Criminal Trial
Absence
of necessary link in evidence- Conviction set aside
Neither
the specimen signature nor the specimen thumb impression of accused Nu- run
Nabi was taken for comparison with that of the identifier appearing in the
disputed document. The mere appearance of the name of Nurun Nabi as the
identifier of the disputed document without any evidence to show that accused
Nurun Nabi had really identified the purported executant, the conviction of
appellant Nurun Nabi is not sustainable. Abdul Majid Sarkar and others Vs. The
State, 15BLD(AD)49
Criminal
Trial
It
required the trial Court to conclude trial within the statutory period from the
date the case was received by it and not from the date of framing of the
charge-Cr.P.C; Section-339C
Master
Giasuddin and others Vs. The State, 17BLD (AD)35
Criminal
Trial
Even
in the absence of recovery of the dead body of a victim a conviction can be se-
cured for an offence of murder under section 302 of the Penal Code if there is
legal and sufficient evidence on record to prove the commission of murder by
the accused. In the face of reliable evidence of eye-witnesses proving murder
of the victim by the accused and subsequent removal of the dead body by them
for causing disappearance thereof, conviction under sections 302/34 of the
Penal Code is maintainable-Penal Code, 1860 (XLV of 1860) Sections-302/34 and
201/34 Shaha and others Vs. The State, 17BLD (AD) 241
Criminal
Trial
The
trial Court failed to apply its judicial mind as to the age of appellant
Shiplu, who appears to have been below the age of 16. This makes the order of
conviction and sentence in respect of Shiplu illegal and the same is liable to
be set aside for want of jurisdiction Children Act, 1974(XXXIX of 1974)
Sections-2(f), 6 and 66
Shiplu
and another Vs. The State, 17 BLD(HCD) 243 Ref: 3 BLD (HCD) (1983) 193 Cited
Criminal
Trial
All
incriminating pieces of evidence must be brought to the notice of the accused
while examining him under section 342 of the Code of Criminal Procedure for
affording him opportunity to offer his explanation. Md. Mizanur Rahman alias
Mija alias Mizan Vs. The State, 17BLD(HCD) 82
Criminal
Trial
The
offence committed by the appellant finds corroboration from the medical report
which found marks of violence on the person of the victim clearly indicating
that it is a case of rape and the evidence of the witnesses has clearly
established that the appellant committed the crime of rape and as such the
trial court has rightly found the appellant guilty of the offence under section
376 of the Penal Code. Tafazzal Hossain Khan Vs. The State, 17BLD (HCD) 306
Criminal
Trial
To
sustain a charge of smuggling it must be proved by the prosecution that the
seized articles were recovered from the possession of the accused and that
those were contraband goods-Special Powers Act, 1974; S.25B
Tomezuddin
Biswas alias Kalu and an- other Vs. The State, 17BLD (HCD) 174
Criminal
Trial
The
Act does not provide for any consequence for failure of the trial Court to con-
clude the trial within one hundred and twenty days. This limitation of time for
disposal of cases is merely directory in nature-Women and Children Oppression
(Special Provisions) Act, 1995 (XVIII of 1995), Section-20
Habibur
Rahman Zakir and others Vs. The State, 17BLD (HCD) 440
Criminal
Trial
The
Court is competent to proceed with the trial in the absence of any accused
person who is either absconding or absenting after his release on bail. Hence,
the practice of adjourning criminal trial frequently on the prayer of the
defence inspite of appearance of the prosecution witnesses on the ground of
absence of any accused over-looking provisions of section 339B Cr.P.C is
contrary to law and should be discontinued. S.339B
Mahabubur
Rahman Khan @ Tipu Vs. The State, 13BLD(HCD)268 Ref: 27 DLR 25; BCR 1990 (HCD)
236-Cited
Criminal
Trial
Ommission
or defect in the examination of the accused persons under section 342 Cr.P.C.
does not occasions any miscarriage of justice and the same is mere irregularity
and curable u/s. 537 Cr.P.C.
