidence to draw such inference against them. (Per S.K. Sinha, J minority view).
Sree Rabindra Nath Roy @ Rabindra and another -Vs- The State 1 ALR (AD)189

The Evidence Act (I of 1872)
Sections 3 & 30 r/w
Nari-O-Shishu Nirjatan Daman Ain, 2000
Sections 9(2)/30 r/w
The Penal Code, 1860
Section 201/403/411
Confessional statement suffered from meager and lack of independent corroboration. So, on the basis of such confession, conviction of the appellant cannot be sustained in accordance with law– We have discussed the deposition of the star witnesses of this case thoroughly but we find no corroboration of the evidences with each other, rather, we find material contradiction in the testimonies of the P.Ws. with the extra- judicial confession of the co-accused Mosila and in fact there is no extra-judicial confession of the condemned appellant. Therefore, the opinion of the High Court Division does not reflect the real facts and circumstances of the instant case.
The confession made by a co-accused Mosila in the facts and circumstances of the instant case cannot be said that it is corroborated by other evidence and, as such, it cannot be the sole basis of conviction of another co-accused. The Criminal Appeal No.21 of 2015 is allowed. The Appellant Saley Akram alias Polash is acquitted from charges levelled against him. ...Saley Akram alias Polash =VS= The State, (Criminal), 2021(1) [10 LM (AD) 360] ....View Full Judgment

Even an innocent man may feel panicky and to evade arrest and trial may abscond when suspected of grave crime like murder. Abscondence by itself was not conclusive proof of guilt or guilty conscience of an accused but it might lend support to other evidence on record. ...Alamgir Hossain =VS= The State, (Criminal), 2021(1) [10 LM (AD) 466] ....View Full Judgment

Evaluation of evidence of witnesses and conclusion from facts–On the face of direct evidence of four eye–witnesses, the High Court Division acted wrongly in acquitting the principal accused by entertaining doubts in mind as to the place, time and occurrence. State vs Mohammad Kha 42 DLR (AD) 192.

The Evidence Act, 1872
Sections 3 and 30
The Penal Code, 1860
Section 396
Absconding by itself is not conclusive either of guilty or of guilty conscience– The courts below relied upon the fact that the appellant absconded from the area. But mere absconding is not such vital circumstance which can be considered to show that the absconder was having any guilty mind. Even innocent persons may abscond in fear of the police or on account of avoiding the humiliation of being involved falsely in the incident. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstance of each case. Absconding by itself is not conclusive either of guilty or of guilty conscience. In a case which depends wholly upon circumstances, the same must be of such a nature as to capable of excluding all hypothesis of guilt of the accused. In the case in hand, the PWs 2 and 3 did not say anything connecting the appellant with occurrence. Except his abscondence Appellate Division does not find anything connecting the appellant with the offence charged but abscondence is not conclusive proof of guilt. In consequence of examination of the evidence adduced by the prosecution, this Division is of the view that despite the confessional statement of co-accused and abscondence of the accused appellant after the occurrence it would be unsafe to convict the appellant. Accordingly the appeal is allowed. .....Sumon =VS= State, (Criminal), 2022(2) [13 LM (AD) 342] ....View Full Judgment

The evidence of interested, inter-related and partisan witness
Their evidence must be closely scrutinized before it is accepted. The correct principle in respect of the evidence of persons falling in the category of interested, interrelated and partisan witnesses is that it must be closely and critically scrutinized. It should not be accepted on its face value. Since interested witnesses may have a motive of falsely implicating the accused persons, their evidence has to cross the hurdle of critical appreciation. As their evidence cannot be thrown out mechanically because of their interestedness, so their evidence cannot be accepted mechanically without a critical examination.
The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than a rule of law.
The High Court was obviously wrong in holding that no corroboration was necessary in this case and failed to scrutinise the evidence of interested eye-witnesses with infirmities in their evidence. It is unsafe to rely on such evidence for sustaining a conviction on a capital charge without corroboration, either circumstantial or ocular. (Per. Mustafa Kamal, J delivering the majority judgment)
There is no rule of law that if independent witnesses are not available in a case, a conviction cannot be sustained on the evidence of eye witnesses who are relations and partisan witnesses. If found to be trustworthy, conviction can be based on the evidence of such interested witnesses.
When both the parties are equally powerful and divided in two hostile groups, at the present day no body likes to involve himself in a group rivalry between two strong factions of people. In such a case, it is indeed difficult for the prosecution to examine independent witnesses as the villagers would be reluctant to side with any of the parties who had longstanding enmity and rivalry between them. Furthermore, the witnesses as well as the accused being interrelated amongst themselves and enemically disposed of towards one another, it was difficult for the prosecution to examine independent witnesses. Moreover, it does not appear from the record that any independent witness who had seen the occurrence & was withheld by the prosecution to find fault with it. (Per Latifur Rahman,.J-delivering dissenting judgment) Nowabul Alam and others Vs The State, 15BLD(AD)54

Mere placing no reliance upon confessional statement of the accused and non­-examination of the Magistrate who held TI Parade are no grounds for acquittal where the order of conviction and sentence is based on other sufficient and reliable legal evidence on record. Abdul Hashem (Md) @ Bachchu Fakir and others vs State 52 DLR (AD) 117.

Calling and taking away of the victim by the appellant Billal and co-convict Saiful from his residence half an hour before his murder, recovery of the body of the victim, Billal's offer of love and threat to the PW 2 Mokseda, and abscondence of Billal immediately after the occurrence are circumstances to lead to the conclusion that he abetted the murder. Billal vs State 52 DLR (AD) 143.

It is unfortunate that for not seizing the lungi of PW I the positive testimony of this witness and other witnesses who spoke about the presence of PW I in the occurrence have been discarded.
"Evidence false in part is false in entirety" – As a matter of fact this maxim is not supported by any authority and has got no relevance in the present time. Mahmudul Islam alias Ratan vs State 53 DLR (AD) 1.

When a wife met with an unnatural death while in custody of the husband and also while in his house the husband is to explain under what circumstance the wife met with her death. Ilias Hussain (Md) vs State 54 DLR (AD) 78.

The accused can be convicted despite the seizure list witnesses denied supporting the prosecution case– 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 trial Court as well as the High Court Division successfully assessed that the prosecution had been able to prove beyond reasonable doubt that 250 bottles of Phensedyl amounting to 25 liters containing Chlorpheniramine Maleate and codeine phosphate have been recovered and seized from the possession of the accused-respondent. .....The State =VS= Badal Kumar Paul, (Criminal), 2022(1) [12 LM (AD) 423] ....View Full Judgment

Admission— Value of admission made in the plaint of a previous suit which was withdrawn — In our law of evidence an admission made by a party in a plaint is admissible as evidence against him in other actions as well but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue.
Abdul Kader Khan being dead his heirs All Akbar Khan and others Vs. Basek Khan being dead his heirs Shaju Bia and others; 8BLD(AD)22

By judicial pronouncements it is now settled that if the circumstantial evidence is far from satisfactory and it sufferes from a number of infirmity, the court is left with no option other than to acquit the accused. If two infermities are possible from the circumstantial evidence, one pointing to the guilt of the accused and the other also plausible, that the commission of the crime was the act of some one else, the circumstantial evidence would not warrant conviction of the accused. (Per S.K. Sinha, J minority view).
Sree Rabindra Nath Roy @ Rabindra and another -Vs- The State 1 ALR (AD)189

The proof of motive helps the Court in coming to a correct conclusion when there is no eye witness of the occurrence. Since P.W.1 claimed that the appellant was not previously known to him and, after his arrest, he came to know him for the first time, the motive of killing as stated by the appellant in confessional statement was not true. We do not find any other motive of killing the victim by the appellant in the testimonies of the prosecution witnesses. It is true that the failure to establish the motive for the crime does not throw over-board the entire prosecution case but it casts a duty on the Court to scrutinize other evidence with greater care since motive moves a man to do a particular act and the same is relevant fact behind a crime. ...Humayun Kabir(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 619] ....View Full Judgment

Murder charge resting on circumstantial evidence—Accused’s motive in calling out and accompanying the victim boy—There is absolutely no material on record to show that anybody had at any stage expressed any suspicion that the accused might have had any evil motive in calling out the victim. All that the father said at the trial was that the motive for murder was to give him pain. This is no motive. He did not say why the young accused would cause him pain, There is also no material to suggest even’ that there might have been some immediate and on—the—spot reason for the accused to cause violence to the victim or that they were acting at some others’ behest—Per ATM Afzal J with whom Shahabuddin Ahined CJ and MH Rahman J concurred. State Vs. Khasru @ Syed Mostafa Hossain 43 DLR (AD) 182.

Motive (by majority) : Evidence of motive, when necessary—there is no reference at all in the dying declaration to any fact or circumstances for which it can be even remotely inferred that there was any reason whatever for which the appellant was likely to make an attempt on the life of the deceased nor is there any reason for the deceased to suspect the appellant as his possible killer. In a case of this nature based only upon the dying declaration there should have been some evidence of motive although motive may not be proved in case of direct evidence or as an ingredient of the offence. Sk. Shamsur Rahman Vs. State 42 DLR (AD) 200.

Prosecution for rape— Question of corroboration. It has long been a rule of practice for insisting on corroboration of the statement of the prosecutrix. If the Judge feels that without corroboration in a particular case the conviction can be sustained then he should give indication that he had the rule of caution in his mind and then should proceed to give reasons for considering it unnecessary to require corroboration and for considering that it was safe to convict the accused without corroboration. Saidur Rahman Neuton Vs. State 45 DLR (AD) 66.

Penal Code, 1860
Sections 120B and 302/109/34
Evidence Act, 1872
Section 8
Criminal conspiracy–– The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms there of. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences.
In the case of Major Md Bazlul Huda (Artillery) and others-Vs-State, 62 DLR (AD) 175, it has held that “In order to constitute the offence of conspiracy, there must first be a combining together of two or more persons in the conspiracy; secondly, an act or illegal omission must take place in pursuance of that conspiracy in order to the doing of that thing. It is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Therefore, I find that each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The common intention of the conspirators is then is to work for the furtherance of the common design.” .....Younus Ali @ Kawser Ahmed =VS= The State, (Criminal), 2024(1) [16 LM (AD) 561] ....View Full Judgment

The Evidence Act, 1872
Section 8
The Penal Code, 1860
Section 302
The Code of Criminal Procedure, 1898
Section 35A
Sentence commuted from death to imprisonment for life–– On the day of occurrence the appellant absconded and his trial was held and conviction and sentence was confirmed by the High Court Division while he was still on the run. When he was arrested, by then long eighteen years had passed. This is a relevant fact under section 8 of the Evidence Act unerringly pointing to the guilt of the appellant. Appellate Division is of the view that the sentence of the appellant may be commuted from death to imprisonment for life. .....Anowar Hossain(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 316] ....View Full Judgment

Code of Criminal Procedure
Section 164 and
Section 8 of the Evidence Act:
It is true that there is no eye witness in the instant case, but the inculpatory, true, and voluntary confessional statements of two accused, and the circumstances particularly long absconsion by Shukur and Sentu are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellants Shukur, Sentu, Mamun and Azanur in the alleged rape and murder thereof. …Md. Shukur Ali and others Vs. The State, (Criminal), 16 SCOB [2022] AD 62 ....View Full Judgment

Motive is a relevant fact behind a crime:
The proof of motive helps the Court in coming to a correct conclusion when there is no eyewitness of the occurrence. ...It is true that the failure to establish the motive for the crime does not throw over-board the entire prosecution case but it casts a duty on the Court to scrutinize other evidence with greater care since motive moves a man to do a particular act and the same is relevant fact behind a crime. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76 ....View Full Judgment

The idea of holding T.I. parade is to test the veracity of the witness on the question of his capability to identify an unknown person whom he has seen only once:
The idea of holding T.I. parade under Section 9 of the evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court. It is necessary when the witnesses admitted that the accused was not known the witnesses before happening of the incident seen by them. When the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former’s arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76 ....View Full Judgment

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

The Evidence Act, 1872
Section 10 and
The Penal Code, 1860
Sections 120B and 302/34
Well settled principle that the confession of a co-accused cannot be used against another co-accused until strongly corroborated by other evidence– The length of period spent by a convict in the condemned cell as an extenuating ground sufficient for commutation of sentence of death– The prosecution tried to prove the above mentioned conduct of convict-appellants Sirajul Islam, Sohel and Rajib that lead us to conclude that the convict Sirajul Islam, Sohel and Rajib with Zamir conspired to kill the deceased Aktar Hossain and all of his family members. In case of conspiracy the conspirators conspire among themselves, there remains no eye witness. They make design and prepare plan to execute the same and in furtherance of their conspiracy and common intention execute the plan. In the instant case, the motive, behavior of the convict-appellants are very much clear to execute the alleged killing in a planned way and as per Section 10 of the Evidence Act, 1872 the convict-appellants Sirajul Islam, Sohel and Rajib are guilty for committing the occurrence. ...Zamir =VS= The State, (Criminal), 2021(1) [10 LM (AD) 647] ....View Full Judgment

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

Fixing the period of conspiracy is important as the provisions of section 10 of the Act would apply only during the existence of the conspiracy. (Per SK Sinha J). Major Baziul Huda vs State 62 DLR (AD) 1.

Common Intention—When a criminal conspiracy for committing murder has been established there is no need to award a conviction in the aid of section 34 for, in an offence of criminal conspiracy anythirjg said, done or written in reference to their common intention after the intention was entertained is relevant against all the accused. When specific acts done by each of the accused have been established showing their common intention they are admissible against each and every other accused. Though an act or action of one accused cannot be used as evidence against other accused but an exception has been carved out in section 10 of the Evidence Act in case of criminal conspiracy. If there is reasonable ground to believe that two or more persons have conspired together in the light of the language used in 120A of the Penal Code, the evidence of acts done by one of the accused. can be used against the other. Major Baziul Huda vs State 62 DLR (AD) 1.

Penal Code, 1860
Section 34:
Evidence Act, 1872
Section 10:
The ‘common intention’ which is a constituent of proving an offence of criminal conspiracy is different from the one ‘common intention’ used in section 34 of the Penal Code. The expression ‘common intention’ used in section 10 of the Evidence Act signifies a common intention existing at the time when the thing was said, done or written by one of the conspirators but the ‘common intention’ referred to in section 34 is doing of separate acts similar or diverse, by several persons; if all are done in furtherance of a common intention. (Surendra Kumar Sinha, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1 ....View Full Judgment

Acquittal on proof of Alibi-When satisfactorily established by evidence such as attendance Register that the accused was on duty in his office at the relevant time of the occurrence, the accused may be acquitted on such plea of alibi. Nurul Islam Vs. Abdul Malek and another, 8 MLR (2003) (AD) 37.

The Tribunal has no basic conception of law on the point of admissibility of a statement made by a witness before a police officer which does not fall within the terms of section 32 of the Evidence Act. It cannot be held relevant under section 11 of the Evidence Act. If the maker of a statement is examined as a witness, ordinarily his previous statement is admissible merely to corroborate or contradict the testimony in Court but it cannot be taken as substantive evidence. The learned Judge illegally drew adverse inference against the defence observing that the appellants failed to establish by cross-examining her that the statement was false. (Per S.K.Sinha,J minority view).
Sree Rabindra Nath Roy @ Rabindra and another -Vs- The State 1 ALR (AD) 189

The law is now settled that a Judgment whether inter parties or not may be conclusive evidence against all persons of its existence, date and legal effect, as distinguished from the accuracy of the decision rendered. The former judgments and decrees were not themselves a transaction or an instance within the meaning of section 13 of the Evidence Act, but the suit in which they were made was a transaction or an instance in which the defendant's right of possession was claimed and recognised and that to establish that such transaction or instance took place the previous judgment was the best evidence. Robert Pinaru vs Moulana Habibur Rahman and others 8 BLC (AD) 115.

Existence of any right or custom, such as any "transaction" creating any right–Relevancy of–Section 13 provides that where the question is as to the existence of any right or custom, certain facts are relevant, such as any 'transaction' by which right or custom in question was created, claimed, modified, recognised, asserted or denied, and 'particular instances' in which the right or custom was claimed, recognised or asserted. Hazi Waziullah vs Additional Deputy Commissioner, Noakhali 41 DLR (AD) 97.

Evidentiary value to the previous judgment in Writ Petition No. 682of1980 as to the status of the petitioner in view of the provisions of section 43 read with section 13 of the Evidence Act not accorded–Effect of. Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.

Previous Judgment­ - Admissibility of–Not binding upon the respondent No. 4 and the Government as the new issues raised in a review case had no occasion to be considered in the previous judgment. Dr Syed Matiur Rob vs Bangladesh 42 DLR (AD) 126.

An admission of a person is admissible in evidence as against him, though it can be explained away by the maker thereof or the person against whom it is sought to be proved. According to me, the same principle applies to an admission in a signed pleading, or in affidavit, or in any sworn deposition given by a party in a prior litigation, though it is capable of rebuttal. The assertion of a right, whether in a pleadings or other statements, is relevant under section 13 of the Evidence Act and is, therefore, legally admissible in evidence. An admission contained in a plaint or written statement or an affidavit or any sworn deposition given by a party in a prior litigation will be regarded as an admission in a subsequent action, though it is capable of rebuttal. …Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul, (Civil), 2020 (1) [8 LM (AD) 164] ....View Full Judgment

Admission— What the expression means—
Admission is a strong evidence against the maker but he can adduce evidence to show that in fact he did not make any such admission and this was result of bonafide mistake of fact. Begum Khodeza Akhter Vs. Hajera Khatun 37 DLR (AD) 212.

Admission made in plaint is admissible in evidence—
Admission made in plaint is admissible in other suit but this is not a conclusive evidence and the maker can well establish the contrary to show that it is not true. A.K. Khan vs. Basek Khan 40 DLR (AD) 114.

'Admission' is no doubt a strong evidence against its maker but it is also open to him to adduce evidence to show that it is not in fact an 'admission' but is the result of bonafide mistake of fact. Begum Khodeza Akhter vs Hajera Khatun 37 DLR (AD) 212.

Admission–Use of–Whether an admission made by a party in plaint, signed and verified by him, may be used as evidence against him in other suits–Whether it is also open to the party to show that the admission is to be regarded as conclusive evidence and also to show that it is untrue. AK Khan vs Basek Khan 40 DLR (AD) 114.

Under the English Law a statement in a pleading sworn, or otherwise adopted by a party, is admissible against him in other actions. In our law of evidence an admission made by a party in a plaint is admissible in evidence against him but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. AK Khan vs Basek Khan 40 DLR (AD) 114.

Admission–Since the relationship of landlord and tenant between the plaintiff and the defendant was never a fact in issue, the application of the defendant dated 12–1–66 (unconnected with the relationship) and his deposition in a different proceeding could not be admitted into evidence as an admission suggesting an inference as to any fact in issue. The alleged admissions were not set out in the plaint. Admission can be explained and the maker of the same must have an opportunity to explain them. Abdur Rabban vs Aminul Hoque Sowdagar 43 DLR (AD) 19.

Per Mohammad Gholam Rabbani ] : The charge was not admitted by the respondent rather he denied it as baseless in the reply stating the whole truth giving the reason for victimising him by the complainant which cannot be an admission to the charge, but it was a part of his defence and it was not considered as such by the Enquiry Officer. Even if it is conceded that the statements made by the respondent amounted to admission of misconduct, he could not be removed from service for the alleged admission without holding a formal enquiry in accordance with rules. Admittedly, instead of the Registrar, the Chief Justice himself proposed for major punishment to both the accused and accordingly, second show cause notice was issued but the Chief Justice was not given to consider the replies and the Registrar imposed major punishment on the respondent and in fact acquitted the other and such action must be held to be malafide, biased and illegal. Registrar, Supreme Court of Bangladesh vs Md Shafiuddin and another 6 BLC (AD) 141.

Admission or concession by lawyer when not binding on his client–s– It does not appear from the judgment of the appellate Court below that the respondent's lawyer placed reasoning appearing in the trial Court judgment before the lower appellate Court. Under such a circumstance Court is not prepared to accept lawyer's concession as an admission of facts of abandonment of an issue. Sajia Khatun vs Amena Khatun 43 DLR (AD) 206.

Admission by persons expressly referred to by party to suit and proof of admissions, against persons making them, and by or on their behalf.
The High Court Division held that the certified copy of this application which is an attested document from both the parties has been marked as Exhibit-‘D’. Pursuant to that application the concerned court vide his order dated 01.04.1968 passed an order and in compliance of that order the process-server delivered possession. All these papers have been duly proved and after admission from the side of the plaintiff those have been exhibited. In this context; it is required to be mentioned that the plaintiff to the suit is an Advocate’s Mohorar who supposed to be a well acquainted person having knowledge about auction and its subsequent proceedings upto the final order passed by the executing court. The learned courts below after proper assessment of the relevant evidence on records and appreciation of law arrived at a concurrent decision that the claim of the plaintiff-petitioner is barred, inasmuch as he is stopped by law from claiming the suit property as prayed for in the schedule of the plaint from his side. Section 20 and 21 of the Evidence Act, 1872 provides admission by persons expressly referred to by party to suit and proof of admissions, against persons making them, and by or on their behalf. Sontosh Kumar Chowdhury and others-Vs.-Pranab Kumar Chakraborty and others(Civil) 2019 ALR (HCD) Online 401 ....View Full Judgment

Admission between the parties made in another proceeding — Such admission whether binds a party in a subsequent proceeding - Respondent’s admission that he was a tenant under the appellant estops him from denying appellant’s title in the suit premises — Admission by way of statements made in documents certified to be true copies by an authorised officer of the Government are admissible in evidence. Hajee Abdus Sattar Vs. Mahiuddin and others; 6BLD (AD) 224

The legal position of a letter written by the appellant with the words "without prejudice" is to be understood with reference to section 23 of the Evidence Act which reads as follows:
"In civil cases no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under the circumstances from which the court can infer that the parties agreed together that evidence of it should not be given." Messrs Haque Brothers (Carbide) Ltd vs Bangladesh Shilpa Rin Sangstha 37 DLR (AD) 54.

When a letter is written mentioning the expression 'without prejudice,' it means the terms made in it may be accepted by the person written to. If not accepted, the matter ends there. Exception when a letter cannot be referred to for collateral matters. Messrs Haque Brother (Carbide) Ltd vs Bangladesh Shilpa Rin Sangstha 37 DLR (AD) 54.

Admission made by a party in a letter written “without prejudice” — Admissibility of — The letter written by the appellant cannot be used to determine the extent of its liability, but in so far as it shows the relationship between the appellant and the respondent No. I as debtor and creditor and that they tried to settle the account, the letter can be taken into consideration. M/s. Haque Brothers (Carbide) Ltd. Vs. Bangladesh Shilpa Rin Sangstha and others; 5BLD (AD) 102

It is only when the statement of the accused can be read as a plenary admission of guilt in clear terms that it can be taken as a confession of the crime. State Vs. M M Rafiqul Hyder 45 DLR (AD) 13.

Confessional statement— There being no corroboration on any material particular of the confessional statement, it is unsafe to maintain conviction of the respondents under sections 302/34. Penal Code thereon, though respondent Abid Ali implicated himself in the statement to be an offender. State Vs. Shafique 43 DLR (AD) 203.

