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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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