Hafez
Munshi alias Hafizur Rahman and others Vs. The State, 13 BLD (HCD) 461 Ref: 39
DLR 437-Cited Criminal Trial
From
the judgment of the trial Court it is found that the learned Sessions Judge has
not properly assessed the evidence of the case and failed to consider the gross
discrepancies, contradictions and omissions as well as ad- missions of the PWs
on vital points and as such it is not safe to maintain the order of conviction
and sentence on the evidence on record of the case. Shaheb Ali Munshi and
another Vs The State, 20BLD (HCD) 148
Criminal
trial
From
the evidence of PW4 and the in- quest report it appears that Biswajit did not
commit suicide rather somebody killed him and then tried to hang the dead body
in the cowshed in a sitting position. Gulzar Biswas &ors. Vs. The State,
20BLD(HCD)550
Criminal
Trial
In a
criminal trial determination of fact is the main task before the court and such
determination is dependent upon consideration of answers given by prosecution
witnesses in their cross-examination. Mahmudul Islam Ratan Vs. The State,
20BLD(AD)249
Criminal
Trial
Question
as to whether following stop- page of proceedings and release of the ac- cused
under section 339C(4) of the Code, a fresh complaint/proceeding against the
same set of accused persons by the same set of complainants upon the self same
allegations is permissible or not.
There
is no legal bar for instituting a fresh prosecution on the self-same facts a
preceding is stopped and accused released under section 339C(4) of the Code of
Criminal Procedure. Niamat Ali sheikh and others Vs. Be- gum Enayutun Noor and
others 13BLD (AD)11
Ref:
(1981) 33 DLR (HCD) 205 distigushed-Cited
Criminal
Trial
When
the appellate Court and the High Court Division refused to believe the prosecution
case, it is settled law that the Appellate Division, merely because a different
view is possible of the evidence, does not interfere with an order of
acquittal. Section-439 Cr.P.C.
Md.
Abdul Hamid Mollah Vs. Ali Mol- lah and another 13BLD (AD)127 Ref: Siraj Din
Vs. Kala, 16DLR(SC) 94 Cited.
Criminal
Trial
In a
criminal case the Court has only to see if the prosecution has been able to
prove the guilt of the accused beyond reasonable doubts. Non-putting of a
possible accused on trial cannot by itself be a ground for questioning the
conviction of an accused whose guilt has been proved satisfactorily. Md.
AfsaruddinBhuiyan Vs. The State, 18BLD (AD)149
Criminal
Trial
In criminal
matters the accused should get all protection under the law but it is also
important that the law should not be stretched too far so that big companies
against whom serious allegations of foul play concerning national economy are
being made before the Court by a statutory authority, can them- selves overtake
the law by resourceful enter- prise in raising ingenious contentions in order
to frustrate the prosecution on the threshold. The Court must strike a balance
but the learned Sessions Judge failed to maintain that balance which has
rightly been restored by the High Court Division.
Shinepukur
Holdings Ltd. and ors. Vs. Security and Exchange Commission and another, 18BLD
(AD) 189
Criminal
Trial
Law
prescribes a procedure for scrutiny of evidence that may be adduced in a trial.
It is fundamental to the rule of law that the pro- cedural law as to holding of
a trial must not be interfered with. Dr.Taslima Nasreen Vs. Mohammad Nurul
Alam, Officer-in-Charge and an- other, 18BLD(AD) 249
Criminal
Trial
Provision
of section 342 of the Code being a mandatory provision of procedural law, the
departure from the fundamental principles of the said section causes grave
prejudice to the accused-appellant. Since the accused- appellant was not given
any opportunity to explain the circumstances, the order of conviction appears
to have been vitiated and it is liable to be set aside.