It is of course true that the extra judicial confession made by the appellant before the witnesses in presence of the police is not admissible. But the fact remains that the chen/dao was recovered by the police from ceiling of the shop of the appellant at his instance in presence of the witnesses. Such recovery is admissible under section 27 of the Evidence Act. [Syed Mahmud Hossain, CJ (Minority view)] …Md. Abdul Awal Khan Vs. The State, (Criminal), 16 SCOB [2022] AD 22 ....View Full Judgment

The learned trial Judge appears to have taken into consideration the alleged admission by the appellant in presence of P.Ws 2,3,4 and 5 but failed to appreciate that if there was such an admission, it was made when the appellant was accompanied by the police and hence inadmissible under section 24 of the Evidence Act. The conviction and sentence were thus not based on legal evidence. [Muhammad Imman Ali, J (Majority view)] …Md. Abdul Awal Khan Vs. The State, (Criminal), 16 SCOB [2022] AD 22 ....View Full Judgment

The Evidence Act, 1872
Section 24
The Penal Code
Section 302
When the victim is killed while in the custody of her husband then the burden is upon the husband to explain how his wife met her death–– With regard to the victim’s death while in the custody of her husband, the evidence on record shows that the appellant used to stay at his shop. There was no evidence that on that night he was sleeping in his own house. Hence, there is sufficient explanation from the appellant that he was not present in the house when his wife was attacked, and provision of section 106 of the Evidence Act are not applicable in the facts of the instant case. ––Appellate Division finds that the doubt created by the evidence on record indicate the innocence of the convict appellant. The judgement of conviction and sentence awarded by the trial Court is not based on a proper assessment of the evidence on record. There was no legal evidence on which to base the conviction of the appellant. The High Court Division fell into the same error as the trial Court. ––The appeal is allowed and the jail petition is disposed by majority decision. (Majority view: Per Mr. Justice Muhammad Imman Ali) .....Abdul Awal Khan(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 401] ....View Full Judgment

The learned trial Judge appears to have taken into consideration the alleged admission by the appellant in presence of P.Ws 2,3,4 and 5 but failed to appreciate that if there was such an admission, it was made when the appellant was accompanied by the police and hence inadmissible under section 24 of the Evidence Act. The conviction and sentence were thus not based on legal evidence. (Majority view: Per Mr. Justice Muhammad Imman Ali) .....Abdul Awal Khan(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 401] ....View Full Judgment

The Penal Code, 1860
Sections 302/34
The Evidence Act
Section 27
Respond to the society’s cry for justice against the criminal– The savage nature of the crime has shocked our judicial conscious; the murder was cold-blooded and brutal without any provocation. There are no extenuating or mitigating circumstances. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”. On these facts declining to confirm the death sentence will, in our view, stultify the course of justice. Therefore, there is no justification to commute the death penalty to imprisonment for life. ...Khorshed(Md.) =VS= The State, [10 LM (AD) 458] ....View Full Judgment

The Arms Act, 1878
Section 19A r/w
Evidence Act [I of 1872]
Section 27
Whether on the admitted facts the High Court Division is justified in maintaining the appellant’s conviction under section 19A of the Arms Act– The Appellate Division held that whatever allegations made in the FIR and the statements made by P.Ws.1-4 are the result of the investigation and therefore, those statements are hit by section 162 of the Code. The appellant was not an accused on 13.12.2004 and the recovery of fire arm as per his statement is a doubtful story to believe on. After recovery of the fire arm, the police officer in course of investigation found that the appellant planted the fire arm in the hayrick of Abdul Hoque. This statement is not admissible under section 27 of the Evidence Act. The High Court Division has totally misconstrued section 27 of the Evidence Act and illegally held that the recovery of the fire arm was on the basis of the statement made by the appellant with a sketch map ‘pointing to an arm which is sufficient to have a knowledge, possession and control by himself and nobody else, even not Abdul Hoque’. This conclusion arrived at is based on misconception of law. There is no legal evidence to prove the recovery of he firearm from the exclusive control or knowledge of the appellant. .....Md. Tofajjal Hussain =VS= The State, [1 LM (AD) 483] ....View Full Judgment

Since statement under section 27 of the Evidence Act is alleged to be frequently misused by the police, the courts are required to be vigilant about its application:
Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be allowed to be given in evidence. Since statement under section 27 of the Evidence Act is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76 ....View Full Judgment

The recovery of other wearing apparels and toiletries of the deceased at the showing of the condemned- prisoner while in police custody leads to the irresistible conclusion that the condemned- prisoner had the most intimate relationship with the deceased and that wearing apparels and toiletries of the deceased must have been either in the possession of the condemned prisoner or within his knowledge as to where those articles were. There recoveries are admissible in evidence under Section 27 of the Evidence Act. Khalil Miah Vs. The State 7 BLT (AD)-245

The Evidence Act, 1872
Section 27
Nari-0-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
Section 10(1)
The accused is entitled to benefit of doubt not as a matter of grace but as of right– Appellate Division finds that the concept of benefit of doubt is deep-rooted in every legal system for giving benefit to the accused. It is not necessary that there should be many circumstances creating doubt. If there is a single circumstance which creates reasonable doubt for a prudent mind about the guilt of accused, then the accused would be entitled to the benefit of such doubt not as a matter of grace but as a matter of right. The Judges of the High Court Division as well as the trial Court have not considered the material discrepancies, contradictions and omissions of witnesses for which an error has crept in the trial Court’s judgment resulting in the conviction of the appellants. On consideration of the evidence, the appellants are held to be entitled to the benefit of doubt and are liable to be acquitted. .....Ramjan Ali(Md.) =VS= The State, (Criminal), 2022(1) [12 LM (AD) 545] ....View Full Judgment

The recovery of other wearing apparels and toiletries of the deceased at the showing of the condemned- prisoner while in police custody leads to the irresistible conclusion that the condemned- prisoner had the most intimate relationship with the deceased and that wearing apparels and toiletries of the deceased must have been either in the possession of the condemned- prisoner or within his knowledge as to where those articles were. These recoveries are admissible in evidence under section 27 of the Evidence Act. Khalil Mia vs State 4 BLC (AD) 223.

Section 30 of the Evidence Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged murder or in the abetment of the same except as to some evidence about the motive of the offence, the High Court Division was wrong in treating the confessional statement of the co-accused as substantive evidence and treating the evidence of P.Ws. 4 and 7 as corroboration thereof. Ustar Ali Vs. The State, 18BLD (AD)43

Nari-O-Shishu Nirjaton Daman Ain, 2000
Sections 9(3)/30 and
The Evidence Act
Section 30
Instant offence had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. The Court will be failing in its duty if appropriate punishment is not awarded for an offence which had been committed not only against the unfortunate victims but also against the society to which the criminals and victims belong. It is the duty of the Court to respond to the cry of the society and to settle what would be a deterrent punishment for an abominable punishment. Two widows, having had no male member of their families and had been maintaining their livelihood by selling sarees in different villages, were somehow brought in a field in the late night and the convicts not only raped them but also killed them mercilessly. Both the victims died with a painful death. Considering the nature of crimes, we do not find any mitigating circumstances to commute the sentence. ...Aziz @ Azizul @ Azid =VS= The State, [10 LM (AD) 697] ....View Full Judgment

A voluntary and true confession made by an accused can be taken into consideration against a co-accused by virtue of section 30 of the Evidence Act but as a matter of prudence and practice the Court should not act upon it to sustain a conviction of the coaccused without full and strong corroboration in material particulars both as to the crime and as to his connection with the crime [Ram Prakash V. State of Punjab (1959 SCR 1219)]. “As is evident from a perusal of section 30 extracted above, a confessional statement can be used even against a co accused. For such admissibility it is imperative, that the person making the confession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, such a confessional statement is relevant even against the others implicated. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1 ....View Full Judgment

Confession by co—accused— Its worth in the absence of corroboration—A confession made by a co—accused in a joint trial for the same offence affecting himself and others may be taken into consideration. The confession, of such an accused may lend assurance to the other evidence on record. Babor Ali Molla and others Vs. State 44 DLR (AD) 10

Evidence adduced by prosecution—For appreciation of its quality and worth—Broad facts of the case recounted. Appreciation of oral evidence—so called confession by a co—accused (appellant Daud) relied upon by the trial Court—that confession is no confession in the eye of law as it was a testimony against the other accused without the maker having involved himself. Ibrahim Mollah Vs. State 40 DLR (AD) 216.

If the principal evidence in the case namely direct oral evidence does not qualify to be trustworthy the alleged confession is of no avail to the prosecution for sustaining the order of conviction. Ibrahim Mollah Vs. State 40 DLR (AD) 216.

Examination and analysis of oral evidence—High Court Division failed to give due and proper consideration to the well established principles governing appreciation of evidence in a case where there is possibility of false implication because, of existing dispute and enmity between the parties—Where the witnesses are related and partisan and have a strong motive to depose falsely, their evidence must be put to the strictest scrutiny having regard to the attendant circumstances. Ibrahim Mollah Vs. State 40 DLR (AD) 216.

Neither the trial Cowl nor the High Court Division scanned the evidence in an analytical manner. After all these infirmities on the side of the prosecution the trial court and the High Court Division should have entertained reasonable doubt as to the alleged participation of the appellants in the throwing of bombs. Ibrahim Mollah Vs. State 40 DLR (AD) 216.

The extra—judicial confession made in Police Station in presence of constables who had arrested the confessing accused and the police officer who had investigated the case is inadmissible in evidence. Mofazzal Hossain Mollah & ors. Vs. State 45 DLR (AD) 175.

Where trust worthy evidence establishing all links of circumstantial evidence is available the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration–– In a case of conspiracy in which only circumstantial evidence is forthcoming and when the board features are proved by trust-worthy evidence connecting all the links of a complete chain then on the isolated events the confessional statements of the co-accused lending assurance to the conclusions of the Court can be considered as relevant material and would not vitiate proceedings [Babu rao Bajirao Patil-Vs-State of Maharashtra [3 SCC (1971) 432]. Where trust worthy evidence establishing all links of circumstantial evidence is available the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration [Mohd. Khalid-Vs-State of W. B., 7 SCC (2002) page 334]. ––In the present case in hand, 7[seven] innocent persons died. There is no explanation as to why they were killed. A citizen of a civilised nation can never contemplate such a cowardice contemptuous bomb attack. This attack is against the established social and political order of a democratic state for which it deserves exemplary punishment. .....Younus Ali @ Kawser Ahmed =VS= The State, (Criminal), 2024(1) [16 LM (AD) 561] ....View Full Judgment

The Code of Criminal Procedure, 1898
Section 164
The Evidence Act, 1872
Section 30
Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act; but the section does not say that confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. There Lordships think that the view which has pre¬vailed in most Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of conviction, is correct. ...Alamgir Hossain =VS= The State, (Criminal), 2021(1) [10 LM (AD) 466] ....View Full Judgment

The Evidence Act, 1872
Section 30
The Penal Code, 1860
Section 302/34
A voluntary and true confession made by an accused can be taken into consideration against a co-accused by virtue of section 30 of the Evidence Act–– A voluntary and true confession made by an accused can be taken into consideration against a co-accused by virtue of section 30 of the Evidence Act but as a matter of prudence and practice the Court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with the crime. Having regard to the evidence available on record, Appellate Division is of the opinion that this is not a case where the prosecution case was entirely based on the confessional statements of the co-accused for connecting accused Mohiuddin. Rather we find that the prosecution case was based on other evidence to establish the circumstances pointing towards the guilt of the accused Mohiuddin. In the light of evidence (both oral and documentary) on time, place and manner of occurrence provide a coherent links connecting the appellant Mohiuddin with the occurrence. .....Dr. Miah Md. Mohiuddin =VS= The State, (Criminal), 2022(2) [13 LM (AD) 363] ....View Full Judgment

Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(3)/30 r/w
The Evidence Act, 1872
Section 30
The Penal Code, 1860
Sections 302/ 34
A confession made by a co-accused in a joint trial for the same offence affecting himself and the others may be taken into consideration to lend any additional assurance to the substantive evidence on record.–– In this particular case there is no corroborative evidence to lend support of the confessional statement of condemned prisoner-Tariqul in finding the guilt of two other condemned prisoners, namely Md. Ismail Hossain Babu and Sonaruddi. ––Thus, it is our considered view that the prosecution has failed to prove the charge against condemned prisoners-Ismail Hossain Babu and Sonaruddi beyond doubt. ––However, considering the fact that the condemned prisoner-Tariqul Islam alias Bhota is in death cell about 14 years and by this time he has been experiencing the agony of death in his death cell, Appellate Division is of the view that, justice will be best served if the sentence of death is commuted to imprisonment for life. .....Ismail Hossain Babu(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 323] ....View Full Judgment

We hold that confessional statement of a co-accused can be used against others nonconfessing accused if there is corroboration of that statement by other direct or circumstantial evidence. In the instant case, the makers of the confessional statements vividly have stated the role played by other co-accused in the rape incident and murder of the deceased which is also supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses particularly the deposition of P.Ws.1,2,3,10,11,12,14 and 18 regarding the marks of injury on the body of the deceased. Every case should be considered in the facts and circumstances of that particular case. In light of the facts and circumstances of the present case, we are of the view that the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial. (Emphasis added). Thus, the accused namely Shukur and Sentu are equally liable like Azanur and Mamun for murdering the deceased after committing rape. …Md. Shukur Ali and others Vs. The State, (Criminal), 16 SCOB [2022] AD 62 ....View Full Judgment

The Evidence Act, 1872
Section 30
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(3)
Confession–– In the case of State Vs. Abdul Kader @ Mobile Kader, 67 DLR(AD)6 this Division in interpreting section 30 of the Evidence Act has held that when more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other of such persons as well as against the person who makes such confession. .....Milon @ Md. Milon =VS= The State, (Criminal), 2023(1) [14 LM (AD) 282] ....View Full Judgment

Dying declaration–
A conviction can be based upon a dying declaration if it is found true, voluntary and free from being tutored or influenced by others.
The persons who record the dying declaration must take care in recording the statement of the declarant/victim. A dying declaration is recorded when the attending doctor suspects that there is little chance of survival of the victim and intimates the near ones about his condition or the investigating officer so that the investigation officer can arrange for recording the dying declaration. If the dying man is capable of making a statement, any person may record his statement in the language of the maker. There is no hard and first rule in recording the such statement. It may be recorded by the investigation officer himself or by the attending doctor or by any relation of the victim. The court can act upon the dying declaration without being recorded by a Magistrate if the statement of the witness who proves the recording is found to be true and voluntary. .....Tofayel Ahmed =VS= The State, (Criminal), 2016-[1 LM (AD) 511] ....View Full Judgment

Non disclosure of the appellant name of the name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it–
The Appellate Division observed that the High Court Division ought to have considered the non-disclosure of the appellant name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it so far the appellant is concerned particularly when there is admitted enmity between the parties. .....Tofayel Ahmed =VS= The State, (Criminal), 2016-[1 LM (AD) 511] ....View Full Judgment

The Evidence Act, 1872
Section-32, 33 r/w
International Crimes Tribunals Act, 1973
Section 19(1) r/w
The International Crimes (Tribunal-1) Rules of Procedure, 2010
Rule 56(2)
Hearsay evidence–
Mr. Shajahan repeatedly complained that the Tribunal below erred in admitting hearsay evidence.
Without any insinuation I only wish to express my surprise as to how Mr. Shajahan could be oblivious of the express provision in the Act which stipulates that the tribunal shall not be bound by technical rules of evidence and may admit any evidence which is deemed to have probative value, and of the express provision in Rule 56 (2) which confers discretion on the Tribunals to accord due consideration to hearsay evidence
Again, it is not only our Act, hearsay evidences were admissible in the IMT in Nuremberg and Tokyo Tribunal as well as by other national tribunals such as US Military Tribunal in Nuremberg and Soviet Tribunals and the British Tribunal that tried war criminals before as well after the hostility ended in 1945.
Statutes of modern UN sponsored tribunals such as ICTY, ICTR, SCSL, STL and even that of International Criminal Court (ICC) do not proscribe hearsay evidence for very cogent reasons. The very nature of the crimes concerned and the manner of their commission are such that credible hearsay evidence are indispensable.
Although there is no rule governing the admissibility of hearsay evidence before the ICTY, ICTR and SCSL, the Trial Chambers of all these tribunals have refrained from adopting a practice to exclude all hearsay evidence. There is no rule declaring hearsay rule per se inadmissible. General scheme for admissibility of evidence set out in Rule 89 for ICTY, ICTR and SCSL has guided the chambers in their deliberation on hearsay evidence.
In Prosecutor-v-Galic, the Appeals Chamber of ICTY defined the scope of admissibility of hearsay evidence pursuant to Rule 89(1) saying that the said Rule “permits the admission of hearsay evidence in order to prove the truth of such statements rather than merely the fact that they were made. According to that decision a hearsay evidence may be oral i.e. where someone else had told him something out of Court or in black and white, for example when an official report, written by someone who is not called as a witness, is tendered in evidence. The Appeal Chamber expressed that Rule 89(c) clearly encompasses both these forms of hearsay evidence” (Decision on Interlocutory Appeal, June 7, 2002). The Trial Chamber of ICTY expressed in Prosecutor –v-Tadic on a defence motion on hearsay (5th August 1996), “out of Court statement that are relevant and found to have probative value are admissible”.
The same position was taken by the Trial Chamber of ICTY in Prosecutor-v-Blaskic, while deciding on the standing objection of the defence to the admission of hearsay evidence with no inquiry as to its reliability. (January 21, 1998).
It was held that hearsay evidence must have indicia of reliability in order to be admissible: reliability is not merely a matter of going to the weight of the evidence.
Similar view was also expressed in Prosecutor-v-Natelic and Martionovic, ICTY Appeal judgment, May 3, 2006, para 217 and 516, Prosecutor-v- Aleksovski, decision on prosecutor’s appeal on admission of Evidence, 16th February 1999, para 15, Prosecutor-v-Milosevic, decision on testimony of defence witness, Dragan Jasovic, April 15, 2005, page – 4, Prosecutor-v-Mihitino Vic, decision denying prosecution Second Motion for admission of evidence pursuant to Rule 92, (13th September 2006, para 5,)? Prosecutor-v-Prlic, decision on appeals against decision admitting transcript of Jadranko Prlics questioning into evidence, (23rd November, 2007, para-52).
It has been held by all these tribunals that hearsay evidence can be admitted to prove the truth of its contents, and the fact that it is hearsay does not necessarily deprive the evidence of its probative value and that the chamber must be satisfied of its reliability given the context and character of the evidence for it to be admitted (Prosecutor –V- Aleksovski- ICTY, decision on Prosecutor’s appeal on admissibility of evidence, 16th February 1999, para – 15, Prosecutor-v-Semanza, decision on the defence motion for exclusion of evidence on the basis of violations of the rules of evidence, Res Gestae Hearsay and violation of the Statute and Rules of the Tribunals, 23rd August 2000.
In the case of notorious Milosevic, though the Appeal Chamber of ICTY held that hearsay evidence will usually be given less weight than that given to the testimony of a witness who has given it under a form of oath and who has been cross examined, it nevertheless also stated, “it depends upon infinitely variable circumstances of the particular case …..”. (Prosecutor –V – Milosevic, decision on admissibility of Prosecution Investigator’s evidence, 30th September 2002, para 18.
ICTY Chamber also made it abundantly clear that the right to cross examination incorporated as part of the fair trial provisions of Article 21(4)(e) Statute and Article 20(4)(e) of ICTR statute “applies to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness” (Prosecutor –v- Blaskic, decision on standing objection of the defence to the admission of hearsay with no inquiry as to its reliability, 21st January 1998, para 29).
The SCSL in Prosecutor-v-Brima (decision on joint defence evidence to exclude all evidence from witness, 24th May 2005, para 12) observed “it is now well settled in the practice of international tribunals that hearsay evidence is admissible”. It went on to say, “the probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of context and nature of the evidence itself, including the credibility and reliability of the relevant witness”.
The Appeal Chamber in Prosecutor-v-Norman, (Fofana appeal against bail refusal, 11th March 2005, para 22) held that the relevant rule has conferred a broad discretion upon the tribunals to admit hearsay evidence.
Even the East Timore’s Special Panel for serious Crimes held hearsay evidence to be admissible, though hearsay upon hearsay will deserve little weight (Prosecutor-v-Marques, 11th December 2001).
The ICC in Prosecutor-v-Katanga of Ngudjolo (decision on the confirmation of charges, 30th September 2008, ICC-01/04-01/07-717, para 137) held that though any challenge on hearsay evidence may affect its probative value, it may not affect its admissibility. ICC further stated in that case that hearsay is admissible even if the source of the evidence is anonymous.
Whilst relying on ECHR jurisprudence propounded in Kostovski-v-The Netherlands, judgment delivered on 20th November 1989, the pre-trial Chamber of ICC, in Prosecutor-v-Katanga of Ngudjolo, supra, reiterated previous finding of the Pre-Trial Chamber in Prosecutor –v-Labanga that there is nothing in the statute or the Rules which expressly provides that the evidence which can be considered hearsay from anonymous sources is inadmissible per se. In addition, the Appeals Chamber has accepted that, for the purposes of the confirmation hearing it is possible to use items of evidence which may contain anonymous hearsay, such as redacted versions of witness statement. (Prosecutor-v-Labanga ICC-01/04-01/06-803, para 101). The Pre-Trial Chamber further stated that the probative value of anonymous hearsay evidence will be determined in the “light of other evidence”.
The International Military Tribunal in Nuremberg allowed the use of hearsay evidence through affidavits, but it also required that any such affiant to be available for cross examination.
Its charter, developed under the Moscowc Declaration 1943, provided for a criminal procedure that was closer to civil law than to common law with wide allowance for hearsay evidence.
The London Charter enunciated simple evidentiary rule repeatedly propounded in the US internal position papers, reading; “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value” which stands virtually reproduced in Section 19(1) of the Act. (our provisions are not dissimilar) (Paras:713-731); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment

Hearsay evidence under US Law–
Under US Federal Rules of Evidence, statements which would ordinarily be inadmissible under the hearsay rules, will nonetheless be admissible if they fall within a defined exception. Clause 804 of the Federal Rules, which is similar to Rule 89(c) of the ICTY, ICTR Rules, confers wide power upon the Federal Courts to determine issues of admissibility. In Handi –v-Rumsfeld the US Supreme Court indicated that hearsay evidence may be permissible in cases involving enemy combatants, expressing; “Hearsay, for example, may need to be accepted as the most reliable available evidence from the government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favour of the government’s evidence, so long as that presumption remains rebuttable one and fair opportunity for rebuttal were provided”.
Professor David Weissbrodt’s remark on application of hearsay evidence by international crimes tribunals are, as below;
“International Courts usually admit hearsay evidence. The hearsay rule is characteristic of common law systems. In civil law systems, where there is no jury and the Judge conducts the fact finding process, out of Court statements are usually admitted when relevant. International Criminal Courts have borrowed their rules of evidence from both common law and Civil law system, but usually favour admissibility of all evidence”. (Para-732); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment

In the instant case, there are two dying declarations made by deceased Hatem Ali Sikder and in both the dying declarations he mentioned the names of the appellants. The second dying declaration being nearer to death, the High Court Division believed the same and acted on it. Moreover, P.Ws 4 and 7 in clear terms mentioned the inflicting of injuries by the appellants on the person of the deceased, which is supported by the medical evidence. The High Court Division ought not to have rejected the evidence of these two witnesses merely on the ground that they were not disinterested witnesses, notwithstanding the fact that the defence failed to shaken their credibility in cross-examination. The order of conviction is maintained. Samad Sikdar Vs. Md. Abdul annan Sikder, 17BLD(AD)239

Dying declaration—Its probative value (by majonty) A dying declaration although a piece of substantive evidence has always been viewed with some degree of caution as the matter is not liable to cross—examination It stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and common human experience. When there is a record of such statement of the deceased the court has to satisfy itself, in the first place, as to the genuineness of the same keeping in view all the evidence and circumstances in which the statement of the deceased was said to have been recorded. The alleged dying declaration, the only piece of evidence against the appellant, having not been free from reasonable doubt, the accused is entitled to the benefit of doubt. Sk Shamsur Rahman Vs. State 42 DLR (AD) 200.

Dying declaration— Statement of a person about the cause of his death or circumstances leading to his death is substantive evidence under section 32(1) of the Evidence Act—If found reliable, it may by itself be basis for conviction even without corroboration. Statement falling under section 32(1) of the Evidence Act is called a “dying declaration” in ordinary parlance—A dying declaration may be recorded by any person who is available and it may be written or it may be verbal or it may be indicated by signs and gestures in answer to questions even—There is no requirement of law that a dying declaration should be recorded by a Magistrate as in the case of the confessional Statement of an accused under section 164(3) CrPC. Nurjahan Begum Vs. State 42 DLR (AD) 130.