Nurul
Islam alias Nur Islam Vs. The State, 18BLD (HCD) 695
Criminal
Trial
A
conviction under section 302 of the Penal Code and a conviction under section
302/149 of the Penal Code are different kinds of conviction as section 302 of
the Penal Code involves direct and personal liability of the accused whereas
section 302/149 of the Penal Code involves a vicarious liability. The trial Court
convicted the accused-appellant under section 302/149 of the Penal Code and as
such the High Court Division was wrong in affirming the order of conviction and
sentence under section 302 of the Penal Code. Altaf Hossain Vs. The State,
18BLD (AD) 231
Criminal
Trial
The
allegations made in the petition of complaint it clearly shows that the
petitioner had initial intention to deceive the complainant and thereby
misappropriated the money. So, it cannot be said that it is a case of civil
nature. The petition of complaint undoubt- edly discloses criminal offence
against the accused-petitioner. The Appellate Division held that the High Court
Division rightly re- fused the prayer for quashing the proceeding. Penal Code,
1860 (XLV of 1860) Section 406 and 420
Abu
Baker Siddique Vs. The State &anr., 18BLD (AD) 289
Criminal
Trial
In
view of the findings by the trial Court that the petitioner are not children
within the meaning of section 2 of sub-section (f) of the Children Act, the
High Court Division rejected the defence plea that the petitioner being children
cannot be tried by the ordinary criminal Court-Children Act, 1974 (XXXIX of
1974), Sections.2(f) and 66 Mohammad Hossain and others Vs. The State and
another, 18BLD (HCD)407
Ref:
47DLR(AD) 96-relied
Criminal
Trial
In the
absence of any proof showing that the quantity of heroin as an incriminating substance
exceeded 25 grams, an accused cannot be sentenced to death under Table 1(b) of
section 19 of the Act. In the instant case, since the prosecution failed to
prove that the quantity of heroin seized exceeded 25 grams, the accused could
at best be sentenced under Table 1(a) of section 19 and not under Table 1(b) of
section 19 of the Act. Sentence of death was therefore altered to 5 years rigorous
imprisonment-Narcotic Control Act, 1990 (XX of 1990), Section-19(1)
The
State Vs. Innocent N. Egbunine, 18BLD (HCD)250
Criminal
Trial
The
line of demarcation between the cul- pable homicide and grievous hurt is rather
thin. In the former case injury must be such as is likely to cause death
whereas in the lat- ter case it is likely to endanger life. Offence of culpable
homicide pre-supposes an inten- tion or knowledge of likelihood of causing
death. In the absence of such intention or knowledge the offence committed may
be grievous hurt notwithstanding death being caused-Penal Code, 1860 (XLV of
1860), Sections-302, 304 and 326
HumayunMatubbar
Vs. The State, 18BLD (HCD) 492
Criminal
Trial
The
accused-appellant ShamsulHuq had no premeditated intention to kill the victim
Kastura Bibi and the intention to kill is lacking in the instant case.
Although, he had no intention to kill the victim, he must be attributed the
knowledge that such throwing of brick was likely to cause her death and the act
done by him was both rash and indiscreet and as such the accused appellant
Shamsul Huq is liable for commission of offence punishable under section 304
Part II of the Penal Code and he can be convicted thereunder- Penal Code,
1860;Section-304 Part II
Abdul
Jabbar and another Vs. The State, 18BLD (HCD) 109
Ref:
5BLD(AD)198; 6BLD(AD)318; 10 BLD(AD)210; 5BLD129; 8BLD129; 48 DLR 446Cited
Criminal
Trial
A
co-sharer in exclusive possession of a parcel of land is entitled to maintain
his pos- session therein. Before effecting partition by metes and bounds
co-sharers or co-owners have no right to disturb his possession, not to speak
of cutting and taking away his crops. In such a case the bonafide claim of
right in the case land is no defence against a charge un- der section 379 of
the Penal Code for cutting and taking away crops grown by the co- sharer in
possession-Penal Code; Section. 379.
Nasiruddin
Shah and ors Vs. Nazrul Islam and ors, 18BLD (HCD)634
Criminal
Trial
To
sustain an order of conviction for possessing contraband goods the prosecution
is required to prove the exclusive possession or domain of the accused over the
goods in question. The prosecution should also produced the seized goods for
the scrutiny of the Court when the identity thereof is challenged by the
defence-Special Powers act, 1974; Section-25B.
Taher
alias Md. Taher Vs. The State, 18BLD (HCD)691
Criminal
Trial
Since
a duly constituted enquiry committee in its report opined that the accused
persons contravened the provisions of section 17 of the Securities and Exchange
Commis- sion Ordinance, 1983 and the Magistrate on being satisfied about the
same has taken cognizance against the accused persons they would get fair
chance to defend themselves and as such there is no failure of justice in
taking cognizance of the offence against them.
Shainpukur
Holding Ltd. Vs. Security Exchange Commission, 18BLD (HCD) 61 Ref: 27DLR111;
30DLR(SC)58; 29DLR 122; 32DLR(AD)35; (1940) A.C 1014 (at P. 1022) Cited
Criminal
Trial
In a
case where two persons have been murdered at dead of night it is but natural to
inform the police first about the occurrence and as such non-mentioning of any
name in the FIR rings a truth in the FIR. Section-302
Shahjahan
Sardar and others Vs. The State 13BLD (AD) 58
Criminal
Trial
Nature
of injury caused by 'Teta'
If the
hook of a Teta' enters the body upto its full length and then is brought out,
the injury caused may be lacerated but if the hook does not penetrate, there
will be hardly any difference between an wound caused by a shorki and that
caused by a teta.. The State vs. Nuru Mira, 13BLD (AD) 202
Criminal
Trial
Glaring
omissions and material contra- dictions in the statements of witnesses, par-
ticularly of the eye-witnesses, render their evidence unreliable. Nurul Islam
and others Vs. The State, 14BLD(AD) 69
Criminal
Trial
A
conviction under section 19(f) the Arms Act cannot be allowed to stand unless
the prosecution has adduced sufficient evidence to testify that the accused
person has in his 'possession' or under his 'control' arms and ammunition in
contravention of sections 4, 14, 15 and 19 of the Arms Act. Sukkur Ali Kha Vs
The State, 19BLD (HCD) 585
Criminal
Trial
The
alleged transaction in between the complainant and the appellant is clearly and
admittedly a business transaction. The appellant had already paid a part of the
money under the contract to the complainant. The failure on the part of the
appellant to pay the complainant the balance amount under the bill does not
warrant any criminal proceeding as the obligation under the contract is of
civil nature. The High Court Division were not justified in refusing to quash
the proceeding in question although the transaction in question between the
parties is clearly of a civil nature. Cr.P.C;S. 561A, Penal Code, 1860 (XLV of
1860), S. 420
Dewan
Obaidur Rahman Vs. The State and ano., 19BLD (AD) 128 Ref: 45 DLR (AD)27-relied
upon
Criminal
Trial
The
trial itself was without jurisdiction and in that view of the matter the delay
in filing the appeal was not material. There is no use sending the appeal back
to the High Court Division for consideration on merit as the trial was without
jurisdiction and as such. the order of conviction and sentence is liable to be
set aside. Nazrul Islam Chowdhury Vs. The State, 19BLD (AD)18
Criminal
Trial
According
to section 2(f) of the Children Act a child means a person under the age of 16
years. In the instant case the appellant was a regular student of class IX at
the time of commission of the offence and he is aged about 14 years when the
court examined him under section 342 of the Code of Criminal Procedure and as
such the trial is without jurisdiction. Md Shamim Vs. The State, 19BLD (HCD)
542
Criminal
Trial