Legislature in its wisdom has put a dying declaration at par with evidence on oath for the simple reason that a man under the apprehension of death is not likely to speak falsehood and involve innocent persons in preference to his assailant. When a Probationer Officer actually recorded the statement in presence of, and under the observation of the Superior Officer (PW 9), there was hardly any wrong in his Evidence that he recorded it in presence of the witnesses. Nurjahan Begum Vs. State 42 DLR (AD) 130.

Evidence Act 1872,
Section 32(1) read with
Section 162(2) of Code of Criminal Procedure, 1898
Whether a dying declaration recorded by an Investigating Officer is admissible in evidence:
In view of the testimonies of the PW-16 S.I. Moazzem Hossain and P.Ws. 4, 5 and 18 we do not find any reason to disbelieve the dying declaration of the victim (exhibit-4). It is true that when a police-officer in course of investigation examines any person supposed to be acquainted with the facts and circumstances of the case, the substance of that examination falls under the category of statement recorded under section 161 of the Code of Criminal Procedure and that statement is not admissible in evidence. But in view of the section 162 (2) of the Code of Criminal Procedure a dying declaration recorded by an Investigating Officer does not lose its special evidentiary value and can be sole basis for awarding conviction. Unlike recording of a confessional statement law does not require that a dying declaration shall be recorded by certain prescribed persons for the very reason that a dying man may not have sufficient time in his hand for his declaration to be recorded by a prescribed person. …Md. Mehedi Hasan @ Rajib and anr Vs. The State, (Criminal), 16 SCOB [2022] AD 17 ....View Full Judgment

Dying declaration,
Dying declaration cannot be considered as the sole basis for conviction and awarding sentence to the appellant, specifically in the absence of any of the witnesses who were present in the hospital during the time when the alleged dying declaration was made by such a critically injured person who was under intensive care and not supposed to be in conscious. As such the finding of the High Court Division that ‘the prosecution has clearly established the motive of the case and the oral dying declaration has also been supported by the medical evidence and other circumstances and materials on record’ is not sustainable in law. …Rashed Vs. The State, (Criminal), 12 SCOB [2019] AD 34 ....View Full Judgment

Dying declaration–
It appears that such dying declaration cannot be considered as the sole basis for conviction and awarding sentence to the appellant, specifically in the absence of any of the witnesses who were present in the hospital during the time when the alleged dying declaration was made by such a critically injured person who was under intensive care and not supposed to be in conscious. As such the finding of the High Court Division that ‘the prosecution has clearly established the motive of the case and the oral dying declaration has also been supported by the medical evidence and other circumstances and materials on record’ is not sustainable in law. Consequently, the impugned judgment passed by the High Court Division basing on the such uncorroborated oral dying declaration against the present appellant is liable to be set aside. Accordingly, this criminal appeal is allowed. ...Rashed =VS= The State, (Criminal), 2019 (1) [6 LM (AD) 70] ....View Full Judgment

Hearsay evidence– It is the cardinal principle of law of evidence that hearsay evidence is to be considered together with circumstances and the material facts depicted. Hearsay evidence is admissible and the Court can rely on it provided it has probative value. (Majority view), (Per Mr. Justice Syed Mahmud Hossain, CJ). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, (Criminal), 2020 [9 LM (AD) 593] ....View Full Judgment

Use of evidence recorded by Magistrate of Marine Court by Admiralty Court- Whether permissible—
The evidence of the witnesses recorded by the Magistrate of the Marine Court cannot be used by the Admiralty Court for determining the amount of compensation. Bangladesh Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others. 3, MLR (1998) (AD) 59.

Evidence given in preliminary enquiry is admissible as substantive evidence—
Evidence given in a judicial proceedings and admitted as such under section 33 of the Evidence Act are substantive evidence under section 145 of the Evidence Act on drawing the attention of the witness to the statement in conflict and can well be put in under section 288 of the Code of Criminal Procedure. Birendra Chandra Sana Vs. Shashi Mohan Saha (1975) 27 DLR (SC) 89.

The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs vessel) who appeared before the Magistrate, 1st. Class, Marine Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court was relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. [Para-14] BIWTC Vs. Al-Falah Shipping Lines Ltd. & Ors. 6 BLT (AD)- 103

Entries in the books of accounts of business transaction are admissible in evidence—
Entries in the books of accounts regularly maintained in course of business transaction are admissible in evidence subject to the provisions of section 67 of the Evidence Act. M/s. Bengal Friends and Co. Vs. M/s. Gour Dsnode Saha (1969) 21, DLR (SC) 357.

It was incumbent on the Courts below to properly scrutinise the material circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant's guilt. Osman Gani vs State 54 DLR (AD) 34.

The exception taken by the Counsel for non–examination of all or reasonable number of witnesses cited in the prosecution report is of no merit since it is for the prosecution to decide amongst the cited witnesses how many it will examine for establishing its case against the accused persons. Zahed Ali Foreman (Driver) and others vs State 56 DLR (AD) 29.

Maps prepared by private person— not public documents—
Maps which are prepared by private person are not public documents and have no presumption under section 83 of the Evidence Act, 1872. Ramkeshore Vs. Union of India (1975) 27 DLR (SC) 93.

Relevancy, admissibility and evidentiary value of previous judgment—
Relevancy and evidentiary value are two different things, the former relates to admissibility of certain thing in evidence which is quite distinguishable from the evidentiary value of the latter. Previous judgment in a subsequent suit may be relevant but its evidentiary value way be different.
Section 40 of the Evidence Act puts similar effect of previous judgment, order or decree in subsequent suit operating as resjudiata under section 11 of the Code of Civil Procedure. Under section 41 final judgment, order or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction is not only relevant but also is conclusive both against the parties thereto as well as against the rest of the world this being judgment in rem and riot the one in personam. Under section 42 a judgment is relevant if it relates to any matter of public nature but it is not conclusive proof of the fact it states. Hazi Waziidlah Vs. ADC (Rev) 41 DLR (AD) 97.

Judgments interparties or not to what extent admissible in evidence in subsequent proceedings—
Judgment interparties or not are conclusive evidence for and against all persons whether parties, privies or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In otherwords the law attributes unerring verity to the substantive as opposed to the judicial portions of the record. But where the judgment is interparties, even recitals in such a judgment are admissible in evidence. A previous judgment is admissible also to prove statement or admission or an acknowledgement made by a party or predecessor in enterest of a party in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion. Malik Din Vs. Mohammad Aslam (1969) 21 DLR (SC) 94.

Section 43 of the Evidence Act is attracted to the present case. Under section 40 a previous judgment, order or decree is relevant to bar a second suit, that is, when such a judgment operates as res judicata under section 11 CPC. Under section 41 a final judgment, order or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, is not only relevant but also is conclusive both against the parties thereto as well as against the rest of the world, that is, it is a judgment in rem as distinguished from a judgment in personam. Under section 42 a judgment is relevant if it relates to any matter of public nature but it is not a conclusive proof of the fact it states. None of these sections, 40, 41 and 42, obviously is attracted to the instant case. It is section 43 which may be attracted to the instant case. Hazi Waziullah vs ADC Revenue 41 DLR (AD) 97.

Findings of the Criminal Court are not binding on the Civil Courts — An order under section 145 Cr. P.C. cannot be treated as substantive evidence of possession — A judgment of acquittal in a criminal case only decides that the accused has not been found guilty of the offence with which he had been charged but the opinion and the conclusion expressed in the judgment are not admissible in evidence in civil Courts.
Akhtar Hossain Sharif and others Vs. Munshi Akkas Flossain and others; 3BLD (AD)334

Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint-and other steps taken in connection there with is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right.
Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD(AD)135

The date 30.05.1971 was written by different ink and different hand writing. From the report of delivery of possession, it appeared that, in fact, no delivery of possession was given and no witnesses were present during delivery of possession as there was no signature of any witness on exhibit 1(ka).
Findings and decision arrived at by the High Court Division having been made on proper appreciation of law and fact do not call for interference. .....Shamsul Alam Mia =VS= Sirajul Hoque & others, (Civil), 2016-[1 LM (AD) 316] ....View Full Judgment

Fraud vitiates a decree–
The real owner’s title will not be extinguished in any manner in a mortgaged property, even after passing a decree, if it is found that the mortgagors have no right, title and interest in the property mortgaged. Therefore, whatever decree the mortgagee will get, such the decree is subject to the mortgagor’s title in the said property. Fraud vitiates a decree and the real owner can also ignore the decree under section 44 of the Evidence Act. .....Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448] ....View Full Judgment

Fraudulent judgment and decree– A fraudulent judgment and decree may be avoided in the proceedings in which it is sought to be relied upon. It is not necessary to have it set-aside by instituting independent proceedings in a competent Court. A judgment or decree obtained by practicing fraud upon a Court binds no such Court or any one else claiming through such judgment or decree though it has not been set-aside or reversed. .....Nadira Huq =VS= Rajdhani Unnayan Katripakkha (RAJUK) , (Civil), 2022(2) [13 LM (AD) 65] ....View Full Judgment

District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act–
The High Court Division was also wrong in relying upon the opinion of the so-called expert, i.e. the District Registrar, Dhaka by just making some query to him regarding the deed in question when he appeared before it. We brought the records of the civil revision from the High Court Division to see whether any statement of the so-called expert was reduced to writing, but we found nothing. The procedure adopted by the High Court Division does not have also any legal backing and by no means, the District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act. Mr. Bhuiyan also failed to point out any provision either from the Code of Civil Procedure or the Evidence Act to support the procedure adopted by the High Court Division. Whether the kabala in question was antedated nor not, in other words, genuine or not, is a question of fact and that had to be decided on the evidence adduced in the suit. But the High Court Division without considering the evidence on record took an unusual course to come to a fact as stated hereinbefore and thereby committed a serious error of law in passing the impugned judgment and order and as such, the same cannot be sustained in law and must be set aside. .....Zainal Abedin =VS= Mohammad Kala Miah, (Civil), 2018 (1) [4 LM (AD) 348] ....View Full Judgment

Medical Evidence:
Merely corroborative
It is true that the doctor has failed to ascertain the cause of death of the deceased. But since the confessional statements of the accused are found to be true, there remains no doubt in coming to a conclusion that the accused murdered victim. The importance of medical evidence in determining the cause of death of a victim is only corroborative, not conclusive in nature. In the case of Rekhal Chandra Nuha v State, 1 BLC (AD) 89, it has been held that in the absence of post mortem examination report, on the basis of ocular evidence conviction can be sustained. The State -Vs- 1. Md. Nasiruddin @ Anik (Criminal) 2019 ALR (HCD) Online 275 ....View Full Judgment

Section 7K of the Arbitration Act of 2001:
While issuing an order of ad-interim restraint or injunction the learned District Judge is not empowered to pass an order under section 45 of the Evidence Act, 1872:
While issuing an order of ad-interim restraint or injunction whatsoever, the learned District Judge is not empowered to pass an order under section 45 of the Evidence Act, 1872 for purpose of having any signature examined by a hand writing expert. It is also necessary to be reminded that a report under section 45 of the Evidence Act, 1872 submitted by a hand writing expert is not a conclusive evidences of finding of facts but which must be corroborated by supporting evidences. It is needless to state that such assessment and adducing of such evidences is a longer process under the relevant procedural law. By no stretch of imagination can it be contemplated that section 7K of the Arbitration Act, 2001 including section 7K (1) P contemplate the power of a District Judge for passing of the ad-interim order beyond a situation of urgency. Section 7K (1) particularly sub section (P) of the Act of 2001, does not contemplate a lengthy trial pursuant to adducing evidences whatsoever. Therefore the provision of Section 7K is limited to passing certain orders under certain situations and circumstances. The intention of the legislators in enacting of those provision also upon comparison and analogy with Order 39 Rule (1) and (2) of the Code of Civil Procedure, 1908 is to address circumstances of urgency and nothing beyond. ...Anamika Corp. Ltd. & ors Vs. Humayun M. Chowdhury & ors, (Civil), 17 SCOB [2023] HCD 119 ....View Full Judgment

Medical evidence is only corroborative in nature—Ocular evidence of the eyewitness which substantially corroborates the major injuries on the person of the deceased must be accepted. Abdul Quddus Vs. State 43 DLR (AD) 234.

When modern technologies are available in comparing the disputed signatures with the admitted signature the court should not take the risk of comparing the signature by itself– The finding in respect of thumb impression. So, on the face of such report by the Handwriting Expert the High Court Division committed serious error in relying on the opinion of the trial Court and also upon its one opinion and thereby erroneously passed the impugned judgment and order. No doubt the court is the expert of all experts as decided in the case of Captain, (Retd) Abtab Ali vs SM Kutubuddin, 56 DLR (AD) 117. But when modern technologies are available in comparing the disputed signatures with the admitted signature the court should not take the risk of comparing the signature by itself when the experts with modern technologies are available. This view finds support in the case of Serajuddin Ahmed (Md) vs AKM Saiful Alam, 9 MLR (AD) 201 = 56 DLR (AD) 41 and Tarek Chandra Majhi vs Atahar Ali Hawlader, 8 MLR (AD) 209 = 8 BLC (AD) 67. In respect of thumb impression it is not at all possible to justify whether one thumb impression matches with other by naked eye other than with the help of modern technique and enlargement of impression for which the Expert is the right person who can give opinion upon critical analyses of all marks of the impressions, as decided in the cases cited above. Appellate Division is of the view that the High Court Division was not at all justified in discarding the handwriting expert's report and relying on the opinion of the trial Court and also examining the signature and thumb impression by itself and thereby it came to an erroneous decision which is liable to be set-aside. .....Pranay Kumar Malakar =VS= Chowdhury Makhlisur Rahman, (Civil), 2022(1) [12 LM (AD) 81] ....View Full Judgment

Since by scientific process or method examination of signature, particularly thumb impression, has developed much, it is safe and sound to leave the matter of such examination to the expert or to the person specialized in the examination. Serajuddin Ahmed and others vs AKM Saiful Alam and others 56 DLR (AD) 41.

The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23.

The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

The Evidence Act, 1872
Section 50
Mohammedan Law (Mulla’s)
Paragraph 252
Section 50 of the Evidence Act declares that "when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person, who as a member of family or otherwise, has special means of knowledge on the subject is a relevant fact". Illustration (a) to section 50 says; “the question is, whether A and B were married. The fact that they were usually received and treated as husband and wife, is relevant”. This section says when the question arises as to the presumption of marriage, the opinion that makes relevant is opinion expressed by conduct as to the existence of such relationship and not merely as to that relationship. It is for the Court to weigh such evidence and to come to its own opinion as to the relationship in question. When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact.
Even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation forms often an important element in the status of valid marriage. A presumption of consummation is raised from the retirement of the husband and wife, i.e. there should be no third person at the place and that the place should not be a public one, like a public bath, public road, a mosque etc. Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage. The law permits no specific ceremony for the contractual performance of a marriage: and no religions rites are necessary for contracting a valid marriage. There are even opinions that a marriage may be constituted without any ceremonial and even in the absence of direct proof, indirect proof might suffice. The High Court Division, in the premises, erred in holding that mere living together as husband and wife did not bring it within the bound of marriage. Apart from acknowledgment by either party, if there is continual cohabitation between a man and woman as husband and wife, there is presumptive marriage and legitimacy provided that the parties were not prohibited from intermarrying.
We find that the High Court Division has totally overlooked the presumption of a muslim marriage and relying upon paragraph 252 of Mulla’s Mohammedan Law disbelieved the appellant’s claim of marriage. If the High Court Division had considered paragraphs 254 and 268 of Mulla’s Mohammedan Law, its decision would have been otherwise. The High Court Division based its decision on piecemeal consideration of Mulla’s Mohammedan Law and arrived at a decision which is not supported by any of the authors of Mohammedan Law. It has tried to apply a doctrine of Muslim Marriage against the established schools of Mohammedan Law. Therefore, the decision of the High Court Division is based on a misconception of the basic principles of Mohammedan Law and thus the interference of the judgments of the Courts below is an error of law apparent on the face of the record. The evidence on record sufficiently proved that there was existence of legal marriage between the appellant and respondent. ...Momtaz Begum(Mst.) =VS= Anowar Hossain, (Civil), 2021(1) [10 LM (AD) 188] ....View Full Judgment

Power of Attorney executed in Foreign Country— Admissibility in evidence— Notaries Ordinance 1961 (Ord. XIX of 1961) Section 14— Registration Act, 1908 (Act XVI of 1908) Section 33—
If a notarial act is done in a foreign country by a foreign Notary and there is reciprocal arrangement between Bangladesh and that foreign country, then those notarial acts including the power of attorney executed and authenticated by a Magistrate or a Notary Public in that foreign country will be valid and the power of attorney admissible in Bangladesh as contemplated in section 14 and 33 of the Notaries Ordinance, 1961 (Ord. XIX of 1961) and the Registration Act, 1908 (Act. XVI of 1908) Nurunnessa and others Vs. Babar Ali Bepari and others. 1 BLD (AD) 86.

The plaintiffs having been successful in proving that the original kabalas were lost it cannot be argued that inadmissible evidences were relied upon as the courts below found that secondary evidence was given of those original documents. Abdul Khaleque Mollah vs ABM Zakaria and another 51 DLR (AD) 78.

Power of attorney authentic in foreign city—Power of attorney executed and authenticated by a Magistrate or Notary Public in a foreign country—Whether could be acted upon as a valid document in Bangladesh.
If a notarial act is done in a foreign country by a foreign notary and there is reciprocal arrangement between Bangladesh and that foreign country, then by reference to section 14 of Notaries Ordinance and section 33of the Registration Act, those Notarial acts will be valid and the power of attorney admissible in Bangladesh. Nurunnessa and others Vs. Babar Ali Bepari and others; 1BLD (AD) 86

Judicial notice of facts—
Court can take judicial notice of facts and matters of Public history. Reference to books of unknown origin and not recognised by courts is discouraged. The State Vs. Abdul Khaleq Howladar—2, MLR(1997) (AD) 244.

Courts can take judicial notice of the ordinary course of events–
Courts can take judicial notice of the ordinary course of events. That a matter is judicially noticed means that it is taken as true without the necessity of being formally proved on evidence. Taylor in his Law of Evidence states that a man is not the father of a child, where non-access is already proved until within six months of the woman’s delivery. Nor is it necessary to prove the course of the heavenly bodies, or the like, that a matter is judicially noticeable means that it is taken without offering of evidence by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. A proclamation of emergency is a matter of general information of which a court can take judicial notice. A matter of public history may be such a fact (Wigmore section 2567). Facts of which judicial notice may be taken are not limited to those of the nature specifically mentioned in clauses (1) to (13) of section 57 of the Evidence Act.... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Courts can take judicial notice of the ordinary course of events. That a matter is judicially noticed means that it is taken as true without the necessity of being formally proved on evidence. Taylor in his Law of Evidence states that a man is not the father of a child, where non-access is already proved until within six months of the woman’s delivery. Nor is it necessary to prove the course of the heavenly bodies, or the like, that a matter is judicially noticeable means that it is taken without offering of evidence by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. A proclamation of emergency is a matter of general information of which a court can take judicial notice. A matter of public history may be such a fact (Wigmore section 2567). Facts of which judicial notice may be taken are not limited to those of the nature specifically mentioned in clauses (1) to (13) of section 57 of the Evidence Act. (Surendra Kumar Sinha, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1 ....View Full Judgment

The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Whether the author is living or dead, the book of reference must be an appropriate reference book in that the author must be shown to be properly qualified to make statements upon the subject and so only standard books acknowledged as authorities may be referred to-The reference to the booklet of unknown origin is therefore entirely disapproved. State Vs. Abdul Khaleque 5 BLT (AD)-227

The Court may take judicial notice under Section 57 of the Evidence Act certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary.
A report in a news paper or magazine is only hearsay evidence. It is not one of the documents referred to in section 78(2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuiness attached under section 81 to a magazine report cannot be treated as proof the facts reported therein. (Per S. K. Sinha, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State (Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386] ....View Full Judgment

Judicial Notice of a period of general dislocation — Momentous changes took place when Benches of the High Court Division were established outside the capital — the cases arising from Barisal were initially sent to the Jessore Bench and then after the establishment of the Barisal Bench, to Barisal — It was a period of general dislocation of which judicial notice should be taken.
Mvi. Md. Keramat Ali and another Vs. Syed Munsur Ali and others; 11BLDAD97

The revisional Court could not re-open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence.
The Appellate Division observed that the High Court Division observed that the plaintiff could not produce any single document of title, showing his acquisition of right, title and interest in the suit property. The plaintiff also failed to prove its possession in the suit land by producing any witness in support of its claim. The High Court Division concluded that since the question of title and possession had been finally decided by lower appellate Court, the revisional Court could not re-open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence. The High Court Division also noted that the defendant's applications to get lease of the suit tank could not be a ground for passing a decree in favour of the plaintiff, who must establish his own case in order to succeed. .....Sylhet Pourashava =VS= Purnendu Bikas & others, (Civil), 2016-[1 LM (AD) 69] ....View Full Judgment

The provisions of sections 58, 65 and 73 of the Evidence Act were misread and misconstrued, in a suit for declaration of title onus lied upon the plaintiff to prove his title producing the original title deed through competent witnesses–– Appellate Division finds that the High Court Division committed error of law in disturbing the concurrent findings of facts arrived at by both the Courts below and on misreading of the evidence on record. Hence, this Division compelled to approve the submission of the learned Senior Counsel that the High Court Division gave appalling discovery upon non-consideration of the findings of facts recorded by the Courts below. ––The appeal is allowed. No order as to costs. The impugned judgment and order of the High Court Division is set aside and that of the Trial Court is hereby restored. .....Bhadu Pramanik =VS= Md. Abbas Ali Pramanik, (Civil), 2022(2) [13 LM (AD) 7] ....View Full Judgment

Evidence of interested witness— value of—
Evidence of interested witness should not be relied upon which is opposed to the principle of the law of evidence. Abani Mohan Saha Vs. Assistant Custodian. 39 DLR (AD) 223.

Reliance on oral evidence of the interested witnesses in utter disregard of the principles of law of evidence deprecated. Abani Mohan Saha vs Asstt. Custodian 39 DLR (AD) 223.

The accused can be convicted despite the seizure list witnesses denied supporting the prosecution case– 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 trial Court as well as the High Court Division successfully assessed that the prosecution had been able to prove beyond reasonable doubt that 250 bottles of Phensedyl amounting to 25 liters containing Chlorpheniramine Maleate and codeine phosphate have been recovered and seized from the possession of the accused-respondent. .....The State =VS= Badal Kumar Paul, (Criminal), 2022(1) [12 LM (AD) 423] ....View Full Judgment

Secondary evidence can be given when the original is lost—
When it, is found that the original document is lost, certified copy of the document as secondary evidence can be adduced. Abani Mohan Vs. Assistant Custodian. 39 DLR (AD) 223.

A firisti is no evidence of the contents of the documents in support of relationship of landlord and tenant. Chandan Mondal@ Kushal Nath Mondal andothers vs Abdus Samad Talukder & others 51 DLR (AD) 150.

A party producing secondary evidence of a document is not relieved of the duty of proving the execution of the original. Even where a document is exhibited without objection the Court is to be satisfied as to its execution. Sova Rani Guha alias Sova Rani Gupta vs Abdul Awal Mia and others 47 DLR (AD) 45.

Photostat copy or secondary evidence are admissible in evidence.
Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person legally bound to produce it, or when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.
Executive Chairman, BEPZA -Vs.- M/S. Abdul Mannan 3 ALR(2014)(1)(AD) 168

Secondary evidence
The production of the certified copy of a sale- deed does not by itself warrant the presumption of due execution of the original document. A party producing the secondary evidence of a document is not relieved of the duty of proving the execution of the original. Even in a case where a document has been exhibited without objection the Court is to be satisfied as to the execution of the document. Soya Rani Guha alias Soya Rani Gupta Vs. Abdul Awal Mia and others, 14 BLD (AD) 257.

Proof of document when not objected to—
Objection as to the admissibility of a document produced before court must be taken at the earliest point of time. When no objection was raised before the trial court and the document was marked exhibit, it goes as document admitted and no objection can thereafter be entertained at the appellate stage. Abdullah Vs. Abdul Karim (1968) 20 DLR (SC) 205.