Provision
of the Anti-Corruption Act can be to for enquire into or for investigation of
pecuniary resources or property of any person either he is a public servant or
any other else or in other words 'an ordinary citizen' and as such provisions
of the Act is not applicable in the case of petitioner, who is 'an ordinary
citizen' is not correct. A.K.M. Muhituddin Vs. The State, 19BLD (HCD) 455
Criminal
Trial
A
Court while trying an alleged offender should strictly consider the evidence on
rec- ord without any prenotion because some time, circumstances lie in more
dangerous fashion and fortutious concoursse of event may some time give the air
of truth. Milon Samaddar @ Mihir Samadder Vs The State, 19BLD (HCD) 568
Criminal
Trial
Section
537 of the Code of Criminal Procedure may now be taken to cover an error,
omission or irregularity in the widest sense of those terms provided there has
been no fail- ure of justice and that the mere fact that imperative statutory
rule of procedure has been broken is not enough to vitiate the trial or
proceeding provided there is no failure of justice-Cr.P.C. S. 537
Md Ali
Asgar Vs. Md Esrail and others, 19BLD (HCD) 517
Ref:
37DLR223; 31C.W.N. 27-relied
Criminal
Trial
Law
does not require particular number of witnesses to prove a case and conviction
may be well founded even on the testimony of a solitary witness provided his
credibility is not shaken by any adverse circumstances appearing on the record
against him and the Court, at the same time, is convinced that he is a truthful
witness. As a general rule, a Court can act on the testimony of a single
witness though uncorroborated and one credible witness outweighs testimony of a
number of other witnesses of indifferent character. Evidence on a point is to
be judged not by the number of witnesses produced but its inherent truth-Evidence
Act; Section- 134
Al
Amin Vs. The State, 19BLD (HCD) 307
Criminal
Trial
Corroborative
evidence is not an imperative component of Judicial credence in every case of
rape. Corroboration as a condition for judicial reliance on the testimony of a
victim of sex crime is not a requirement of law but merely a guidance of
prudence under a given circumstances. The rule is not that corroboration is
essential before there can be a coniviction. The testimony of the victim of
sexual assault is vital and unless there are compel- ling reasons which
necessity looking for corroboration of her statement, the Court should find no
difficulty in acting on the testimony of a victim of sex crime alone to convict
an accused where her testimony inspires confidence and is found to be reliable.
Al
Amin Vs. The State, 19BLD (HCD)307
Criminal
Trial
When
growing of the case crops by the complainant and the cutting and taking away of
the same dishonestly by the accused are proved, the accused is guilty of theft
under section 379 of the Penal Code.
In
view of the fact that theft of the case crops by the cutting and taking away of
the same and damaging some crops by the accused in the process necessarily
involves their entry into the case land and the accused are punished for the
offences of theft and mischief, a separate conviction under section 447 of the
Penal Code is wholly unwarranted. Md. Motaleb Sardar and others Vs. The State
and another, 19BLD (HCD) 407
Criminal
Trial
The
exercise of power under section 144 of the Code is discretionary while under
section 145 Code of Criminal Procedure it is mandatory as the words
"Magistrate may" and "he shall" have been used respectively
in section 144 and 145 of the Code of Criminal Procedure. Thereafter, whether
action has previously been taken under section 144 or not, the Magistrate act
under section 145 if condition as to its application exists and must take
action either in suppression or in continuation or in the absence of any order
passed under section 144 of the Code.
Md Ali
Asgar Vs. Md Esrail and others, 19BLD (HCD) 517 Ref: 5DLR162D-Not applicable
Criminal
Trial
When
the civil court is already seized with the question of regulating possession of
the land between the same parties the criminal court has no jurisdiction to
draw any proceeding under section 145 Cr.P.C. and the Magistrates jurisdiction
is completely ousted. Abdul Majid Mondal Vs. The State and another, 19BLD (HCD)
534
Ref:
51DLR(1999) (AD)14-relied uponCriminal Trial
Although
the stamp and other papers. were signed by the complainant in Jeddah but as by
using the same in Bangladesh the of- fence alleged to have been committed in
Bangladesh is the consequence of such procurement of signature in Jeddah and as
such it comes within the purview of illustration (c) of section 179 of the Code
of Criminal Procedure and accordingly the Court before which the instant case
is pending has got the jurisdiction to try the case. Abdus Sattar Vs. The State
and another, 19BLD (HCD) 217
Criminal
Trial
An
offence under a particular section if not proved but some other offence is made
out by the prosecution, the accused persons can be very well convicted and
sentenced for the other offences proved before the Court through legal evidence
and the same is permissible in view of the provisions of sections 236 and 237
of the Code. Al Amin Vs. The State, 19BLD (HCD) 307
Criminal
Trial
It is
settled law that exculpatory statement uncorroborated by any other evidence,
cannot be the basis of conviction. Since attention was not drown while the
appellant under section 342 of the Code either to his confessional statement or
to the statement of Dulal, the appellant is obviously prejudiced and as such
the trial have been vitiated. Such defect is not curable under section 537 of
the Code. Abu Jamal and others Vs. The State, 19BLD (HCD) 411
Criminal
Trial
Section
339C Cr.P.C. does not make any provision for exclusion of the days of adjournments
secured by the defence or for non-production of the accused in the Court on the
ground of their illness. Days of adjournments obtained by the defence or ad-
journments granted for non-production of the accused for their illness or for
any such similar reason cannot therefore be excluded from 'total working days.
The
trial court having failed to conclude the trial within 270 working days, the
ac- cused acquire a right to an order of release when further proceedings of
the case should be deemed to have stopped. Motiar Rahman and others Vs. The
State and another) 16BLD(HCD)9
Ref:
45 DLR 610-Cited
Criminal
Trial
Section
339C (4) of the Code makes it incumbent upon Special Tribunal to allow bail to
the accused if he fails to complete the trial within the stipulated period
envisaged by this Section unless for special reasons it directs otherwise.
Rafiq
Hassan alias Biplob Vs. The State, 16BLD(HCD)198
Criminal
Trial
To
base a conviction on the uncorroborated testimony of a loné witness, it is
necessary that his evidence must be of unimpeachable character and it must be
free from any doubt Siddique Ali and others Vs. The State, 14BLD(HCD)138
Criminal
Trial
When
confession is the only evidence of involvement of the accused in the alleged
of- fence and his attention is not drawn to it while examining him under
Section 342 Cr.P.C for affording him to offer his explanation thereon, it must
be held that the requirement of law was not fulfilled. The accused has been
seriously prejudiced.
Abul Kashem
and others Vs. The State, 16BLD(HCD)120 Ref: 10 DLR 61-Cited
Criminal
Trial
Character
and conduct of a witness
A
witness who frequently changes his political colours to suit exigencies and is
an accused in 8 murder cases and other criminal cases involving grave offences
must be received with reservations in assessing the evidentiary value of his
statements.
In a
criminal case the credibility, the character and the conduct of a witness are
relevant and these should be considered before accepting his evidence as true. Hemayet
uddin alias Auranga Vs. The State 16BLD(HCD)558
Criminal
Trial
Material
omissions, discrepancies and contradictions in the statements of the wit-
nesses, particularly of the eye-witnesses, ren- der their evidence unreliable. Nurul
Islam and others Vs. The State, 14BLD(AD)69
Criminal
Trial Belated disclosure of material facts"
When
an eye witness to the occurrence does not disclose the names of the assailants
he allegedly recognised, the means of recognition and other material facts to
the wit- nesses who assembled at the scene immediately after the occurrence was
over, and there is no cogent reason for such non-disclosure, belated disclosure
of these material facts renders his evidence doubtful. Asadur Rahman alias Asad
and others Vs. The State, 15BLD(HCD) 290
Criminal
Trial
Recovery
of 'heroin'
When
the prosecution case is that grey coloured heroin was seized from the accused
and the chemical expert deposed that brown coloured heroin was sent to him for
exami- nation, it cannot be held that the alleged in- criminating article
recovered from the ac- cused was 'heroin' at all." Md. Zulfiqure Ali alias
Kazal Vs. The State, 15BLD(HCD) 570
Criminal
Trial
If a
witness in his statement recorded by a Magistrate under section 164 Cr.P.C.
does not state some vital facts concerning the overt/acts of the accused
persons, his evidence before the trial court on those facts be- comes doubtful.