Admissibility of private documents in evidence—
Plaintiff having relied upon the rent receipts produced must prove their genuiness admissibility of which should be decided by the court in the fact and circumstance of the case. Md. Jashimuddin Kanchan Vs. Md. AH Ashraf. 42 DLR (AD) 289.

Section 64 of the Evidence Act, 1872 states that documents must be proved by primary evidence except in the cases hereinafter mentioned. Primary evidence means the document itself produced for the inspection of the court. In the instant case, no original document was produced before the court and during the investigation, the investigating officer also did not seize any original document. The secondary evidence may be given of the existence, condition or the contents of the document in the cases mentioned in section 65 of the Evidence Act, 1872. The prosecution failed to prove any of the exception mentioned in section 65 of the Evidence Act, 1872. .....Md. Nurul Islam Vs. The State & anr, (Criminal), 19 SCOB [2024] HCD 146 ....View Full Judgment

যখন কোনো দলিলের মূল কপি নষ্ট হয়ে যায়, হারিয়ে যায় ইত্যাদি তখন সেই দলিলটি সহি মহুরী নকল দিয়ে প্রমান করা যায়। সুতরাং যেহেতু উপরিল্লিখিত তালাশীপত্র মোতাবেক (প্রদর্শনী-৮ ও ১১) রেন্ট স্যুটের মূল নথি ধ্বংস করে দেওয়া হয়েছে এবং বয়নামা, দখলনামা এবং স্যুট রেজিষ্ট্রারের সহি মহুরী নকলসমূহ মামলা রজু হওয়ার ৩০ বছর পূর্ব উত্তোলিত এবং যেহেতু আমাদের পরীক্ষান্তে উক্ত প্রদর্শনী সমূহ জাল জালিয়াতির মাধ্যমে সৃষ্ট বলে প্রতীয়মান হয় না এবং জাল জালিয়াতির মাধ্যমে সৃষ্ট রয়েছে মর্মে বিবাদী পক্ষ কোনো ধরনের সাক্ষ্য দাখিল করতে পারে নাই, সেহেতু এই তিনটি প্রদর্শিত দলিল সমূহ (প্রদর্শনী-২, ৩ এবং ৪) বিশ্বাস না করা বা তাদের উপর নির্ভর না করার কোনো যৌক্তিক কারণ খুঁজে পাচ্ছি না। সেহেতু আমরা মনে করি, বিচারিক আদালত এই তিনটি এবং আরো কিছু দলিলিক সাক্ষ্যের উপর ভিত্তি করে নিলাম বিক্রয়ের বিষয়টি করেন এবং প্রমাণিত হওয়া মর্মে যে সিদ্ধান্ত নিয়েছেন তা হস্তক্ষেপ করা কোনো বৈধ ও আইনসঙ্গত কারণ নাই। ... Abdul Latif Vs. Mohammad Kamal Uddin and others (আব্দুল লতিফ –বনাম- মোহাম্মদ কামাল উদ্দীন এবং অন্যান্য), (Civil), 15 SCOB [2021] HCD 27 ....View Full Judgment

Secondary Evidence-When admissible—
When the original is lost or destroyed the copy thereof as secondary evidence is admissible under section 65 of the Evidence Act. Abdul Khaleque Mollah Vs. Mr. A.B.M. Zakaria & another. 3, MLR (1998) (AD) 57.

Secondary evidence —
Where the original is lost secondary evidence of a document is admissible in evidence. Haji Waziullah Vs. ADC 41 DLR (AD) 97.

`K’ list of the abandoned building– Mere failure to produce the original deed of sale under no circumstances can take away the right of the respondents– It appears that the respondents have been able to prove their case before the High Court Division about the whereabouts of their father the owner of the house, his/ their citizenship and their exclusive possession in the property in question since purchase and they are paying all charges, taxes and rents to the government my mutating their names. Moreover when the competent authority after holdings proper inquiry found the predecessor of the respondents to the rightful owner in 1973 by virtue of the registered sale-deed of 1970 and since then till date the present respondents are enjoying the possession of the same upon mutating their names in all the government records and since the record of 1973 has never been challenged by the government or set-aside by and appropriate authority and since in the recent Mohanagar Survey the name of the respondents have been correctly records as owners and possessors of the house in question and since they are paying installments to the House Building Finance Corporation regularly, mere failure to produce the original deed of sale under no circumstances can take away the right of the respondents. Appellate Division does not find any illegality which would call for interference by this Division. Accordingly this Division holds that the High Court Division did not commit any error either of fact or law in arriving at the decision. Thus this Division does not find substance in this appeal. Accordingly this civil appeal is dismissed without any order as to cost. .....Government of Bangladesh =VS= Sultan Giasuddin, (Civil), 2022(1) [12 LM (AD) 45] ....View Full Judgment

The rule contained in section 65 which excludes secondary evidence is not so rigid as to be enforced even if no objection is taken at the trial by the party against whom the secondary evidence is offered. As there is nothe execution of a document in section 65, a certified copy is only evidence of the existence, condition and contents of a document and not of its execution. A certified copy is a copy signed and certified as true by the officer to whose custody the original is entrusted, and it is admitted upon the credit of such officer without comparing with the Original. Unless a party can be found to have been stopped from objecting to the admissibility of the evidence, evidence, not otherwise admissible, or which would have been liable to rejection if objection were taken to it, can not be said to be good evidence, if admitted by the consent of parties.
Zafela Begum and others -Vs-Atikulla and others 1 ALR (AD)1

Secondary evidence — Question of admissibility without formal proof — Though no objection was raised when the secondary evidence in the Photostat copy was produced, the party producing it was not exempt from explaining why its original was not produced
— If the original is not available, the reason for non-availability must be given.
Hazi Waziullah and others Vs. Additionial Deputy Commissionier, Noakhali and others; 9BLD (AD)135

The prosecution proved the photocopy of alleged letter of admission of guilt of the accused Md. Nurul Islam as exhibit-1 and the photocopy of the deposit slips as exhibit-II. No original letter of admission of guilt and deposit slip was proved by the prosecution. Admittedly all the documents lie with the Sonali Bank Ltd. Neither the investigating officer seized those documents nor any original document was proved by the prosecution. Furthermore, the investigation officer PW. 9 Rabindranath Chaki stated that seized documents were not attested by any officer of the bank. The prosecution failed to give any explanation under section 66 of the Evidence Act, 1872 for not producing original documents. No evidence was adduced by the prosecution to show that the original document was lying with the accused Md. Nurul Islam. Therefore, exhibits- 1, 2, 4, 5, 6 and 7 in Special Case No. 8 of 2012, exhibits- 2 to 7 in Special Case No. 9 of 2012, and exhibits 1 to 5 in Special Case No. 10 of 2012 are not admissible in evidence. .....Md. Nurul Islam Vs. The State & anr, (Criminal), 19 SCOB [2024] HCD 146 ....View Full Judgment

The confessional statement of the accused in another case cannot be taken into account in this case–– Confessional statement of an accused in a previous case can be taken into account in a subsequent case provided he is accused in both the cases and requirements of law in recording confessional statement have been fully complied with. Confessional statement made by the accused in another case would be admissible if he is an accused in both the cases and that if the requirements of law are satisfied, it is immaterial whether the confession was made in one particular case or in a different case [State of Gujarat Vs. Mohammed Atik and others, AIR 1998 SC 1686]. A confession made by an accused person in connection with another case is found to be relevant in connection with other case and if the offences committed in course of the same transaction and if the confession has been duly recorded in accordance with law. Secondary evidence after fulfilment of the requirements of section 66 may be adduced to prove the confession and if the person making the confession is accused in both or all the incidents of commission of offences [Mufti Abdul Hannan Munshi alias Abul Kalam and another-Vs-State, 69 DLR (AD) page 490]. .....Younus Ali @ Kawser Ahmed =VS= The State, (Criminal), 2024(1) [16 LM (AD) 561] ....View Full Judgment

Secondary evidence, admissi­bility of– Certified copies of certain kabuliyats were filed without calling for the original copies. Learned Judge of the High Court Division on a wrong consideration of section 66 Evidence Act left those out of consideration treating them as inadmissible as the originals were not called for. But the documents having been filed and marked exhibits without any objection the question of inadmissibility of those documents cannot be raised at a subsequent point of time. Joynal Abedin & others vs Mafizur Rahman 44 DLR (AD) 162.

Will-Execution, attestation and its proof—
Execution of a Will means and includes the document of a Will by putting his signature or thumb impression as the case may be thereon in sound mind with the full knowledge about the nature and effect of his action, the testator having the testamentary capacity at the time when he executed the Will. The execution shall be attested by witnesses. In order to prove a Will the requirements of sections 67 and 68 of the Evidence Act, 1872 must be complied with. Paresh Chandra Bhoumik Vs. Hiralal Nath and another. 4 BLD (AD) 199.

Execution of a document — How to be proved— Legal value of Registrar's endorsement—
Though the certificate of endorsement of the Registrar raises a presumption as to the admission of execution of the document by the executant, such endorsement by itself is not the conclusive evidence of the execution of the deed. Therefore the execution of a deed shall be proved to satisfy the legal requirements in the manner as provided under section 67 and 68 of the Evidence Act, 1872. Abani Mahon Saha Vs. Assistant Custodian uested property and others. 7 BLD (AD) 306.

Mere non-payment of rent does not affect the title accrued through lawful transfer
The Appellate Division observed that the findings of the High Court Division that the plaintiffs could not prove the title of their predecessor-in-interest, Rashid Ali pursuant to Exhibit-1 in the first schedule land by other documentary evidence such as rent receipts to show payment of rent by Rashid Ali to the Government after S.A. operation. The aforesaid finding is erroneous because mere non-payment of rent does not affect the title accrued through lawful transfer admittedly when the title of Ranjit Kar and his brother from whom Rashid Ali purchased the suit land was not denied.
Abdun Noor and others -Vs.- Aziruddin and others. (Civil) 13 ALR (AD) 33-39

Will how to be proved—
Genuineness of a will has to be proved in the mariner as required by section 67 and 68 of the Evidence Act. Paresh Chandra Bhownick Vs. Hiralad Nath (1984) 36 DLR (AD) 156.

Section 3 of the Transfer of Property Act and Section 68 of the Evidence Act: The law on attesting witness is guided by section 3 of the Transfer of Property Act and Section 68 of the Evidence Act. The scribe will not be an attesting witness unless he intends to sign the deed as such. In other words a scribe can play the dual role of a scribe and an attesting witness. ...Sirajul Haque Howlader and ors Vs. Zulekha Begum & ors, (Civil), 17 SCOB [2023] HCD 199 ....View Full Judgment

A registered document carries with it a presumption of validity which can be rebutted after giving due opportunities to the parties. The case is remanded for. disposal after giving such opportunity to prove genuineness or otherwise of the kabala in question. Haji Sk. Md Lutfur Rahman vs Chairman, Court of Settlement 45 DLR (AD) 136.

Appeal is the continuation of the suit and the appellate Court has similar power like that of the trial Court and the appellate Court in appropriate cases can obtain additional evidence to come to a correct decision. By taking opinion of the handwriting expert, the appellate Court did not exceed its jurisdiction.
The Appellate Division observed that the appellate Court being the final Court of fact came to a definite finding that the plaintiff could not prove the alleged contract and the High Court Division without reversing the findings of the appellate Court with reference to the evidence on record made the Rule absolute setting aside the judgment and decree of the appellate Court. In the light of the findings made before, the Appellate Division finds that the impugned judgment and order passed by the High Court Division can not sustain in law.
A. K. Azad and another -Vs.- Mostafizur Rahman and others. (Civil) 13 ALR (AD) 71-74

Provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the ad-mitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment. …Shawkat Hossain(Md.) =VS= Golam Mohammad, (Civil), 2020 (1) [8 LM (AD) 51] ....View Full Judgment

Remand the case for fresh trial– Reported in 8 BLC (AD) 67. This Division held in that case "in case of contentious writing, signature, etc., though provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the ad-mitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or, in other words, unsatisfactory and dangerous procedure and the desired course should be to go for microscopic enlargement and expert advice since the science of examination of signature, writing, etc. for determination of similarity has advanced enough and it has reached to the stag, of accuracy and certainty as well as expertise skill is also available."
Considering the facts and circumstances of this case we are of the opinion that the disputed signature of the defendant No. 1 in the alleged bainapatra-the exhibit-1 should be examined and com-pared with some admitted signatures of the defendant No. 1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate court below.
The appellate court will send the alleged bainapatra along with some admitted signatures of the defendant No. 1 to a hand writing expert for his opinion as to the genuineness of the disputed signatures of the defendant No. 1 in the alleged bainapatra-the exhibit-1 and after receiving the hand writing expert's opinion the appellate court below will dispose of the appeal afresh in accordance with law. …Shawkat Hossain(Md.) =VS= Golam Mohammad, (Civil), 2020 (1) [8 LM (AD) 51] ....View Full Judgment

The Companies Act 1994
Section 43 r/w
The Evidence Act
Section 73
We note from the impugned judgement that the learned Judge of the Company Bench compared the signature of the petitioner (respondent No.1 herein) appearing on Form-117 dated 8.10.2007 with those of his signatures appearing on other documents on record, including the Memorandum of Association. This is well within the jurisdiction of the learned Judge under the provisions of section 73 of the Evidence Act. In such circumstances, we cannot but hold that the claim of the present respondent No.1 is established and that the Company Bench of the High Court Division came to a correct finding in allowing the petition for rectification of shares. …Reza Bin Rahman =VS= A.T.G. Mortaza, [7 LM (AD) 8] ....View Full Judgment

Negotiable Instruments Act, 1881
Section 138
Code of Criminal Procedure
Section 561A
Evidence Act
Section 73
Without issuing any Rule has given full relief— For ensuring the ends of justice to seek expert opinion regarding the signature contained in the impugned cheque for proper and effective disposal of the case— The High Court Division without issuing any Rule has given full relief to respondent No.2 herein by disposing of the application filed under section 561A of the Code of Criminal Procedure and as such violated the settled principle of natural justice which is not permissible in law. —There is no doubt that Court is the expert of all experts. Even though since respondent No.2 prayed with a specific prayer for getting the signature on the cheque and the acknowledgement in the pad with his specimen signature kept in the Bank examined by hand writing expert, it would be wise, safe and sound to leave the matter of such examination to the expert and ask for report by scientific process or method as has been developed much better than before.
In the facts and circumstances as stated above and since the examination of the witnesses has been completed, Appellate Division is of the view that if the trial Court finds it necessary for ensuring the ends of justice to seek expert opinion regarding the signature contained in the impugned cheque for proper and effective disposal of the case then it shall be at liberty to ask for an expert opinion. —The impugned judgement and order of the High Court Division is set aside. However, the trial Court is at liberty to examine the disputed signature in the cheque in question and the acknowledgment given in the pad along with the specimen signature of the accused kept in the Bank as per the provision of section 73 of the Evidence Act. .....Md. Amam Hossain Milu =VS= The State, (Criminal), 2024(1) [16 LM (AD) 608] ....View Full Judgment

Comparison of signature­– when direction for comparison is not called for ­the case is one for eviction and not for determina­tion of title between the competing parties. Profulla Chandra who is sought to be summoned for his specimen signature was not present before the Court either as a witness or in any other capacity. In the facts of the case the question of directing him to give his specimen signature does not arise. BIWTC vs Nazma Flour Mills Ltd 43 DLR (AD) 105.

The section permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous. Ishaque (Md) vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.

In view of the provision of section 107(2) of the Code the High Court Division was competent to compare the signature of the defendant in the 'bainapatra' with his available signatures and, as such, was in error in sending back the case for the said purpose to the trial Court. Aftab Ali (Captain Retired) vs SM Kutubuddin 56 DLR (AD) 117.

The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

Evidence Act, 1872
Sections 73, 111, 114(g)
Specific Relief Act, 1877
Section 12
The alleged bainapatra was not executed by Manoda Sundari out of her free consent rather her thumb impressions were obtained under undue influence– Specific performance of contract– Appellate Division would like to appreciate the finding of the trial Court to the effect that the suit property is the last resort of defendant No.1 and only source of income which extent only abode to live and in case the plaintiff (respondent) gets the decree, defendant No.1 will have no other alternative but to be ousted from the suit premises and to stand on the street under the open sky and to die because of starvation. On the other hand, non-performance of the contract would involve no such hardship on the part of the plaintiff (respondent). To turn to the findings of the Appellate Court below as well as those of the High Court Division, this Division finds that those are full of non-consideration and mispresentation of the aforesaid facts and circumstances and evidence on record, rather this Division is inclined to approve the finding of the trial Court. This Division is of the opinion that the specific performance in the case would give the plaintiff an unfair advantage over the defendants and as such, it is a fit case where the decree for specific performance should not be granted as a matter of course. ...Rangeo Rani Chowdhury =VS= Abul Kashem, (Civil), 2021(2) [11 LM (AD) 585] ....View Full Judgment

Companies Act [XVIII of 1994]
Section 115 and 350 read with
Evidence Act [I of 1872]
Section 73
In the light of the expert report with regard to the thumb impression appearing on the document of transfer of shares and considering the fact that the document prima facie appears to have been forged, the Appellate Division directs Mohammad Mehdi Hasan, Deputy Registrar, Supreme Court of Bangladesh to lodge a complaint, before a Magistrate of the first class having jurisdiction, against the appellants, namely Reza Bin Rahman and Abdul Wahab Azad in terms of section 195 (1)(c) of the Code of Criminal Procedure for committing an offence punishable under sections 471/475/476 of the Penal Code.
The Appellate Division is of the view that since a thumb impression of A.T.G. Mortaza (respondent No. 1 herein) appears on the disputed transfer form, the point in issue would be more conclusively decided if the thumb impression appearing on Form-117 is compared with that of A.T.G. Mortaza taken in court in the presence of the learned Advocates of both the sides. It is noted that the present respondent No. 1 had filed an application in Court on 05.02.2017 with a prayer for production of the original Form 117, by which it is alleged that the present respondent No. 1 transferred his 2,27,167 shares in Synthetic Yarn Ltd., and thereafter to obtain a report from the CID of Police upon examination and comparison of the signature and thumb impression of the present respondent No. 1 with those appearing on the instrument of transfer (Form 117). The Appellate Division directed the C.I.D Dhaka to compare the specimen thumb impressions of A.T.G. Mortaza taken in Court with the one by which he is alleged to have transferred his shares to the present appellant No. 1 and to submit report within one month. A report from the C.I.D. Dhaka under Memo No. ফরেনসিক ল্যাবরেটরী (ঢাকা) ফিংগারপ্রিন্ট ব্যুরো/এফপি ০২-০৪৪৭-২০১৮/২৮২২/২০১৮ তারিখঃ ১৫/১০/২০১৮ খ্রিঃ shows that the thumb impressions of A.T.G. Mortaza taken in court do not tally with the thumb impression appearing on the share trans¬fer Form-117 dated 08.10.2007 by which he is alleged to have transferred his shares to Reza Bin Rahman. The finding is as follows: “মতামত গৃহীত দলিলপত্রে থাকা আংগুলের ছাপগুলোকে উল্লেখিত প্রয়োজনীয় বৈজ্ঞানিক যন্ত্রপাতির সাহায্যে তুলনামূলক পরীক্ষা করে, পরীক্ষালব্ধ ফলাফলের ভিত্তিতে নিম্নরূপ মতামত প্রদান করা হলো।FORM-117, INSTRUMENT OF TRANS¬FER OF SHARES. NAME OF THE COMPANY-SYNTHETIC YARN LTD এর TRANSFER NO. 03 সংক্রান্তে প্রদত্ত ক চিহ্নিত আঙ্গুলের ছাপটি, গত ইং ০৭/১০/২০১৮ তারিখ হলুদ বর্ণের কার্ট্রিজ কাগজে নেয়া এটিজি মরতুজার ডান ও বাম হাতের বৃদ্ধাঙ্গুলের নমুনা ছাপপত্রে থাকা ছাপগুলোর সাথে মিল নেই।ʺ In such circumstances, the Appellate Division can¬not but hold that the claim of the present respondent No. 1 is established and that the Company Bench of the High Court Division came to a correct finding in allowing the petition for rectification of shares. In view of the above, the Appellate Division finds no merit in this appeal which is accordingly dismissed. Reza Bin Rahman and others -Vs.- A.T.G. Mortaza and others (Civil) 2019 ALR (AD) Online 101 ....View Full Judgment

It is well settled that Section 73 of the Evidence Act permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous. Zohra Khatoon & Ors. Vs. Ekamul Haque Chowdhury & Ors. 10BLT (AD)-171

Comparison of handwriting by Court—Whether conclusion arrived at by comparison of hand writing or signature by the Courts below can be interfered with by the High Court Division in Second Appeal — Comparison of signature with admitted signature is a question of fact — High Court Division is not to interfere with the conclusion of the First Appellate Court on such question — Comparison of signature is a perfectly legal mode of proving hand-writing and, however inconclusive such proof may be, it cannot be considered as an error of law to base a conclusion on such proof alone — High Court in second appeal is not competent to set aside a finding based on such method — Code of Civil Procedure, l908(V of 1908) S. 100 (repealed). Abdul Matin Chowdhary Vs. Chapala Rani Sen and others; 5BLD (AD) 172

Entries in the Birth and Death Register are evidence of age—
Entries of Birth and Death Register maintained under the law are public documents and primafacie evidence of the age of the person concerned. Abdul Rahman Vs. Upendra N. Majumdar. (1952) 4 DLR (HC) 237. Keramat Alt Vs. Md. Yunus (1963) 15 DLR (SC) 120.

read with Transfer of Property Act, 1882 Section- 123
It is the case of the respondent that the deed of gift has been registered. The production of the original deed of gift by the donee and other documents such as mutation paper, municipal record would have indicated that the same has been acted upon. But neither the original deed of gift nor the original lease deed of Dr. Ansari nor any mutation paper nor any municipal record have been procured to prove the claim of the respondent in view of the aforesaid we hold that the High Court Division Misdirected itself in holding that when there was registered deed of gift the respondent has a genuine and strong claim over the property. Bangladesh & Anr. Vs. Mrs. Shirely Anny Ansar 9BLT (AD)-185

As to presumption of correctness of document— Bengal Tenancy Act, 1885— Section 103B- Presumption of record of rights-State Acquisition and Tenancy Act, 1950— Section 144A—
Presumption of records of rights— Entries in the record of rights as provided under section 103B and 144A shall be presumed to be correct until such presumption is rebutted on establishing the contrary. Ajufunnessa Vs. Sufar Mia (1978) 30 DLR (SC) 41.

In terms of section 76(6) of the Evidence Act the deed of conveyance dated 19-8-1965 may be proved by producing the original, or by a copy thereof certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of Bangladesh Consul or diplomatic agent, that the copy has been duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. Section 79 of the Evidence Act provides that the Court shall presume such certified copy as genuine. Such certified copy of the said deed of reconveyance as produced by the appellant was taken into 'consideration by the Appellate Division as idditional evidence. Rupali Bank Ltd and another vs Shawkat Am Salauddin 10 BLC (AD) 14.

A foreign judicial record is a public document–
A public document may be proved by production of the original or by a certified copy under section 77 or in the manner prescribed in section 78. A foreign judicial record is a public document and may be proved by a copy certified in the manner prescribed by sections 78(6) and 86 of the Evidence Act. Reference in this connection is Haranund Chetlangia V. Ram Gopal Chetlangia, 27 IA 1 (PC) and AIR 1964 SC 538. .....RAJUK =VS=Manzur Ahmed & Others, (Civil), 2016-[1 LM (AD) 1] ....View Full Judgment

Duplicate copy of the Certificate– The authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan–
Learned Counsel wanted to give an explanation to the effect that the petitioner applied for a duplicate copy earlier but he did not receive the same until November, 2015. This claim has no basis at all since the alleged certificate was issued in 2012. More so, there is no statement at all in this regard in his application. Assuming that he applied earlier for duplicate copy of the certificate it was allegedly issued on 22nd May, 2012. There was no explanation why he did not produce it prior to 16th November, on which date, he filed it in the section. Therefore, no reliance could at all be attached on this certificate - it is a forged document which is apparently created for confusing this Court. Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan. (Para–07); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 571] ....View Full Judgment

A registered document carries presumption of correctness of the endorsement made therein–One who disputes this presumption is required to dislodge the correctness of the endorsement. Shishir Kanti Pal and others vs Nur Muhammad and others 55 DLR (AD) 39.

Code of Criminal Procedure [V of 1898]
Sections 164, 364 read with
Evidence Act [I of 1872]
Section 80
As the confessional statements of the accused were recorded in accordance with the provision of section 164 and 364 of the Code of Criminal Procedure and those were signed by the confessing accused as well as by the Magistrates, the court shall presume under section 80 of the Evidence Act that the documents are genuine and the statement as to eh circumstances under which it was taken by the Magistrate are true and confessions were duly taken. The State -Vs- 1. Md. Nasiruddin @ Anik (Criminal) 2019 ALR (HCD) Online 275 ....View Full Judgment

Presumption as to confession —Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the facts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to—There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In this particular case it is difficult’ to deny accused appellants an opportunity to cross—examine the Magistrate who allegedly recorded their statements. Babul Vs. State 42 DLR (AD) 186.

Non-reading of the material evidence and misconstruction of any evidence on record affecting the merit of the cases– Appellate Division holds the view that the finding of the learned Judge of the Single Bench of the High Court Division as well as the appellate Court below are shockingly perverse and those are vitiated by non-reading of the material evidence and misconstruction of any evidence on record affecting the merit of the cases. Thus, it appears that the learned Judge of the Single Bench of the High Court Division without assessing the evidence on record arrived at a wrong decision and thereby affirmed the finding of the appellate Court below which is liable to be set aside. Thus, the appeal is allowed without any order as to costs and the impugned judgment and order delivered by the learned Judge of the Single Bench of the High Court Division as well as the judgment of the appellate Court below are set aside and the judgment and order passed by the trial Court is restored. .....Khalid Bin Nazrul Prince(Md.) =VS= Mohammad Bazlur Rahman Chowdhury, (Civil), 2022(1) [12 LM (AD) 209] ....View Full Judgment

High Court Division wrongly applied the provisions of section 80 to admit into evidence a statement of a witness recorded under section 164 during investigation stage and not in a judicial proceeding. Hossain@Foran Miah and others vs State 56 DLR (AD) 213.

Non examination of the Magistrate recorded the confessional statement- the no requirement under the law that Magistrate should be examined the Gf shall presume the document to be gen and that the statement was duly taken. Abdul Khaleque Mir Vs. The State 2 BLT (AD)-172

Sale deed in the absence of the contrary can not be treated as mortgage deed. Feroja Majid Vs. J.B.Corporation. 39 DLR (AD) 78.

A Power of Attorney— Execution, authentication—presumption— rebuttal—
A power of attorney duly executed a'nd authenticated has a presumption of correctness as contemplated under section 85 of the Evidence Act and it does not require further proof. But this presumption is rebutable and the onus of rebutting the presumption lies upon him who challenges its genuineness. Salema Khaiun Bibi Vs. Hemangini Chose Daslidar (1978) 30 DLR (SC) 99.

Admissibility of judgment of foreign country without authentication of concerned foreign office—
Certified copies of judgment of courts of foreign countries (India) are not admissible in evidence unless the same is certified to be genuine by the representative of the foreign office of Pakistan (now Bangladesh) located in the foreign country (India). M/s. Bengal Friends & Co. Vs. M/s. Cour Benode Saha (1969) 21 DLR (SC) 357.

From Ext.3 it transpires that the contract on the basis of which the suit was filed in the Munsif Court, Krishananagar was written by one Nagendra Nath Ghose and the attesting witnesses to the contract belonged to the members of Nagendra Nath Ghose’s community and all of them were citizens of India. But the plaintiff in his evidence in the present suit stated that one Azimuddin Biswas was scribe of the agreement for exchange and Moksed and Moizuddin were attesting witnesses.
Thus it appears that the plaintiff instituted the present suit on the basis of a different contract which he could not prove by adducing either documentary or oral evidence and the contract on the basis of which Shibnath Ghose and others filed Title Suit No.17 of 1961 in the Court of Munsif, Krishananagar, as it appears, was on the basis of a different agreement. Md. Abdul Mannan & Ors. Vs. Abdus Samad Mondal & Ors. 14 BLT (AD)198

Record of rights:
Record of right is evidence of present possession and registered kabala is an evidence of title. The registered document will prevail over the records of rights and would remain in enforce until and unless, such kabala is cancelled by an appropriate civil court. The registered deed dated 13.05.1965 is an old document more than 30 years produced from proper custody presumed under Section 90 of the Evidence Act that it was duly executed and genuine documents. ...Md. Rofiqul Islam & ors Vs. Md. Khalilur Rahman & ors, (Civil), 8 SCOB [2016] HCD 29 ....View Full Judgment

30 years old documents–
The plaintiffs have been successful in proving their genealogy of title and possession in the suit land and since the defendants failed to challenge the documents relied upon by the plaintiffs and also failed to prove their case of title and possession, it can clearly be held that the defendants have no title and possession in the suit land. On the other hand the plaintiffs could prove the title of Yeasin Hazi, the C.S. recorded tenant and thereafter devolution of title and possession upon his daughter Duburunnessa who in her turn transferred the same to Khodeza Begum by two registered documents in 1955 and 1956 which are more than 30 years old documents and relying on such registered documents Khodeza Begum’s name being recorded in the S.A. record and thereafter Zumuruddin, the predecessor of the plaintiffs having purchased the same got his name mutated in place of Khodeza Begum in the office of the Government, and after his death his heirs, the plaintiffs having got their names mutated, the title and possession of the plaintiffs are found to be proved. .....Bangladesh Railway =VS= Jashimuddin, (Civil), 2018 (2) [5 LM (AD) 58] ....View Full Judgment

The benefit of the presumption as to documents more than 30 years old applies to any document and not necessarily only to registered documents– The suit was filed on 8-6-1979, and, therefore, the document was more than 30 years old at that time. The benefit of the presumption as to documents more than 30 years old applies to any document and not necessarily only to registered documents. Hence, the presumption under section 90 of the Evidence Act is applicable in the case of the amalnama of the year 1926. The appellate Court did not reverse the finding of the trial Court with regard to the amalnama being accepted as genuine as it was a document more than 30 years old.
Appellate Division notes from the evidence on record that the plaintiffs claimed that the amalnama and dakhilas, were claimed by them to be forged. But no step was taken by the plaintiffs to prove that those documents were indeed forged. When any document is produced by a party to a suit and marked exhibit, especially when a presumption under the Evidence Act is attracted by that document, it is incumbent upon the contesting party to lead evidence in order to substantiate the claim that the document is a forgery or is not genuine. In this context this Division is inclined to the view that the amalnama and dakhilas were correctly considered by the trial Court in finding title and possession in favour of the defendants. This Division does not find any illegality or infirmity in the impugned judgment and order of the High Court Division, and accordingly, the appeal is dismissed without, however, any order as to costs. .....Asgor Ali =VS= Noorjahan, (Civil), 2022(1) [12 LM (AD) 54] ....View Full Judgment

Nadabi Patra– The age of Nadabi Patra document is more than 30 years which can be admitted in evidence without any formal proof– Heaving considered those facts, circumstances as well as evidence and other materials on record, Appellate Division led to hold that the learned Judge of the trial Court rightly dismissed the suit on evaluating the evidence and assessing the spirit of the suit, but the appellate Court below as well as the High Court Division wrongly decreed the suit. As such, the impugned judgment as well as the judgment of the appellate Court below is liable to be set aside and thereby also the judgment of the trial Court is liable to be restored.
It is true that a nadabi patra cannot confer title in favour of any party. But in the instant case, nadabi patra has been created as result of a mediation proceeding only in that case when the plaintiff (respondent) disclosed that he has lost the two signed stamp papers only as an evidence of relinquishment with ensuring newly transaction of taka 14,500.00 and soon after such transaction, the kabala dated 01.10.1975 and 21.08.1978 became out and out sale deed. The age of such document is more than 30 years which can be admitted in evidence without any formal proof and the Court may presume all the formalities of such document as to its writing, signature were duly made as has been provided in section 90 of the Evidence Act. .....Shamsul Huq Paik(Md.) =VS= Arab Ali Dewan, (Civil), 2022(1) [12 LM (AD) 115] ....View Full Judgment

Once such a document more than 30 years old is produced from proper custody Section 90 of the Evidence Act entitles the Court to presume that it is a genuine document. A.D.C. (Revenue) Vs. Md. Reazuddin PK & Ors 8BLT (AD)-185

That the legal presumption of 30 years old document by virtue of provision of section 90 of the Evidence Act is rebuttable. The mere fact that a document is 30 years old does not make it immune from attack by the other side on the question of its genuineness. Md. Biseruddin Sardar & Ors Vs. Md. Tofazzal Hossain Biswas & Ors. 15 BLT(AD)47

We are surprised that the Courts below did not take these rent receipts into any consideration at all and which are relevant documentary evidences. Instead, as is obvious from their findings, the Courts below have erroneously and unlawfully relied upon oral evidences bypassing the documentary evidences and which they are barred from doing under the law. Section 91 and 92 of the Evidence Act expressly bar the reliance upon oral evidences where documentary evidences are there on record. ...Syed Aynul Akhter Vs. Sanjit Kumar Bhowmik & ors, (Civil), 4 SCOB [2015] HCD 127 ....View Full Judgment

In pre-emption case oral evidence contrary to the contents of the sale deed not admissible—
Contents of the deed of transfer can not be contradicted or varied by oral evidence. In a preemption case it is the transfer which is sought to be transferred by way of pre-emption. Joynal Abedin Molla Vs. Aliar Rahman and others. 3 BLD (AD) 105.

Whether a sale deed can be held to be a mortgage deed on the basis of oral evidence—
It is an established rule of evidence that oral evidence is inadmissible for the purpose of construing the terms of a document or of ascertaining the intention of the parties thereto. Oral evidence of witness that a particular deed is not a sale deed but a mortgage deed is clearly inadmissible. Mrs. Firoza Mazid and another Vs. Jiban Bima Corporation 7 BLD (AD) 124.

Kabala when out and out a sale deed—
Section 91 of the Evidence Act does not put any bar on challenging the character of the disputed document as to whether it is a deed of out and sale or an exchange. In the absence of any mention in the kabala deed about exchange or compromise the instrument of transfer can not be construed as one of exchange simply because the ownership of the land was not transfered for another land. Abu Hosan Vs. Basir Uddin and others 11 BLD (AD) 231, 12 BLD (AD) 191.

As per the law enunciated in the sections of 91 and 92 of the Evidence Act, 1872 documentary evidences shall prevail over oral evidences.–– The appellants-defendants produced certified copies of the registered deed which is almost 40 years older in terms of time of execution of the respondents-plaintiffs, this long gap cannot be filled in only by the description in the plaint and that too were not proved. .....Abdul Gaffar =VS= Md. Abdul Miah, (Civil), 2022(2) [13 LM (AD) 40] ....View Full Judgment

The Evidence Act, 1872
Sections 91 and 92
Non-Agricultural Tenancy Act
Section 24
Pre-emption– It is a settled principle of law that in exercising revisional jurisdiction the Court is required to identify any misreading or no-consideration of the evidence on record, or misconstruction of documents. The High Court Division failed to do so. Appellate Division is of the view that the finding of the High Court Division that the exchange is unequal, is not justified in the facts and circumstance of the case. The pre-emptee has given up a bigger quantum of land in exchange for a smaller quantum of land due to his necessity. Appellate Division does not find anything untoward in the transaction of exchange between the pre-emptee-opposite-party No. 1 and opposite-party No. 2. Moreover, in the absence of any allegation of fraud etc, as mentioned in proviso (1) of section 92 of the Evidence Act, the recital of the document cannot be contradicted by oral evidence as provided by sections 91 and 92 of the Evidence Act. In the absence of any fraud, intimidation, illegality etc. the document will speak for itself. The contents of the document will speak of the truth of the agreement reached by the parties thereto. The judgment and order by the High Court Division is set-aside. .....Shahed Ali (Md) =VS= Abdul Hafiz, (Civil), 2022(1) [12 LM (AD) 217] ....View Full Judgment

What sections 91 and 92 provide–It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing terms of a document or of ascertaining the intention of the parties thereto. Feroza Majid vs JB Corporation 39 DLR (AD) 78.

Section-91 of the Evidence Act is about the manner of proof of a document which has been reduced to the form of a document and which is required by law to be reduced to the form of a document. The document itself has to be proved, or where secondary evidence is admissible, secondary evidence of its contents may be proved. The terms of the document cannot be proved by any other mode of proof. The impugned kabala has been proved under Section-91.
Section-92 of the Evidence Act provides that when a document described in Section- 91 has been proved according to Section-91, “no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms.” Tambia Khatun Vs. Rafiqullah 8BLT(AD) -230

Oral evidence is inadmissible to vary the contents of document but in the present case not challenge the contents of the documents but nature of transaction which object was to defeat the statutory right of the co-sharer. Therefore, the co-sharer challenged the nature of the transfer in that view of the matter the facts and circumstances of the present case is hit but the proviso (1) of the section 92 of the Evidence Act, 1872.
The High Court Division held that section 92 does not preclude a party from showing that the writing was not really the contract between the parties, but it was only a fictitious or colourable device which cloaked something else. In such situation of a particular case oral evidence is admissible to show that an agreement was only a sham or nominal transaction and was not intended to be acted upon or to show that a written agreement for the conveyance of property was only a fictitious exchange to defeat and infringe the statutory right to other. Abdul Hakim Siddique -Vs.- Mst. Shakhina Bewa and others (Civil) 2019 ALR (HCD) Online 102 ....View Full Judgment

When a document is meant merely on an informal memorandum of transaction and not as a document embodying disposition of property, oral evidence is not excluded.
The High Court Division is of the view that there is no bar in the section 91 and 92 of the Evidence Act to adduce the parol evidence to show notwithstanding the recital of exchange not to its true perspective nature and object in a document. Abdul Hakim Siddique -Vs.- Mst. Shakhina Bewa and others (Civil) 2019 ALR (HCD) Online 102 ....View Full Judgment

Written registered document cannot be altered of varied by oral evidence– Written registered document cannot be altered of varied by oral evidence and also that oral evidence is inadmissible for the purpose either of construing terms of a document or of ascertaining the intention of the parties thereto. .....Eakubbar Shaikh =VS= Abdul Khalek Shaikh, (Civil), 2022(1) [12 LM (AD) 184] ....View Full Judgment

In view of the provision of section 92, a deed of sale cannot be treated as a mortgage–deed and intention to treat as a mortgage deed cannot also be permitted. Feroza Majid vs JB Corporation 39 DLR (AD) 78.

Oral extraneous evidence to contradict the terms of the contents of a document is inadmissible under section 92 of the Evidence Act. Feroza Majid vs JB Corporation 39 DLR (AD) 78.

There is nothing in section 92 of the Evidence Act to prevent the admission of oral evidence to prove that a mortgage has been discharged partly by payment and partly by release of debt. Tafzal Ahmed Contractor vs Abdur Rahim and others 48 DLR (AD) 94.

Specific performance of contract to execute the sale deed– We find that the High Court Division correctly observed that the appellate Court admitted into evidence the bainanama of defendant No. 1 but did not at all consider the same and against such non-consideration the defendants did not take any step. We also find it curious that the bainanama of defendant No. 1 having been allegedly executed in the year 1983 the agreement was not put into effect until almost 10 years later, and there was no explanation why such a delay occurred. In any event the lower appellate Court in allowing the appeal of the defendants in the suit did not take into consideration the alleged bainanama of the year 1983. Furthermore, the High Court Division correctly referred to the provision of section 92 of the Evidence Act and held that the oral and extraneous evidence contradicting the contents of a written instrument is not admissible. We do not find any illegality or infirmity in the impugned judgement and order of the High Court Division. Accordingly, the appeal is dismissed, without however any order as to costs. ...Gopal Goyala =VS= Molina Rani(Sree), (Civil), 2020 [9 LM (AD) 9] ....View Full Judgment

State Acquisition & Tenancy Act, 1950
Section 96(10) r/w
The Evidence, Act,1972
Section 92
The High Court Division did not at all take into consideration the full purport of section 96(10) of the State Acquisition and Tenancy Act, 1950 and that a pre-emption case under Section 96 of the State Acquisition and Tenancy Act depends on the very nature of transaction i.e. whether a sale or a exchange and further the High Court Division failed to consider that the appellate Court, after thorough discussion of the evidence on record both oral and documentary, correctly came to the finding the transaction was not an out and out sale but an exchange which is not pre-emptible under Section 96(10) of the State Acquisition and Tenancy Act, 1950.
It further appears that the High Court Division failed to grasp the legal aspect to the effect that under section 92 of the Evidence, Act,1972 no evidence is admissible to vary the contents of the documents by any oral evidence and oral or extraneous evidence to contradict the terms of the contents of document is inadmissible. In view of section 92 of the Evidence Act a deed of exchange which is not pre-emptible under section 96 of the E.B. State Acquisition and Tenancy Act cannot be treated as a deed or sale and intention to treat a deed of exchange as a deed of sale is not permitted. The judgment of the High Court Division cannot be sustained and liable to be set aside. .....Nur Mohammad Mondal =VS= Mohammad Golam Rabbani, [5 LM (AD) 390] ....View Full Judgment

An estoppel arises when a representation is acted upon as true by the party to whom it is made. Generally the elements of estoppel are the representations made under circumstances which amounted to an intentional causing belief in another. The principle which is incorporated in section 115 of the Evidence Act is a simple and equitable doctrine which lays down that if a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person that other person will not be allowed in any proceedings between himself and the other person to go back upon it to the detriment of the other party. The rule is that the party will not be allowed to go behind the facts admitted in writing. If a person has by his conduct permitted the other party to believe that the agreement was other than it is embodied in the document, and has caused him to act upon that belief, he can not fall back upon section 92 of the Evidence Act and thereby escape the consequences of his own action.
In this case the representation of the writ petitioner is so proximate and not the remote cause of leading the writ respondents to act to their prejudice. The principle is that a party can not both approbate and reprobate; he can not say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say that it is void for the purpose of securing some further advantage. When the writ petitioner by executing an agreement assumed the liability, he is precluded from denying the same. ...The Privatization Commission =VS= Golam Mostafa, (Civil), 2021(2) [11 LM (AD) 534] ....View Full Judgment

Section— 92 Proviso (2)
Although under Section 92 of the Evidence Act oral evidence is inadmissible for the purpose of contradicting, varying, adding to, or subtracting from the terms of a written contract, Proviso (2) to Section 92 provides that the existence of any separate oral agreement as to any matter, on which the document is silent and which is not inconsistent with its term, may be proved. Tafzal Ahmed Contractor Vs. Abdur Rahim and others 16 BLD (AD) 160.

According to the provisions laid down in sections 101 and 103 of the Evidence Act, the entire onus was upon the plaintiffs to prove that the signatures given by Rustom Howlader in all the documents are false because it is their specific case that Rustom Howlader never appeared in public due to his serious ailment and indisposition and blindness and even he was to be taken to the toilet by somebody else and remained bed ridden from 1980 until his death. Plaintiffs had to take resort to expert opinion in order to discharge their initial onus under section 101 of the Evidence Act to prove that those impugned documents were executed not by Rustom Howlader but by an imposter with a scheme to grab the property and Rustom Howlader was completely unable to perform his own affairs due to his serious illness. Law says when the initial onus is discharged by the plaintiff the onus then shifts upon the defendants to show the contrary. ...Sirajul Haque Howlader and ors Vs. Zulekha Begum & ors, (Civil), 17 SCOB [2023] HCD 199 ....View Full Judgment

Onus of proof- Upon whom lies- In a suit for specific performance of contract—
In a suit primarily the onus to prove his own case lies upon the plaintiff. The onus of proof varies and shifts on the other side according to the varying facts and circumstances of different cases. In a suit for specific performance of contract where the signature of the defendant in the deed is proved by the plaintiff his onus is satisfactorily discharged. And on the contrary where the defendant admits his signature but alleges that the same was obtained by threat, coercion and intimidation, then the onus shifts upon the defendant to prove the allegations of threat and intimidation. When the defendants failed to discharge this onus the deed in question stands proved. Jabed Ali Mondol and others Vs. Jamini Kanta Day arid others. 7 BLD (AD) 156.

Onus to prove parentage-
The onus is on the plaintiff to prove that his father was son of a particular father. When oral evidence are inconclusive, resort may be had to the testimony of the documents dealing with the property of the alleged grandfather. The plaintiff never raised any claim earlier against any transfer of the properly and never he was in possession of those properties in suit and consequently in the facts and circumstances the plaintiff failed to prove that his father Nagar xvas the son of Gour Majhi. Sree Gopal Chandra Mondol Vs. Lasman Dasi and others. 7 BLD (AD) 107.

Burden of proof— Plaintiff to prove his own case—
Burden of proof lies upon the person he who seeks the court to believe the existence of a particular thing. Plaintiff has to prove his own case and can not stand on the weakness of the defence. Ajafunnessa Vs. Safar Mia (1978) 30 DLR (SC) 41.

Burden of proof– When any document like solenama is executed by an age old and sick person burden lies on the person who claims benefit under the document to establish that the document was executed by him on his own accord. .....Khalid Bin Nazrul Prince(Md.) =VS= Mohammad Bazlur Rahman Chowdhury, (Civil), 2022(1) [12 LM (AD) 209] ....View Full Judgment

The initial onus lies on the plaintiff to prove his title. [32 DLR (AD) 29 distinguished]. Abani Mohan Saha vs Asstt. Custodian 39 DLR (AD) 223.

When both the parties lead evidence question of onus is out of place and the matter is to be decided on the evidence led by the parties. Ishaque (Md) vs Ekramul Haque Chowdhury and others 54 DLR (AD) 26.

Defendant though pleaded marriage of Monwara with Amir Ali yet the onus of proof is not on him (but on the plaintiff). Khorshed Alam vs Amir Sultan 38 DLR (AD) 133.

Plaintiff failed to prove that defendant is the son of the prostitute Baramoni––Court below shifted the onus on the defendant to prove marriage of Monwara with Amir Ali contrary to law. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133.

Plaintiff failed to establish that there was no marriage between Amir Ali and Monowara and also that Khorshed Alam is the son of Baramoni–Again, all the courts below worked under a misconception of law as to the question of onus of proof and they placed the onus on the defendant about Monowara's marriage–Which was clearly for the plaintiff to discharge. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133.

Plaintiff failed to discharge the onus of proof that defendant I was the son of Baramoni, a prostitute and was adopted by Amir Ali–Plaintiff did not examine Baramoni to prove his case–Appellate Court's finding that Baramoni was not examined as witness by defendant which shows that defendant I was not the son of Amir Ali. This conclusion is unwarranted and contrary to all presumptions of law built up over the last 150 years. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133. ....View Full Judgment

Evidence Act, 1872
Sections 101 & 103
State Acquisition and Tenancy Act, 1950
Sections 89, 96
The High Court Division while exercising its revisional jurisdiction is competent to reverse the judgement of the courts below when the same has been made either upon mis-reading or non- consideration of the material evidence–– The High Court Division accepted the evidence of OPWs regarding the point thatthe transfer was within the knowledge of the petitioner since OPW-1, Ekram Hossain, who is also full brother of pre-emptor Motiar Rahman and OPW-2, Atiar Rahman, who is also full brother of pre-emptor Matiar Rahman and OPW-3, Karim Sheikh, Sister’s husband of the pre-emptor, all these OPWs testified in one voice that their father late Afsaruddin transferred the case land to the pre-emptee opposite party by a registered kabala dated 14/12/1995 within full knowledge of all his sons and daughters including the pre-emptor. The High Court Division while exercising its revisional jurisdiction is competent to reverse the judgement of the courts below when the same has been made either upon mis-reading or non- consideration of the material evidence and the said mis-reading and non-consideration of the evidence caused failure of justice [Habibullah (Md)-Vs-Sher Ali Khan and others, 57 DLR (AD) 55]. The High Court Division is empowered to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below [Masjid kacha Tank, Nahan-Vs-Tuffail Mohammed, AIR 1991 SC 455]. .....Matiar Rahman Bhuiyan =VS= Md. Ekram Hossain Bhuiyan, (Civil), 2024(1) [16 LM (AD) 1] ....View Full Judgment

Prosecution must prove the charge against an accused beyond any shadow of reasonable doubt– 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, Bangladesh, (Criminal), 2020 [9 LM (AD) 593] ....View Full Judgment

Burden of proof:
As regards the burden to prove the fact that the impugned deed was obtained from executants by misleading them, the trial court has held that the burden of proof lied upon the plaintiffs, since, the plaintiffs disowned the Nadabinama deed. The appellate court was of the view that, this burden lied on the defendants. Having considered the provisions of section 102 of the Evidence Act, 1872, in the light of the facts and circumstances of this case, I am of the considered view that the burden to prove genuineness of this disputed Nadabinama deed lied upon the defendants, once the genuineness of the said deed has been denied by the plaintiffs. It is the defendant, who want from the court to believe their case that the Nadabinama (deed of surrender) was a genuine deed and it is they would loss in the trial court if the deed was not proved to be genuine one. The law of evidence would not facilitate forgery by unlawfully putting the burden on the victims of forgery. Therefore, finding of the appellate court on this issue is correct. …Abedun Nessa Vs. Jaher Sheikh and others, (Civil), 16 SCOB [2022] HCD 37 ....View Full Judgment

Burden of proof—When fraud is alleged— Part of a document can not be challenged—
The burden of proof lies upon he who alleges the fraud. A document can be challenged as forged or fraudulent as a whole. Mo document can be partially challenged either as fraudulent or valid. Hussain Ahmed and others Vs. Sharifullah and others. 3 MLR (1998) (AD) 212

The Negotiable Instruments Act, 1881
Section 138, 140
The Evidence Act, 1872
Section 102
According to section 102 of the Evidence Act, 1872 the burden of proof is upon the respondent to prove that though she was the director of the company, the offence has been committed without her knowledge or that she was a non-executive director of the company and she was not involved in day-to-day affairs of the company etc.
The innocence of the respondent No.1, the director, has to be proved before the Court by adducing evidence and thus, the director, respondent No.1 has to face the trial. Only after taking evidence during trial if the director, respondent No.1 herein, is found that she was not to be a person-in-charge of the affairs of the company at the relevant time of the issuance of the cheque only then she may be exonerated from the charge. ...Phoenix Finance and Investment Ltd. =VS= Yeasmin Ahmed, [10 LM (AD) 522] ....View Full Judgment

Limitation is a mixed question fact and law which can be decided in the light of evidence on record. Afroz Rashid Vs. Fazlul Kartm. 40 DLR (AD) 79.

This observation of the Sub­Judge · was correctly made. The onus was not wrongly placed on the defendant. Contention of the appellant's Counsel regarding the question of limitation. The finding of the lower appellate Court cannot be construed as making of new case regarding the barga settlement. Limitation is a mixed question oflaw and fact after considering the evidence both oral and documentary. Afroz Rashid vs Fazlul Karim 40 DLR (AD) 79.

Burden of Proof and Onus Probandi –The plaintiff has produced not an agreement of sale but a receipt of earnest money, signed not by the owner of suit properties but by her son– The basis of his suit is an oral agreement, not Ext. 4 the receipt which is only a supporting evidence. The defendants have no burden to prove their alternative story with regard to the creation of Ext. 4. Al-Haj Ahmed Hossain vs Rejaur Rahman 42 DLR (AD) 225.

Plaintiff discharged his burden of establishing the fact that defendant sent the rent for the month of May, 1988 after June 15, 1988. It was requirement for the defendant to..: disprove the said fact, but he did not take any step to disprove the oral as well as documentary evidence produced from the side of the plaintiff in assertion of the fact that rent for the month of May, 1988 was sent by money order after June 15,' 1988. Bulbul Begum vs Md Sanwar Belal and anr 8 BLC (AD) 97.

In a civil proceeding both the parties have responsibility to prove their respective cases, although onus rests upon the plaintiff to prove his case but responsibility of the defendant is also there to substantiate his written statement’s assertion as per section 103 of the Evidence Act. But the courts below shifted the responsibility to prove the case entirely upon the plaintiffs which cannot be sustained. ...Hayetullah & ors. Vs. Abdul Khaleque & ors., (Civil), 10 SCOB [2018] HCD 309 ....View Full Judgment

Pre-emption case- left out party- subsisting interest—
In a pre-emption case the onus lies upon the pre-emptor-petitioner that the left out cosharer has no subsisting right of pre-emption as required under section 96(2) of the State Acquisition & Tenancy Act, 1950. Md. Abdul Jalil Vs. Durjan Ali alias Siddique Hossain and others. 1 BLD (AD) 241.

Burden of proving alibi in wife—killing case—It is true that the burden of proving a plea of alibi or any other plea specifically set up by an accused—husband for absolving him of criminal liability lies on him. But this burden is somewhat lighter than that of the prosecution. The accused could be considered to have discharged his burden if he succeeds in creating a reasonable belief in the existence of circumstances that would absolve him of criminal liability, but the prosecution is to discharge its burden by establishing the guilt of the accused. An accused’s burden is lighter, because the court is to consider his plea only after, and not before, the prosecution leads evidence for sustaining a conviction. When the prosecution failed to prove that the husband was in his house where his wife was murdered, he cannot be saddled with any onus to prove his innocence. State Vs. Mofazzal Hossain Pramanik 43 DLR (AD) 64A.

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

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

In a criminal case the accused are not required to set up their case in writing, such as a written statement of the defendant of a civil suit, nor are they required to give evidence to prove their innocence, or even to establish their pleas, except a special plea within the meaning of s. 105, Evidence Act, and it is entirely for the prosecution tD establish the guilt of the accused—The cardinal principle of criminal justice that the accused shall be presumed to be innocent until his guilt is proved shall be followed at all stages of the trial. Shah Alam Vs. State 42 DLR (AD) 31.

Section 105, Evidence Act casts a burden upon the accused to prove the existence of circumstances bringing the case within any special exception or proviso contained in any other part of the Penal Code. There has been complete failure on the part of the defence to prove those circumstances. Md. Abdul Majid Sarkar Vs. State 40 DLR (AD) 83.

Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Section 302
Evidence Act, 1872
Section 106
Although there was no eyewitness in support of the prosecution case, the burden cast upon the appellant to explain the death of his wife while she was in his custody has not been exonerated– In view of the facts that there is no previous record of any criminal activity of the appellant, he has two children who obviously care for him enough not to appear in Court to depose against him, and that the sentence of death would render his two children to become orphans, Appellate Division is inclined to commute the sentence of death to imprisonment for life. ...Golam Rabbani(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 422] ....View Full Judgment

It is by now well settled by numerous decisions of our superior Court that under section106 of the Evidence Act the accused is to explain the cause of death since the victim died while in his custody. In fact the evidence of the witnesses shows that the accused was found inside the locked room where the victim lay with injuries on her body and her hands and feet were tied up. Appellate Division finds from the evidence on record that no attempt was made by the accused to explain how the victim met her death while she was living with him in his room and found dead in his room in his presence. ...Nazrul Islam(Md.) =VS= Deputy Commissioner(DC), Dhaka, (Criminal), 2021(2) [11 LM (AD) 403] ....View Full Judgment

Section 106 No independent witness was examined by the Investigating Officer nor cited as witness in this case, thus creating doubt. The Appellate Division finds that it is true that a case where section 106 of the Evidence Act is applicable, i.e. when the victim was last seen with the alleged accused, the accused has a duty to explain how the victim died. However, in the instant case there is no independent corroborative witness with regard to the deceased being in the company of the accused in spite of the fact that the houses of the victim’s father and that of her husband are near to each other and they are surrounded by many other houses of persons who would be independent witnesses, but no independent witness was cited in the charge sheet or examined by the prosecution in support of the prosecution case. Moreover, the allegation of the victim having been killed by her husband on account of non-payment of dowry is belied by the fact that the victim was apparently killed after having been gang raped as indicted in the post mortem report and supported by the inquest report. The defence suggestion that the victim went out of her father’s house to watch a show at the local school or that she may have been taken out of her father’s house and raped and killed thereafter cannot be overlooked in view of the finding of the post mortem examination that the victim was gang raped. The fact of the victim having been gang raped is not commensurate with the prosecution claim that the accused, being the husband, killed his wife for dowry. The Appellate Division also note from the cross examination of P.W. 3 Md. Mofazzel Hossain, who is a brother of the informant that he stated ""আমার মেয়েকে অজ্ঞাত লোকে ধর্ষন করে মারিয়াছে আমি বলতে পারিবনা" (emphasis added) which is clearly prevarication, particularly in view of the fact that the post mortem examination report clearly indicates gang rape prior to murder. Accordingly, the criminal petition for leave to appeal is dismissed. .....The State =VS= Md. Akinur Rahman, (Criminal), 2016-[1 LM (AD) 537] ....View Full Judgment

Section 106 of the Evidence Act said “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. .....M.A.Kader =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 408] ....View Full Judgment

Burden of proof –
In most criminal matters, the burden of proof lies upon the prosecution to prove a charge against an offender, but in respect of spouse killing case, it has been established that the burden shifts upon the accused person. It is the responsibility of the accused to explain the cause for the death of his/her spouse if it is found that he or she died while in his/her custody or that they were staying jointly before the death. The High Court Division is of the view that with a view to giving legal safeguard in respect of such offences, sections 106 or 114 of the Evidence Act may be amended. Since the law is settled on the said issue, there is no reason for any amendment of the law. On the doctrine stare decisis if a decision has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts. This doctrine is explained in Corpus Juris Secundum: ‘Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed on similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable.’ So, there is no need for amendment to section 106 or 114 of the Evidence Act. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274] ....View Full Judgment

Burden of proving fact especially within the knowledge of any person—Alibi in a quasi-criminal proceeding
Even in a quasi-criminal proceeding if a plea of alibi is taken the burden to prove it is on the person who takes such a plea, because that fact is within his special knowledge. The petitioner had opportunities to prove his absence from the country since 1982 at the trial Court, the lower appellate Court and the High Court Division but he did not avail of the opportunities. Even before the Appellate Division the petitioner failed to produce any proof in support of his plea of alibi. Under such circumstances the petition merits no consideration. Md. Abdul Tahid alias Tahid Ulla Vs. Md. Kadaris All, 16BLD(AD)248

এই ঋণাত্মক দায় নীতিমালাটি প্রযোজ্য হওয়ার পূর্বে দুটি প্রাথমিক বিষয় রাষ্ট্রপক্ষকে যুক্তিসংগত সন্দেহ বহির্ভূতভাবে প্রমাণ করতে হবে। তা হলো মামলায় নিহত ব্যক্তিটি বা ভিকটিম আসামীর হেফাজতে ছিল এবং ঘটনার সময় ঘটনাস্থলে আসামী এবং ঐ ভিকটিম একত্রে ছিল। সেইক্ষেত্রে এটি যে তথাকথিত স্ত্রী হত্যাকান্ড (Wife Killing Case) নীতিমালা অর্থাৎ ঋণাত্মক দায় নীতিমালা প্রযোজ্য হবে। ...State Vs. Abdullah @Titumir @Titu, (Criminal), 18 SCOB [2023] HCD 20 ....View Full Judgment

ঋণাত্মক দায় ও নরহত্যাঃ
আমাদের বলতে দ্বিধা নেই যে, রাষ্ট্রপক্ষ তার কোনো সাক্ষ্য বা সাক্ষী দ্বারা প্রমাণ করতে সম্পূর্ণ ব্যর্থ হয়েছে যে, ঘটনার প্রাসঙ্গিক সময় এই মামলার ভিকটিম সালমা আসামীর হেফাজতে ছিল এবং ঘটনার দিন রাতে বা ঘটনার সময় তারা একত্রে ছিলু যেহেতু আসামীর এই ন্যূনতম উপস্থিতি প্রমাণ করতে রাষ্ট্রপক্ষ সম্পূর্ণভাবে ব্যর্থ হয়েছেন, সেহেতু এও বলতে দ্বিধা নেই যে, সাক্ষ্য আইনের ১০৬ ধারা অনুযায়ী এবং আমাদের উচ্চ আদালত কর্তৃক গৃহীত ও বিভিনড়ব সময়ে প্রণীত ঋণাত্মক দায়মূলক নির্দেশনা এই মামলার আসামীর উপর কোনোভাবেই বর্তাবে না। ...State Vs. Abdullah @Titumir @Titu, (Criminal), 18 SCOB [2023] HCD 20 ....View Full Judgment

যেখানে ময়নাতদন্ত প্রতিবেদনে নরহত্যাজনিত (Homicidal in nature) লেখা থাকেনা সেখানে পারিপার্শ্বিক অবস্থা দেখে আদালতকেই নির্ধারণ করতে হবে এটি নরহত্যাজনিত মৃত্যু কিনাঃ
স্বীকৃত যে, ময়নাতদন্ত প্রতিবেদনে (প্রদর্শনী-৭) নরহত্যাজনিত (Homicidal in nature) কথাটি উল্লেখ করা নেই। এ প্রসঙ্গে বিজ্ঞ ডেপুটি অ্যাটর্নি জেনারেল বলেন, যেখানে ময়নাতদন্ত প্রতিবেদনে নরহত্যাজনিত (Homicidal in nature) লেখা থাকেনা সেখানে পারিপার্শ্বিক অবস্থা দেখে আদালতকেই নির্ধারণ করতে হবে এটি নরহত্যাজনিত মৃত্যু কিনা। আমরা তার সাথে সম্পূর্ণভাবে একমত এবং আমরাও পারিপর্শ্বিক বিভিন্ন অবস্থা এবং সাক্ষ্য বিবেচনায় নেয়ার জন্য এই মামলার সাক্ষীসমূহের সাক্ষ্য এবং দালিলিক সাক্ষ্যসমূহ পুঙ্খানুপুঙ্খভাবে পরীক্ষা করেছি, যেখানে কোথাও আমরা পাইনি যে, এই মৃত্যুকে কোনোভাবেই নরহত্যা বলা যাবে। বরঞ্চ সুরতহাল প্রতিবেদন (প্রদর্শনী-২) এবং ময়নাতদন্ত প্রতিবেদন (প্রদর্শনী-৭) পরীক্ষা করলে যে কোনো সুস্থ্য বোধজ্ঞানসম্পন্ন ব্যক্তির পক্ষে দুই বা তিন ধরনের মতামত দেয়া সম্ভব। যেমন- ভিকটিম গায়ে কেরোসিন দিয়ে নিজে আত্মহত্যা করেছে বা দুর্ঘটনাবশতঃ কেরোসিন বা অন্য কোথাও থেকে আগুন লেগে ভিকটিম নিহত হয়েছে অথবা ভিকটিমকে কেউ একজন হত্যা করে কেরোসিন দিয়ে পুড়িয়ে এটিকে আত্মহত্যা হিসাবে দেখানোর চেষ্টা করেছেন। এরকম তিন ধরনের সম্ভাবনা যেখানে উন্মুক্ত সেখানে আদালতের পক্ষে কোনোভাবেই বলা সম্ভব না যে, এটি একটি নরহত্যাজনিত ঘটনা। সুতরাং, আমাদের বলতে দ্বিধা নেই যে, রাষ্ট্রপক্ষ ভিকটিম সালমার এই মৃত্যুকে একটি নরহত্যা হিসাবে প্রমাণ করতে সম্পূর্ণ ব্যর্থ হয়েছে। ...State Vs. Abdullah @Titumir @Titu, (Criminal), 18 SCOB [2023] HCD 20 ....View Full Judgment

Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995
Section 10(1)
Evidence Act, 1872
Section 106
Penal Code, 1860
Section 302
Code of Criminal Procedure, 1898
Section 35A
Constitution of Bangladesh, 1972
Article 105
Demand of dowry by the petitioner father of the deceased Aklima has not been established by any reliable evidence— Sentence of death under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is set aside. He is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life— After recording the evidence of the prosecution witnesses and on consideration of the same along with other materials on record the learned Judge of the Nari-O-Shishu Nirjatan Daman Bishes Adalat found the petitioner Raju Ahmed guilty of the charge and thereby awarded death sentence to him under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 by the judgment and order dated 26.06.2002 passed in Nari-O-Shishu Nirjatan Daman Case No.218 of 1997 arising out of Nawabganj Police Station Case No.3(1)97. —After hearing the parties and on consideration of the materials on record and the evidence of the witnesses the High Court by the judgment and order dated 12.02.2006 accepted the death reference and dismissed the criminal appeal and jail appeal filed by the appellant-petitioner. Being aggrieved by the aforesaid judgment and order dated 12.02.2006 passed by the High Court Division the petitioner forwarded a jail petition through Senior Jail Super, Central Prison, Dhaka to the learned Registrar of this Division which was registered as Jail Petition No.8 of 2010. This Jail Petition No.8 of 2010 was taken up for hearing along with Civil Appeal No.116 of 2010, Criminal Petition No.374 of 2011 and Jail Petition Nos.18 of 2008, 3 of 2009, 1 of 2010, 16 of 2010, 2-3 of 2011, 5 of 2012 and 7-8 of 2012. Ultimately by the impugned judgment dated 05.05.2015 this Division dismissed the Jail Petition No.8 of 2010 filed by the petitioner and allowed the civil appeal in part and disposed of Criminal Petition No.374 of 2011, Jail Petition Nos.18 of 2008, 3 of 2009, 16 of 2010, 2-3 of 2011. But other Jail Petition being Nos.1 of 2010, 5 of 2012 and 7-8 of 2012 were directed to be heard separately.
In the absence of any explanation by the petitioner in this case the High Court Division as well as this Division rightly arrived at the conclusion to make the petitioner liable for killing his wife Aklima. But so far the findings relating to demand of dowry by the petitioner from the father of deceased Aklima has not been established by any reliable evidence and as such Appellate Division is unable to agree with the same. Accordingly the judgment and order of conviction and sentence passed under section 10(1) of Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 is liable to be set aside and the petitioner is convicted and sentenced under section 302 of the Penal Code. —He is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life and also to pay a fine of Tk.1,000/- (one thousand) in default, to suffer rigorous imprisonment for 01 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. .....Raju Ahmed @ Raja Mia =VS= The State, (Criminal), 2024(1) [16 LM (AD) 643] ....View Full Judgment

Evidence Act 1872,
Section 106 and
Nari-O-Shishu Nirjatan Daman Ain 2000,
Section 11(Ka)
Plea of alibi in a wife killing case:
In a wife killing case, it is always presumed that the husband was with the deceased wife at the time of occurrence unless any plea of alibi is set up by the defence. In that case, the burden of proving such plea rests on the husband in order to absolve him of any criminal liability. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

The burden to prove the plea of alibi is heavy on the accused and the plea of alibi cannot be proved by preponderance of probabilities:
It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. Thus, the burden to prove the plea of alibi is heavy on the accused and the plea of alibi cannot be proved by preponderance of probabilities. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

With regard to the victim’s death while in the custody of her husband, the evidence on record shows that the appellant used to stay at his shop. There was no evidence that on that night he was sleeping in his own house. Hence, there is sufficient explanation from the appellant that he was not present in the house when his wife was attacked, and provision of section 106 of the Evidence Act are not applicable in the facts of the instant case. [Muhammad Imman Ali, J (Majority view)] …Md. Abdul Awal Khan Vs. The State, (Criminal), 16 SCOB [2022] AD 22 ....View Full Judgment

in the absence of evidence as to the presence of the condemned-petitioner in the occurrence house with his family the condemned- petitioner cannot be taken to be liable to prove the fact as to how his wife and 3(three) year old daughter met their death. Mukter Hossain Khan vs State 60 DLR (AD) 44.

Normally, there is no burden on the accused to offer the reason of death of a person for which he is tried. But when the deceased is living with the accused in the same house he is to explain how the death occurred. State vs Khandker Zillul Bari 57 DLR (AD) 129.

When long abscondence is to be treated culpable in nature: Soon after the occurrence, the appellant-husband absconded and he surrendered before the Tribunal on 28.08.2002, that is, about 6 months after the occurrence. This long abscondence of the appellant-husband without any explanation whatsoever appears to be culpable in nature under section 8 of the Evidence Act. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

Defendant-appellants have failed to prove the acquisition of title by adverse possession establishing the existence of the essential ingredients of section 7(2) of the Non-Agricultural Tenancy Act, 1949. No presumption can be drawn under section 110 of the Evidence Act, 1872 in the absence of those ingredients. Plaintiff-respondent has proved their title by registered deed dated 13-11-7? for valuable consideration which has been believed by the Courts below. Claim of long possession of the defendant-appellants remains precarious because of the finding of title of the suit land in favour of the plaintiff-respondent. Gouri Das and ors vs ABM Hasan Kabir 7 BLC (AD) 140.

The Evidence Act, 1872
Section 110 r/w
Specific Relief Act, 1877
Section 42
Possession follows title–– It is settled principle that possession may prima-facie raise a presumption of title. If at any time a person with title was in possession of the property, the law allows the presumption that such possession was in continuation of the title vested in him. The accepted proposition law is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner unless it is proved that he is a trespasser. In the eye of law an owner would be deemed to be in possession of a property so long as there is no intrusion.
Considering the facts and circumstances, Appellate Division is of the view that the High Court Division committed an error of law in not holding that the plaintiffs have been able to prove their title and possession in the suit land. .....Monoranjan Pal =VS= DC, Narayangonj, (Civil), 2023(2) [15 LM (AD) 518] ....View Full Judgment

Possession is evidence of title, and gives a good title as against wrong doer.
Section 110 of the Evidence Act provides for a presumption of ownership in favour of the person who is in possession of the property. A person in possession of land however inperfect his title may be, has a good title against whole world except the true owner and until the true owner comes in Court to assert a claim to the property. Possession is evidence of title, and gives a good title as against wrong doer.
Hajee Abul Hossain and others: -Vs.- Md. Amjad Hossain and others: (Civil) 11 ALR (AD) 24-28

Evidence Act
Section 110read with
Specific Relief Act
Section 42
Section 110 of the Evidence Act provides for a presumption of ownership in favour of the person who is in possession of the property. A person in possession of land however inperfect his title may be, has a good title against whole world except the true owner and until the true owner comes in Court to assert a claim to the property. Possession is evidence of title, and gives a good title as against wrong doer. …Hajee Abul Hossain =VS= Md. Amjad Hossain, (Civil), 2020 (1) [8 LM (AD) 108] ....View Full Judgment

The presumption under section 110 in this case would apply only if two conditions are satisfied viz that the possession of the person claiming long possession in not prima facie wrongful and secondly the title of the person in this case the plaintiff despondent, against whom the long possession is claimed is not proved. The courts below found that the defendant appellants are in possession but they are not in possession to the knowledge of the real owner upon denying his title or any kabuliyat or deed of settlement. On the other hand the plaintiff respondent has proved their title by registered kabala executed on 13.11.1974 for valuable consideration. The hits at the root of the claim by the defendant appellants on the suit land on the basis of long possession since the courts below have disbelieved their claim of title of the suit property, No doubt the defendant appellants possession for a long time and by succession remains. But the claim of long possession remains precarious because of the finding of title of the suit land in favour of the plaintiff respondent by courts below. Sree Mali Gouri Das & Ors, Vs. A. B. Hasan Kabir & Ors. 11BLT (AD)87

Deed executed by Pardanashin lady— Onus of proof—
The burden of proof that the deed executed by a pardanashin lady is genuine and she executed it out of her own volition after clearly understanding the nature of the transaction. Most Rokeya Khatun Vs. Alijan Bepari and others, 2 BLD (AD) 139.

Pardanashin Lady— Legal protection against disposition of her property— such protection is also extended to her legal heirs—
The special rule of evidence is that it should be proved that the pardanashin lady executed the disputed deed of transfer under clear understanding about the nature of the transaction. This protection is also extended to the legal heirs of the pardanashin lady so far the disputed transaction is concerned upon whom her property has been devolved or who represents her. Most Rokeya Khatun Vs. Alijan Bepari and others. 2 BLD (AD) 139.

It appears from the judgment of the appellate Court, the last Court of facts, without considering evidence, particularly, the evidence of P.W.2, and recitals in exhibit-3 erroneously held that Kanai was not the son of Niroda and Krishna Das. This finding is not based on legal evidence and both the Courts have failed to give due weight of the presumption under Section 112 of the Evidence Act. The defendants have tried to make out the case only to deprive the plaintiff from the property without any legal evidence. ...Reba Rani =VS= Sree Nipendra Chandra Mondal, (Civil), 2021(1) [10 LM (AD) 164] ....View Full Judgment

Presumption of regularity of the official acts and burden of proof in such cases:
In judicial review of administrative actions, the Court has to start with the presumption of regularity of the official acts which is incorporated in illustration (e) to Section 114 of the Evidence Act. The burden of proof is on the party who alleges the contrary. In the present case, the petitioner has successfully rebutted the presumption. The case of Shinepukur Holdings Ltd., 50 DLR (AD) 189 is of no assistance to the respondents. ...Md. Mominul Islam Vs. Bangladesh & ors, (Civil), 17 SCOB [2023] HCD 108 ....View Full Judgment

In a case of circumstantial evidence no presumption can be drawn unless the circumstances proved are completely incompatible with the innocence of the accused.
The Appellate Division observed that if motive is a circumstance put forward in a criminal case, it must like any other incriminating circumstance be fully established. The prosecution has totally failed to prove the motive. Therefore, it failed to establish any additional support to the complicity of the appellants in the killing of the victim. The absence of motive is also a circumstance which is relevant for assessing the evidence. The circumstances proving the guilt of the appellants are, however, not weakened at all by the fact that the motive has not been established. It is only if the appellants know the fact of rape and killing in that case only, these facts can be taken as additional link. The High Court Division has totally ignored those aspects of the matter and illegally found the accused guilty. The appeals are allowed and the petitions are dismissed. The judgment of the High Court Division is set aside.
M.A. Kader -Vs.- The State (Criminal) 9 ALR (AD) 57-74

It appears that in terms of the provisions of section 114(e) of the Evidence Act, there is a preemption that the above compromise decree was duly passed and the writ of delivery possession was duly executed and there is nothing on record to show otherwise. Since the plaintiff could not controvert the above presumption by producing materials before the court, the plea that the above order sheet and writ of delivery of possession were merely paper transaction can not stand. Our anxious consideration to the facts and circumstances and the evidence on record we find that the High Court Division considered the matter in its proper perspective and we find no irregularity or illegality in the decision of the High Court Division. Accordingly the appeal is dismissed without any order as to costs. .....Shah Alam(Md.) =VS= Islam(Md.), (Civil), 2018 (2) [5 LM (AD) 407] ....View Full Judgment

Section 114(g) of the Evidence Act; Order 3 Rule 2 of the Code of Civil Procedure read with section 85 of the Evidence Act; Section 120 of the Evidence Act:
Husband instead of wife or wife instead of husband shall be competent witness:
Learned Advocate for the respondent strongly argued that defendant No. 1 Sirajul himself did not come before the court to depose in support of his case and adverse presumption can be drawn under section 114(g) of the Evidence Act for his non examination in the case despite being an important witness. A Power of Attorney given by defendant No. 1 to D.W. 1 through notary public bearing registration No. 135 of 2003 dated 28.06.2003 is kept in the record and under Order 3 Rule 2 of the Code of Civil Procedure read with section 85 of the Evidence Act this power of attorney bears weight. Now question arises whether D.W. 1 being wife of defendant No. 1 holds the same status of defendant No. 1 while deposing in the suit. Question of adverse presumption shall not arise if DW 1 holds the same position. Section 120 of the Evidence Act provides that husband instead of wife or wife instead of husband shall be competent witness. So according to the facts and circumstances of the instant case section 120 shall prevail over section 114(g) of the Evidence Act and the question on adverse presumption as argued does not arise. ...Sirajul Haque Howlader and ors Vs. Zulekha Begum & ors, (Civil), 17 SCOB [2023] HCD 199 ....View Full Judgment

It has been asserted in paragraph Nos. 14(ka)(6) of the written statement that Rustom Howlader filed Title Suit No. 126 of 1996 against Thana Education Officer, Madaripur and filed application for temporary injunction not to remove the Char Ghunshi Government Primary School. The temporary injunction was rejected against which Rustom Howlader filed Miscellaneous Appeal No. 41 of 1996 in the Court of District Judge, Madaripur. The appeal failed. Then he preferred Civil Revision No. 3104 of 1998 before this Court. The Rule issuing order dated 09.08.1998 is exhibit-Ja and after his death his substituted heirs extended the order of status quo till disposal of the rule on 21.08.2000 which is exhibit-Ja(1). Those are public documents and under section 114(e) of the Evidence Act carry presumptive value of its contents and it is to be presumed that Rustom Howlader sworn affidavit in exhibit-Ja until and unless the contrary is proved by reliable evidence and thus it appears that he was never that sick as has been alleged by the plaintiffs. ...Sirajul Haque Howlader and ors Vs. Zulekha Begum & ors, (Civil), 17 SCOB [2023] HCD 199 ....View Full Judgment

The admission of Rustom Howlader that he executed those documents cannot be avoided when plaintiffs could not establish a definite and clear case on Rustom Howlader’s sickness. The execution is admitted and plaintiff had no knowledge on execution or passing of consideration being third party to the document. Plaintiffs cannot question about the consideration because it was between parties to the document. The transferee is to prove the payment of consideration when the transferor challenges the same. In the instant case, if the plaintiffs could prove by cogent and credible evidence that Rustom Howlader was seriously ill and blind from 1980 till his death, in that case the onus would lie upon the defendant to prove the payment of consideration. ...Sirajul Haque Howlader and ors Vs. Zulekha Begum & ors, (Civil), 17 SCOB [2023] HCD 199 ....View Full Judgment

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

Adverse presumption
Unless it is shown that the witnesses named in the charge sheet were material witnesses in the case, no adverse inference against the prosecution should be drawn under section 114(g) of the Evidence Act for non-examination of all those witnesses. Md. Reazuddin Sardar alias Md. Reazuddin and others Vs. The State, 14BLD (AD)178

Non-examination of the Investigation Officer
Non-examination of the Investigation Officer prejudices the defence and deprives the accused of an opportunity of cross-examining him as to the manner and method of the investigation that leads to the submission of two charge-sheets on the self-same occurrence. Abdus Sobhan Howlader and others Vs. The State,13BLD(AD)131

Benefit of doubt
The evidence of P.W.2 Mona corroborated by the Medical Officer PW 3 and informant P.W I to the effect that accused Paltu caught hold of victim Kafi while accused Ashraf struck an iron rod blow on his chest was not accepted by the High Court Division in view of this fact that P.W.2 omitted to state the fact in his statement before the Investigating Officer. The State Vs. Ashraf Ali and others, 14BLD(AD)127

Benefit of doubt When from the evidence of the handwriting expert it is clear that the three disputed cheques, on the basis of which moneys were withdrawn, were in the hand-writing of the accused person and he did not challenge that fact and did not explain why he wrote the three cheques belonging to a fictitious account- holders, his guilt is established and he is not entitled to get benefit of doubt out of minor omissions made by the prosecution witnesses. Md. Ibrahim Hossain Vs. The State, 14BLD(AD)253

Benefit of doubt
Witnesses to the case being totally disinterested and they having deposed uniformly on the material question of recovery of the revolver from the possession of the appellant, the case has been proved against him beyond the shadow of reasonable doubts. In such circumstances, the appellant is not entitled to the benefit of doubt. Mahbubnr Rahman Khan alias Tipu Vs. The State 16BLD(AD)268

Presumption of correctness of official acts—
So long not rebuted by showing the contrary, the official acts done shall be presumed to have been done duly and correctly. Bangladesh represented by the Secretary Ministry of Land vs. Abul Hossain and others. 3, MLR (1998) (AD) 193.

Presumption as to correctness of the Paper Books—
Printed paper books many be presumed under section 114 of the Evidence Act to be the correct copies of the original records of the case and as such can not said to be copies of the copies thereby claiming them inadmissible as secondary evidence. Maksud Ali Vs. EskandarAli (1976)28 DLR (SC) 99.

Presumption as to registered letter—
Section 27 of the General Clauses Act provides that when it is proved that a letter containing notice has been properly addressed and sent by registered post it shall be deemed that the notice has been properly served. Haji Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271.

The prosecution ought to have examined the investigating officer as a witness to dispel the mystery around the two charge—sheets on the self—same occurrence, although for non—examination of investigating officer prosecution case will not fail in every case. Abdus Sobahan Howlader Vs. State 45 DLR (AD) 134.

Acquisition of land for Railway–Two public documents one being a copy of Gazette notification of 1933 and the other the land's plan which were more than thirty years old and filed as exhibits lead to a presumption that official acts referred to therein were regularly performed and those documents were sufficient to rebut the presumption of correctness of RS and subsequent record of right. GM Bangladesh Railway vs Mossammat Sharifjan Bibi 43 DLR (AD) 112.

No doubt, important and relevant witnesses in this case and the non-examination of these relevant witnesses created presumption under section 114(g) of the Evidence Act and raised question of doubt in the prosecution case and the benefit of this doubt would go to the accused.
The Appellate Division observed that Hasan Mutbar in front of whose house the alleged occurrence and alleged recovery of the arms took place has not been examined and the prosecution could not give any explanation for non-examination of this witness also. The High Court Division opined that the victim as well as the rickshaw puller-on whose presence the alleged occurrence took place were, no doubt, important and relevant witnesses in this case and the non-examination of these relevant witnesses created presumption under section 114(g) of the Evidence Act and raised question of doubt in the prosecution case and the benefit of this doubt would go to the accused. The State -Vs.- Nurul Islam (Criminal) 2019 ALR (AD) Online 351 ....View Full Judgment

Benefit of doubt—High Court Division has committed fundamental error in giving the accused the benefit of doubt despite the fact that the prosecution has been able to prove the charge beyond shadow of doubt. State vs Keramat Ali 63 DLR (AD) 102.

Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(Ga)
Evidence Act, 1872
Section 114(g)
It is well settled that criminal offence never abates. ––This material contradiction between the evidence of P.W.1 and doctor, P.W.5 also creates doubt about the veracity of the prosecution case. P.W.2 the father of the complainant in his cross-examination stated that “on the date of occurrence (06.02.2005), these witnessed (P.W No. 3 and 4) were not present.” P.W.3, in his cross-examination stated that he was called after the occurrence. P.W.4 also deposed that hearing the cry of the complainant she rushed to the place of occurrence. The evidence of P.Ws. 2, 3 and 4 do not convince and inspire us in finding the guilt of the appellant within the mischief of section 11(Ga) of the Ain, 2000. As such it is our considered view that the prosecution has failed to prove the charge under section 11(Ga) of the Ain, 2000 against the appellant beyond reasonable doubt. ––The appeal is allowed. The judgment and order of the High Court Division affirming the judgment and order of conviction and sentence passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Chattogram in Nari-O-Shishu Nirjatan Case No. 126 of 2005 is hereby set aside. .....Mohammad Khorshed Alam =VS= The State, (Criminal), 2023(1) [14 LM (AD) 248] ....View Full Judgment

Benefit of doubt– The concept of benefit of doubt is deep-rooted in every legal system for giving benefit of doubt to accused, it is not necessary that there should be many circumstances creating doubt-If there is a single circumstance which creates reasonable doubt for a prudent mind about guilt of accused, then accused would be entitled to benefit of such doubt not as a matter of grace but as a matter of right. The learned Judges of the High Court Division have not considered the material discrepancies, contradictions and omissions of eye-witnesses as well as facts and circumstances of the case for which an error has crept in the judgment resulting in the conviction of the appellants. On consideration of the evidence, particularly, of the eye-witnesses, the appellants are held to be entitled of the benefit of doubt. Appellate Division is inclined to give the benefit of doubt to the accused-appellants. .....Ashraful =VS= Deputy Commissioner, Naogaon, (Criminal), 2022(1) [12 LM (AD) 433] ....View Full Judgment

From a close reading of Section 115 of the Evidence Act ..., it is quite clear that the legislature does not allow a person from retracting or denying anything that which he might intentionally have said or done either verbally or by action or by omission and the consequence of which might have led some other person to rely on such as true or act upon such belief. This is as we find is clearly barred under the law. It is also significant to note that the bar is not confined to a particular type or class of suits but it applies to ‘any’ suit or proceeding be it Civil or Criminal whatever may be the nature, class or category of the suit or proceeding. It is evident from perusal of the same that Section 115 in no way distinguishes or otherwise makes any distinction between Civil and Criminal Proceedings. From the language of Section 115 itself it is evident that it applies to all proceedings. ...Md. Sadek Hossain & ors Vs. Most. Azmeri Begum and ors., (Civil), 6 SCOB [2016] HCD 112 ....View Full Judgment

বিবাদী পক্ষ অথবা তাদের বায়াগন বিভিন্ন ক্রয় কবুলিয়তে নালিশী সম্পত্তি নিলাম বিক্রয়ের বিষয়টি কোনো না কোনোভাবে স্বীকার করে নিয়েছেন। এ প্রসঙ্গে প্রদর্শনী-১৩খ, ১৪খ এবং ১৪গ দৃষ্ট প্রতীয়মান হয় যে, বিবাদী ও বিবাদীর বায়াগন নালিশী সম্পত্তি নিলামের বিষয়টি মেনে নিয়েই সি.এস. ৪৬০ নং খতিয়ানের অধীন বিভিন্ন সম্পত্তির ক্রয় এবং বন্দোবস্তী নিয়েছেন। তাই সেই নিলাম ক্রয় সম্পর্কে বা অনুষ্ঠিত হওয়া সম্পর্কে বিবাদী পক্ষের ওজর আপত্তির ক্ষেত্রটি অত্যন্ত দুর্বল এই প্রসঙ্গে সাক্ষ্য আইনের ১১৫ ধারা তথা এসটোপেল নীতিটি প্রণিধানযোগ্য। ...Abdul Latif Vs. Mohammad Kamal Uddin and others (আব্দুল লতিফ –বনাম- মোহাম্মদ কামাল উদ্দীন এবং অন্যান্য), (Civil), 15 SCOB [2021] HCD 27 ....View Full Judgment

The Penal Code, 1860
Sections 420/409/109 r/w
Prevention of Corruption Act, 1947
Section 5(2) r/w
Evidence Act, 1872
Section 115
The amount misappropriated may be small or large; it is the act of misappropriation sentence is reduce to the period already undergone– The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. The High Court brought a new jurisprudence in the criminal justice system that since the respondent deposited the entire amount, the case was barred by the principles of estoppel.
However, since the instant case has been initiated in 1999 and the High Court Division acquitted the respondent of the charge, Appellate Division is of the view that it would not be proper to send the respondent No.1 in jail after 22 years of the initiation of the instant proceeding, particularly, when the bank had adjusted the entire amount withdrawn. Considering the facts and circumstances, the judgment and order of the High Court Division is set-aside. The judgment and order of conviction of the respondent ordered by the trial Court is upheld. However, his sentence is reduced to the period already undergone. The respondent No.1 is directed to pay a fine of Taka 5,000, in default, he will suffer sentence of rigorous imprisonment for a period of 15 days. .....Anti-Corruption Commission =VS= Omar Faruk, (Criminal), 2022(1) [12 LM (AD) 517] ....View Full Judgment

Estoppel—
In the case under Administrative Tribunals Act, 1980 (Act VII of 1981) acceptance of pensionary benefits in compelling circumstances does not operate as estoppel within the meaning of section 115 of the Evidence Act. Jahangir Kahir Vs Bangladesh represented by Secretary Ministry of Home Affairs. 1, MLR (1996) (AD) 46.

Promissory Estoppel— Previous approval of Government and subsequent cancellation— When arbitrarily done—
The approval given by the Government to certain proposal does not constitute promissory estoppel. Government can no doubt, cancel its approval but it must do so by showing sound and proper reasoning, otherwise such action cannot be sustainable in law. The Government must act consistently and -not whimsically. The Chairman, Board of Investment and others Vs. Bay Trawling Limited and others. 3, MLR (1998) (AD) 54.

Waiver and estoppel—
Plea of waiver and estoppel in order to operate as a bar has to be proved by cogent evidence. Rokeya Begum Vs. Md. Abu Zaher & others. 5 MLR (2000) (AD) 171.

Estoppel against defendant denying kol-karsha right—
The karsha right of the plaintiff was auction sold at a time when the defendant was enjoying Kol-karsha right in the land. The defendant got the auction sale set aside under section 174(3) of the Bangal Tenancy Act, 1885 where the plaintiff was impleaded to the proceedings. Thereafter the plaintiff in subsequent suit is estopped from denying the kol-karsha right of the defendant. Sum Kumar Biswas Vs. Mohd. Idris and others. 1 BLD (AD) 367.

No estoppel against statutory right—
No person can be allowed to have the advantage of his own wrong or fraud. When the plaintiff alienated his land in violation of the provision of section 75A (of the B.T. Act) he can not subsequently seek to nullify his own action. Sree Sudhir Chandra Saha and another Vs. Matiron Bewa. 6 BLD (AD) 182.

Promissory Estoppel-Operates equally against Government—
When a person induces or allows any other person to act in a particular way under certain promise and when in that belief that person acts accordingly, subsequently the said person cannot fall back from the promise. Similarly when the Government grants exemption of import duty to import certain item to overcome the crisis by public notification arid in terms of the said notification when the item is imported, thereafter the Government cannot withdraw the exemption or cancell the notification with retrospective effect and demand higher import duty. In such a case the Government is estopped by promissory estoppel from withdrawing the exemption with retrospective effect. Collector of Customs, Customs House Chittagong Vs. Mr. A. Hannan. 10 BLD (AD) 216.

Principle of acquiesce, waiver and estoppels– When anyone submits to the jurisdiction of any court /authority and complies with the order of such court/authority he is debarred from questioning the authority/jurisdiction of the said court under the principle of acquiesce, waiver and estoppels. Thus the respondent No.1 cannot claim that the village Court had no authority/jurisdiction to pass such order 31. .....Selim (Md) =VS= Mohammad Ismail Sowdagar, (Civil), 2022(2) [13 LM (AD) 225] ....View Full Judgment

Estoppel—
Mere promises de future are not binding on the promisor unless they amount to a contract. A representation inorder to amount to an estoppel must relate to an existing factor, a past event and must be somthing more than a mere promise to do something in future. West Punjab Government Vs. Pindi Jheelum Vally Transport (1960) 12 DLR (SC) 246.

Promissory estoppel—
When the Government by issuing notification granted some exemptions to the importers who on such assurance made some business transaction, the Government subsequently can not retract from the assurance and demand higher tax by issuing another notification. This is a well settled principle of promissory stoppel. Collector of Customs Vs. Abdul Hannan. 42 DLR (AD) 167.

Fishery–Lease of–Appellant society could not show any infringement of statutory rules in creating lease of fishery–No question of estoppel arises against Government either quasi or promissory. Haruni Fishermen's Co–operative Society vs Md Ebadat Ali & others 40 DLR (AD) 266.

Notification exempting duty and tax–Legality of subsequent notification and question of estoppel–The notification under section 19 was issued without any condition excepting the "terms and conditions" therein. Subsequent notification taking away exemptions can have no operation when a right had vested in the importer. The importer having acted upon the assurance 'given, the Government cannot retrace its steps and ask for duty at the rate mentioned in the subsequent notification. This is clearly a case of estoppel, the well–settled principle of promissory estoppel. Collector of Customs, Chittagong vs A Hannan 42 DLR (AD) 167.

Consent Decree–Limitation and Estoppel–Plaintiffs elected to give up all the reliefs prayed for in the suit and to limit their prayer, by amendment, to a declaration that they are the sole legal heirs of the loanee. On understanding with the plaintiffs, the defendants neither opposed the amendment nor advanced any argument. Since the plaintiffs elected to relinquish all reliefs except the one for saving the suit from limitation and to secure some benefits for them, they are bound by the principle of estoppel and cannot be allowed to argue for the same reliefs which they had voluntarily abandoned. The decree obtained by them being based on understanding–and consent of the parties, they are not permitted to take any appeal from such consent decree. On the same principle the defendant is also barred from preferring any appeal from the High Court Division's judgment. Parveen Banu vs BHBFC 42 DLR (AD) 234.

Estoppel & Acquiescence­ - Having induced the appellants to permit him to retire from service, the respondent cannot be heard to say they had no power to relieve him. Even if the appellants' action was not sanctioned by law, he cannot be the person to make any grievance of it, because he wanted a beneficial order in his favour and the appellants had only obliged him. Bangladesh Parjatan Corporation vs Mofizur Rahman 46 DLR (AD) 46.

The Government could not be allowed to work inconsistently, whimsically and capriciously to the prejudice of respondent later when the project was approved by another lawful Government agency at an earlier point of time. Chairman, Board of Investment and others vs Bay Trawling Limited and other 51 DLR (AD) 79.

If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said procedure, unless of course, some legal impediment has been created against it. Government of Bangladesh and others. -Vs- Md. JahangirAlam and others 1 ALR (AD) 45

In a case, as in the instant one transaction by Exhibit B, where transfer is challenged after lapse of considerable long time then recital in the document being of long past can legally be considered, in the light of observation in the case reported in AIR 1916 PC 110, genuine and the court may taking the recital along with the circumstances go for making its decision as to validity of the deed. Jitendra Nath Mistry vs Abdul Malek Howlader and ors 54 DLR (AD) 106.

The meaning of estoppel:
The meaning of estoppel that this Court finds from the statute book and Black’s Law Dictionary is that a party is prevented by his own acts from claiming a right to the detriment of the other party who was entitled to rely on such conduct and has acted accordingly. ...Chattogram Dry Dock Ltd Vs. M.T. Fadl-E-Rabbi & ors, (Civil), 17 SCOB [2023] HCD 82 ....View Full Judgment

The logical question that arises in this circumstance is that if the auction-purchaser wants to employ the doctrine of estoppels as a shield on the ground of non-mentioning of the payment of customs duties in the auction notice, then, resorting to the same doctrine, he should not have paid off all other dues, taxes and charges, such as sale tax, Port dues and wage men’s charges which were also not mentioned in the auction notice published in the newspapers. The true scenario, as surfaces from the conducts of the auctionpurchaser and from the explanations received from the team of Marshall, is that it was notified to all the bidders that they were at liberty either to submit their proposal agreeing with these “Further Conditions” or they might abstain from submitting their proposals. Therefore, it is amply clear to me that upon accepting the above conditions, all the bidders have participated in the bid and this applicant became the highest bidder upon agreeing with and accepting the condition that customs duties and other Government dues are to be paid off on top of his offer of Taka 8,50,00,000/-. More so, on 10.07.2018, since the offer of the highest bidder was accepted and confirmed by this Court subject to the payment of all the Government tax, duties and charges, and given the fact that the auction-purchaser (applicant) received this Court’s aforesaid Order dated 10.07.2018 without raising any objection thereto, the auction-purchaser evidently had reconfirmed his position that he was purchasing the vessel upon agreeing with the conditions of payment of all the Government dues and, that is how, he had waived his right to question about payment of Government dues, which includes customs duties. ...Chattogram Dry Dock Ltd Vs. M.T. Fadl-E-Rabbi & ors, (Civil), 17 SCOB [2023] HCD 82 ....View Full Judgment

Once the relationship of landlord and tenant is established between the parties, the tenant is estopped from challenging the title of the plaintiff without surrendering possession in view of section 116 of the Evidence Act. Selina Begum vs Azizun Nessa 6 BLC (AD) 115.

Estoppel against tenant—
When in terms of a contract the tenant entered into the possession of immovable property, the tenant or anybody claiming through him is estopped from denying the title of the landlord, however defective his title may be. Hajee Abdus Sattar Vs. Mahiuddin and others. 6 BLD (AD) 224.

A tenant could not set up title to a property of which he was a monthly tenant without surrendering possession thereof to the landlord.
The Appellate Division observed that the High Court Division found that Shishu Bala, the widow of Raboty Chakraborty, did not have the authority to transfer the suit property. The High Court then found that according to section 116 of the Evidence Act a tenant could not set up title to a property of which he was a monthly tenant without surrendering possession thereof to the landlord. Md. Motiar Rahman Khan being dead his heirs:
(1). Md. Rabiul Anam and others. -Vs.- Md. Abdul Aziz Khan and others. (Civil) 8 ALR (AD) 191-193

Estoppel against tenant— The language of section 116 of the Evidence Act is clear enough to constitute estoppel between tenant and the landlord at the time of the creation of tenancy. Amarchandra Saha Vs. Arif Kumar Das (1981) 33 DLR (AD) 37.

Estoppel by contract or tenant's estoppel–explained. The estoppel as described in this section is known as tenant's estoppel or estoppel by contract. This estoppel is founded upon a contract between the tenant and the landlord. It provides that when a person enters into possession of immovable property as a tenant of another person then neither he nor anybody claiming through him shall be permitted during the continuance of the tenancy to deny the landlord's title however defective that title might be. This necessarily implies that in case the tenant sets up a claim of title in himself he shall first surrender possession to the person from whom he had taken it. Abdus Sattar vs Mahiuddin 38 DLR (AD) 97.

A device resorted to by tenant whereby he defaults to pay rent and when sued for eviction, sets up plea of no relationship of tenant and landlord–Such a plea is unavailing when origin of tenancy is proved. Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

Section 116 is no bar when landlord's title is lost or extinguished–If tenant claims a title in himself, he must surrender possession to the landlord. If the landlord determines the tenancy, but the tenant continues to stay on still bar of section 116 will operate. Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

Mere non–payment of rent does not snap landlord and tenant relationship. Abdus Sattar vs Mahiuddin 38 DLR (AD) 97.

On the death of the tenant the tenancy can be determined by either party, if tenant's heirs stay on they must pay rent or quit. Abdus Sattar vs Mohiuddin 38 DLR (AD) 97.

A tenant cannot set up title to a property of which he is a monthly tenant without surrendering possession to his landlord. Haji Kasimuddin Mondal being dead his heirs Afroza Bewa and others vs Md Jalaluddin Pramanik 48 DLR (AD) 205.

Child witness– A child as young as 5/6 years can depose evidence if she understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinised and caution has to be exercised in each individual case. The Court has to satisfy itself that the evidence of a child is reliable and untainted. Any sign of tutoring will render the evidence questionable if the Court is satisfied, it may convict a person without looking for corroboration of the child’s evidence. As regards credibility of child witness, it is now established that all witnesses who testify in Court must be competent or able to testify at trial. In general, a witness is presumed to be competent. This presumption applies to child witnesses also. ...Abdul Haque(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 472] ....View Full Judgment

Preliminary examination of a child witness– Testing of intelligence of a witness of a tender age is not a condition precedent to the reception of his evidence. Therefore, preliminary examination of a child witness is not at all necessary. ...Abdul Haque(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 472] ....View Full Judgment

Even a child witness can be relied on if he/she is capable of understanding and replying to the question intelligently. Abdul Quddus Vs. State 43 DLR (AD) 234.

Competence of a witness:
All persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answer to question by tender years, extreme old age, disease and the like. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

Competence of a child witness:
A child as young as 5/6 years can depose evidence if she understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinised and caution has to be exercised in each individual case. The Court has to satisfy itself that the evidence of a child is reliable and untainted. Any sign of tutoring will render the evidence questionable if the Court is satisfied, it may convict a person without looking for corroboration of the child’s evidence. As regards credibility of child witness, it is now established that all witnesses who testify in Court must be competent or able to testify at trial. In general, a witness is presumed to be competent. This presumption applies to child witnesses also. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

Trial judge may resort to any examination of child witness which will tend to disclose his capacity and intelligence:
The competency depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial Judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

Preliminary examination of a child witness is not necessary:
Testing of intelligence of a witness of a tender age is not a condition precedent to the reception of his evidence. Therefore, preliminary examination of a child witness is not at all necessary. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

Though a child witness, PW 2 received injuries in the hands of the appellants when his father was done to death and the witness having testified about the factum of the occurrence and the same having not been shaken in cross-examination, the witness, though a child, should be believed in the facts of the case. Forkan alias Farhad and another vs State 47 DLR (AD) 149.

Evidence of a 12 years old witness is admissible even if the Tribunal does not test her intelligence when she answers rationally and withstands onslaught of crossexamination:
Having gone through the evidence of P.W.9, we find that at the time of deposing before the Court, Laboni was about 12 years old and as such, the Tribunal probably did not feel the necessity of testing her intelligence. Having gone through the evidence, we are of the view that P.W.9, Laboni could understand the question put to her and she answered the rational reply to the questions. Over and above, she withstood the onslaught of cross-examination before the Tribunal. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 ....View Full Judgment

The position of a prosecutrix is a little different from that of an injured person simpliciter. The possibility of a prosecutrix being a collaborator cannot always be ruled out. Therefore a corroboration of the evidence of prosecutrix by at least some circumstantial evidence or a medical examination is always desirable. Md. Hasan Vs. The State 7 BLT (AD)-378

Immunity of documents relating affairs of the state—
When privilege as contemplated under article 48(3) of the Constitution with regard to certain documents are claimed, the court has to hold inquiry as to the validity of such claim. The apex court set aside the impugned order of calling for the documents as the same was done without holding any such inquiry. Government of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs Vs. Md. Shamsul Hilda and others 14 MLR (2009) (AD) 224.

International Crimes Tribunals Act, 1973
Sections 3 (2)(a)(c)(g)and (h), 4(1)
The Evidence Act, 1872
Section 133
Criminal liability– 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, Bangladesh, [9 LM (AD) 593] ....View Full Judgment

International Crimes Tribunals Act, 1973
Sections 3 (2)(a)(c)(g)and (h), 4(1)
The Evidence Act, 1872
Section 133
Criminal liability– 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, Bangladesh, (Criminal), 2020 [9 LM (AD) 593] ....View Full Judgment

Evidence has to be weighed and not counted– It is well known maxim, which is a golden Rule, that ‘evidence has to be weighed and not counted’. Thus, evidence on a point is to be judged not by the number of witnesses produced but by its inherent truth. It also appears from the record that after the occurrence convict- Hazrat Ali was absconded for a long time. It is well settled that mere abscondence by itself does not prove any offence against any person unless such abscondence is substantiated by evidence in favour of his guilt incompatible with his plea of innocence. In the instant case if we consider the evidence of PW-23 couple with the factum of the abscondence of convict Hazrat, then we can safely come to a conclusion that abscondence of convict Hazrat Ali is a strong circumstances as to his guilt. This pertinent fact also presumed that he is guilty of offence. This Division in the case of Amin Husain Hawlader Vs. State 1989 BLD (AD) 193 has observed that-“absconsion of an accused is corroboration of direct evidence of eye-witness connecting the accused with the crime.” .....Hazrat Ali =VS= Deputy Commissioner, Dhaka, (Criminal), 2022(1) [12 LM (AD) 529] ....View Full Judgment

Number of witnesses— Conviction of the appellants can safely be based on the solitary evidence of the eye—witness PW 1. His evidence is full, complete and self—contained. It may not have received corroboration from other witnesses, but it stands fully corroborated by the circumstances of the case and the medical evidence on record. Its fullness and completeness are enough to justify the: conviction. Abdul Hai Sikder Vs. State 43. DLR (AD) 95.

Acid Aparadh Daman Ain, 2002
Section 5(Ka)
The Evidence Act, 1872
Section 134
Sentence to death–– A man may tell a lie but the circumstances do not.” There are very strong reliable and clinching circumstantial evidence which clearly indicates that it is the appellant and none else who was guilty of throwing acid to his wife, the victim. Though the testimony of injured witness herself is sufficient to sustain conviction and no further corroboration is required, the prosecution has in addition, led evidence to connect the appellant with crime. The learned Courts below did not commit any error of law in believing the testimonies of P.Ws.2, 6, 7 and 11–– The damage caused by the accused throwing acid on the victim is immense. The Court must not only keep a keen view of the rights of the criminal, but also of the right of the victim of the crime and the society at large while considering the imposition of appropriate sentence. As throwing acid on a young girl is not less dangerous than murder and the same can not be tolerated by any father, mother, brother and sisters of the girl and the society at large. It would be a mockery of justice to permit the appellant to escape the extreme penalty of law. In order to curb and control the increasing rate of acid attacks, an exemplary punishment was required to be awarded and the Courts below rightly did the same–– The appeal is dismissed. The judgment and order of conviction and sentence awarded by the trial Court, which has been affirmed by the High Court Division is hereby maintained. Jail Petition No.08 of 2015 is disposed of. .....Akbar Ali(Md.) @Jelhaque Mondal =VS= The State, (Criminal), 2022(2) [13 LM (AD) 288] ....View Full Judgment

The testimony of the solitary eye—witness could not be shaken in any manner by the defence in cross—examination for which it is difficult to disbelieve her testimony as she narrated the prosecution case in details. Abdul Quddus Vs. State 43 DLR (AD) 234.

A sole witness is enough to convict an accused of the charge brought against him, if the witness is natural and trustworthy.
The State -Vs.- Abul Basher Tipu 3 ALR(2014)(1)(AD) 211

If a witness is otherwise found reliable or independent or non–partisan or disinterested, the evidence of such a lone witness can be taken as the foundation in making decision as to an issue in the case. Shishir Kanti Pal and others vs Nur Muhammad and others 55 DLR (AD) 39.

When a witness specifically makes statement regarding particular facts if the defence did not deny ‘such facts’, then according to law the deposition deemed to have been admitted– Non-appearance of vital prosecution witnesses after exhausting the process of Court, specifically after deposition, while did not turn up to face cross in the present case, which are not explained by the prosecution side, the trial Court must give a specific opinion in respect of the evidential value of such depositions of the witnesses against the accused who has not got any chance to cross the witnesses. However, both the Tribunal and the High Court Division have failed to discuss the above legal aspects and consequences.
According to section 137 of the Evidence Act, examination-in-chief is followed by cross-examination by the adverse party. In a case when a witness specifically makes statement regarding particular facts if the defence did not deny ‘such facts’, then according to law the deposition deemed to have been admitted. In the instant case facts are totally denied. The P.W. Nos.3 and 6 have deposed before the Court against the accused appellant but they have failed to appear before the Court to face the cross instead of exhausting the process of the Court for appearance to face the cross by the adverse party.
Both the Tribunal and the High Court Division are not justified, rather, have failed to corkscrew the actual facts, circumstances and legal inference relying on such shaky and incredible evidence in convicting the appellant Maksudur Rahman Bipblob. Hence, appellant Maksudur Rahman Biplab is acquitted from the charges levelled against him. ...Maksudur Rahman Biplab =VS= The State, (Criminal), 2021(1) [10 LM (AD) 397] ....View Full Judgment

Statements elicited from a witness in cross—examination is a very important part of evidence before a Court. Before drawing any inference from the testimony of a witness, the Court must consider the statements made in the examination—in—chief and those made in cross—examination by putting them in juxtaposition and see whether that witness has stood the test. Wajear Rahman Moral Vs. State 43 DLR (AD) 25.

Contention as to facts—The defence cannot make an ingenuous argument that the prosecution story cannot be believed as they did not mention about the connecting doors in between the rooms as the defence did not put any suggestion as to non—existence of the same. Abdul Quddus Vs. State 43 DLR (AD) 234.

Objection to the manner of cross—examination put to PWs 2 and 3 in a lump and similarly to the 10 PW 9—Objection rightly taken when there was no such statement in the examination—in—chief of the witness. Taleb Ali & ors. Vs. State 40 DLR (AD) 240.

The functions of cross-examination is to have the exact truth, to ascertain what part of the story is true, what is false and what is left out-these matters may be had by searching questions put to the witness (Per S K Sinha, J majority view). Md. Habibur Rahman Bhuiyan and others -Vs-Mosammat Galman Begum and others 1 ALR (AD)133

The Evidence Act, 1872
Section 145 r/w
The Code of Criminal Procedure, 1898
Section 161, 162
Discrepant Evidence– Discrepancies in the statement of a witness–
On factual side, Mr. Shajahan’s greatest emphasis was on what he called discrepancy in testimony.
He tried to have us to accept that those who deposed before the Tribunal, did not say many of those things when they were examined by the I.O. during the investigation stage.
Under our general criminal procedural law, i.e., Cr.P.C. Section 161 provides for the recording of statements from potential witnesses by the I.O’s. Although those statements do not form parts of evidence, they do nevertheless have great evidentiary significance in that the defence can under Section 162 Cr.P.C., read with Section 145 of the Evidence Act, 1872, use such statements to prove that as deposition made by a prosecution witness in Court is discrepant with the statement he made to the I.O. at the investigation stage, they should not be treated with credence.
Although provisions of both Cr.P.C. and Evidence Act have been explicitly excluded by the Act, sanctity of statements made to the I.O. is still of great relevance in that discrepancies in the statement of a witness at different stages on the same fact is bound to dent his credibility. (Paras:748-751); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment

The Evidence Act, 1872
Section-145 r/w
The International Crimes (Tribunal-1) Rules of Procedure, 2010
Rule 53(ii)
Contradiction statement made by the witnesses–
It is assumed that contradiction of the statements of witnesses can be drawn in the manner provided under section 145 of the Evidence Act, it may best be said that the witnesses omitted to make some statements before the investigating officer as they were not asked properly, and those omissions cannot altogether be treated or termed contradiction within the meaning of sub-rule (ii) of Rule 53 of the Rules of the Evidence. The contradiction can only be drawn from statement made by the witnesses in course of their examination-in-chief. The defence practically has failed to bring any such contradiction which affects the prosecution case as a whole. The appellant failed to show any such vital contradiction. (Para-225); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 1] ....View Full Judgment

Evidence recorded in preliminary Inquiry is admissible as superlative—
Evidence recorded in preliminary judicial enquiry is admissible in subsequent proceedings subject to the provision of section 145 of the Evidence Act and section 288 of the Code of Criminal Procedure, 1898. Birendra Chandra Saha Vs. Shashi Mohan Saha (1975) 27 DLR (SC) 89.

Decision of the majority Judges– Defendant's deposition Exts.5 and 6 are inadmissible under section 19 of the Evidence Act.
Notwithstanding the challenge given as to the admissibility of Exts.5 'and 6 which have been treated as substantive evidence, the High Court Division took the view that those previous statements are admissible for the purpose of contradiction. With respect, this conclusion is not founded on law. Exts.5 and 6 are inadmissible in evidence and they cannot constitute as admission within section 19 of the Evidence Act. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133.

View of Shahabuddin, J (minority)– Deposition by the defendant in previous rent and money suits to the effect that he did not know his mother's name or where she lived etc.–He may be confronted with such deposition in a subsequent case under section 145 Evidence Act to test his veracity. Khorshed Alam vs Amir Sultan 38 DLR (AD) 133.

Hostile witness a witness has gone back upon his previous statement and given in court evidence which is inconsistent with that statement does not make the witness hostile.
The Appellate Division observed that it is now established that the mere fact that a witness has gone back upon his previous statement and given in court evidence which is inconsistent with that statement does not make the witness hostile. The value of the evidence of a witness cross examined by the party calling him is that the evidence of the witness thus discredited could not be used for or against either party. The witness loses all evidentiary value and can neither be used in favour nor against the prosecution.
Aminul Islam Bulbul -Vs.- The State (Criminal) 8 ALR (AD) 101-106

Hostile witness (by minority): The evidence of the two hostile witnesses cannot be rejected in whole or in part but the whole of the evidence so far as it affects both sides must be taken into consideration. Sk. Shamsur Rahman Vs. State 42 DLR (AD) 200.

Hostile witness—A witness is not necessarily hostile if he reveals the truth. Established practice, now forming a rule of law, regarding the evidence of a hostile witness is that the whole of his evidence so far as it affects both the parties, favourably or unfavourably, must be considered and the Court which gets the opportunity to observe his demeanor is at liberty to make assessment of the evidence. If corroboration from other sources is available to the evidence of hostile witness, there is no reason why his evidence shall be rejected outright. If the evidence of the hostile witness fits in with the attending circumstances, then it may be accepted and considered along with other evidence. Siddique Munshi Vs. State 44 DLR (AD) 169.

Evidence by eyewitness—Vital omission in FIR and statement to the Investigation Officer make their substantive evidence unreliable. Babor Ali Molla & others Vs. State 44 DLR (AD) 10

Evidence of the witness, who has been declared hostile, would ipso facto not be of any worth for the prosecution, rather if on consideration of the evidence of such kind of witness it is found that evidence on record either has established the case of the prosecution or that prosecution case does not stand scrutiny then whatever order in any respect is made by the Court the same is very much sustainable in law. Mobarak Hossain alias Mobarak vs State 56 DLR (AD) 26.

Previous statement should be confronted to the witness to impeach his credibility—
Upon an application of person affected the court can examine and scrutinise the records and papers as to any fraud, undue influence or misrepresentation in transferring shares and give direction for rectification of the Share Register. The power of the court under section 38 of the Companies Act, is wide enough. Ahmed Impex (Private} Ltd. and others Vs. Mocjbul Ahmed being dead his heirs Ferdous Ara Begum and another 13 MLR (2008) (AD) 129.

The prosecution witnesses having not been declared hostile their evidence cannot be discarded only because they are favourable to the accused. State Vs. MM Rafiqul Hyder 45 DLR (AD) 13.

In the instant case except asking the PW 1 about filing of the written statement, the content thereof with which the PW 1 presently making any inconsistent statement was not put to him in order to enable the respondents to explain the circumstances against him. In that view of the matter, the content of written statement though contradictory to the defendant's own case of transfer, could not be produced and relied in order to contradict PW 1. Ahmed lmpex (Private) Ltd & others vs Moqbul Ahmed 56 DLR (AD) 92.

The court is bound to reject the statements of those witnesses who did not furnish the complicity of the accused person ‘at or about the time’ of the occurrence. The discloser must be at once or at least shortly after the event when a reasonable opportunity of making it present itself.
The Appellate Division observed that the High Court Division failed to apply its judicial mind as section 157 of the Evidence Act provides an exception to the general rule excluding hearsay evidence and in order to bring a statement within the exception, the duty cast on the prosecution to establish by clear and unequivocal evidence the proximity of time between the taking place of the fact and making a statutory statement before the investigation officer. The expression ‘at or about the time’ when the fact took place should be understood in the context according to the facts and circumstances of each case but this does not mean that in every case if the investigation officer recklessly or intentionally or for any other reason did not ex-amine the witnesses, the delay will be condoned without any plausible explanation. The court is bound to reject the statements of those witnesses who did not furnish the complicity of the accused person ‘at or about the time’ of the occurrence. The dis-closer must be at once or at least shortly after the event when a reasonable opportunity of making it present itself.
M.A. Kader -Vs.- The State (Criminal) 9 ALR (AD) 57-74

The Evidence Act, 1872;
Section 157
The Penal Code, 1860;
Sections 302/ 34
Two eye witnesses were examined by the investigating officer after long lapse of time of the alleged occurrence. But it cannot be a sole ground to discard their evidence on the plea of belated examination by the investigating officer–– Find that 03(three) police officers namely P.Ws-10,11 and 12 had investigated the case. From the evidence of P.W-12 it transpires that he received the case docket and entrusted with investigation of the case on 15.09.2003 and on the following day he examined P.Ws-2 and P.W-6 and thereafter he filed the charge sheet on 17.09.2003, which clearly proves that P.W.-12, investigation officer, submitted the charge sheet after getting the job of investigation and he examined the said witnesses.
Appellate Division has no hesitation to hold that in convicting the present appellant relying on the evidence of P.Ws-2 and P.W-6, the Trial Court as well as the High Court Division did not commit any error of law. Since the evidence of P.Ws-2 and P.W-6, the eye witnesses have been found true, trust worthy and credible, this Division has no hesitation to hold that there is no scope to disbelieve the said witnesses. This Division finds no merit in the appeal. .....Shamim Uddin =VS= The State, (Criminal), 2023(2) [15 LM (AD) 184] ....View Full Judgment

Previous statement, use of— The statement of a witness made under section 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in court (Per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal J). Abu Taher Chowdhury Vs. State 42 DLR (AD) 253.

When the witness departure from the original version, it is very difficult to rely on his/her as a trustworthy witness.
The Appellate Division observed that the High Court Division rightly rejected the second FIR on the ground of its inadmissibility in view of section 162 and left it out of consideration. The informant is a literate woman and she has introduced altogether a new story in court and implicated the appellants. This subsequent introduction of a story against the appellants with whom she had admitted animosity over the ownership of the house in which both of them were residing cannot but taken as embellishment for political reasons or for grabbing the property. In view of this departure from the original version, it is very difficult to rely her as a trustworthy witness or in the alter-native, it may be inferred that she has implicated the appellants after two months of occurrence with a view to mitigate the grudge as well as to grab the property as per advice of her cronies with the motive that if the appellants are convicted, she can enjoy the house exclusively. The High Court Division has totally overlooked this aspect of the matter.
M.A. Kader -Vs.- The State (Criminal) 9 ALR (AD) 57-74

Court's power to determine the validity of privilege—
Court has abundant power to inspect the document for the purpose of deciding that the privilege is not. being claimed inappropriately or as a matter of routine. Government of West Pakistan Vs. Begum AKarim (1969) 21 DLR (SC) 1.

Retrial when can not be ordered—
When there are sufficient evidence on record to justify the decision the question of improper admission or rejection of any evidence is immaterial and merely for this no new or fresh trial can. be ordered. Jamaluddin and others Vs. Md. Abdul Majid and others. 3, MLR ( 1998) (AD) 102.

Section 167 of the Evidence Act provides that if there is sufficient evidence to justi1r the decision then improper admission or rejection of the evidence will be no ground for a new trial. [Para- 14] Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6 BLT (AD)-137.

read with
Code of Criminal Procedure[V of 1898]
Section 164 —The Appellate Division held that it is expected that High Court Di-vision would be more cautious and meticulous in assessing the evidence. More so, the court should not draw adverse inference against the defence treating a statement of a witness made under section 164 of the Code of Criminal Procedure as substantive evidence. Though there is presumption under section 80 of the Evidence Act of genuineness of a statement recorded under section 164 of the Code of Criminal Procedure, section 80 of the Evidence Act merely gives the sanction to the maxim Ominia praesumuntur rite et solemniter esse acta i.e. all acts are presumed to have been done rightly and regularly with regard to documents taken in the course of a judicial proceeding. It does not render admissible any kind of particular evidence, but dispenses with the necessity of formal proof in the case of certain documents taken in accordance with law. It should not equate between a ‘statement’ and a ‘confession’ while drawing inference of presumption.
Aminul Islam Bulbul -Vs.- The State (Criminal) 8 ALR (AD) 101-106

Circumstances evidence–
If motive is a circumstance put forward in a criminal case, it must like any other incriminating circumstance be fully established. The prosecution has totally failed to prove the motive. Therefore, it failed to establish any additional support to the complicity of the appellants in the killing of the victim. The absence of motive is also a circumstance which is relevant for assessing the evidence. The motive has not been established. .....M.A.Kader =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 408] ....View Full Judgment

Evidence– 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 suspecion 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), 2018 (1) [4 LM (AD) 430] ....View Full Judgment

Circumstantial evidence–
No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt– The rule of circumstantial evidence is that the chain of circumstances must be knitted together closely so as to lead to the irresistible conclusion that the accused committed the offence. The chain of circumstances must be such that it would exclude all possibilities of the innocence of the accused. The Court must examine whether inference from the totality of circumstances preclude the accused of being innocent. If there is any plausible story about the non-involvement of the accused, he cannot be convicted merely on the basis of circumstantial evidence. In order to sustain conviction, circumstantial evidence must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused. ...Sheikh Zahid =VS= The State, (Criminal), 2021(1) [10 LM (AD) 705] ....View Full Judgment