The requirement of law is that the attention of the witness will have to be
drawn to the relevant facts. Jalal and 3 others Vs. The State, 15 BLD (HCD) 588
Criminal
Trial
When
assault was preceded by an altercation and the condemned prisoner struck only
one blow to the victim and restrained himself from repeating blows and there
was no premeditation to assault the victim and the. occurrence took place on
the heat of passion, the offence is not murder but culpable homicide not
amounting to murder punishable un- der section 304 Part I of the Penal Code.
The State Vs. Khalilur Rahman, 15BLD (HCD) 315
Criminal
Trial
Before
recording a conviction under section 302 of the Penal Code, the court must be
satisfied beyond reasonable doubts about the guilt of the accused persons on
careful scru- tiny of the evidence on record. A conviction even on high
probabilities is not contemplated in law. Md Jiaur Rahman Vs The State, 15BLD
(HCD) 459
Criminal
Trial
In a
case of dacoity at dead hours of the night the means of recognition is of vital
importance. The court is to scrutinise the evidence on recognition with great
care and caution-Penal Code, 1860, S. 395
Kuti
alias Bellal and others Vs. The State, 15BLD(HCD) 9
Criminal
Trial
In a
case of dacoity committed in the darkness of night the question of recognition
is of vital importance. When the only eye witness fails to state in his
evidence the means of recognition of the accused, the order of conviction cannot
stand-Penal Code. 1860, S. 395
Subal
Chandra Das Vs. The State, 15 BLD(HCD) 121
Criminal
Trial
Mere
retention of money by the accused for some time without its actual use or mere
delay in its disbursement, if properly explained, does not constitute an
offence under section 409 of the Penal Code. A.K.M. Hafizuddin Vs. The State,
15 BLD(HCD) 234
Criminal
Trial
Under
section 66 of the Children Act it is for the Court to consider whether a person
charged with an offence and brought before it for trial appears to be child or
not and record a finding thereon after taking such evidence as may be forth
coming at the hearing of the as forthcoming at the case. Abdul Munem Chowdhury
alias Momen Vs. The State, 15BLD(AD) 184
Criminal
Trial
The whole
purpose of unamended section 339C Cr.P.C was to whip up the prosecution and
activise the trial court so as not to delay the trial of a case unnecessarily.
It was not intended to give the accused a clean bill of acquittal, even if he
was accused of a heinous crime.
Under
Act 42 of 1992 there is no scope of stopping of a proceeding or of a corresponding
revival thereof. The new Act has effected a change in the procedural law but it
has not affected any vested right of the accused and the prosecution. By
necessary intendment the new Act will be retrospective in operation in so far
as sub-section (4) of section 339C of the new Act is concerned.
In
view of repeal of sub-section (4) of section 339C Cr.P.C. followed by re-enactment
of the said sub-section, the new procedural law will apply to all pending cases
although instituted before the amendment. Abdul Wadud Vs. The State, 15BLD (AD)
189
Ref:
Md. Aslam Vs. The State, 19 DLR (SC) 242; Babul and others Vs. The State, 15
BLD (1995)(HCD)88—Cited
Criminal
Trial
Section
6(1) of the Children Act provides that no child shall be charged with, or tried
for, any offence together with an adult. A joint trial of a child together with
an adult is clearly prohibited by law-Children Act, 1974. S. 6(1)
Kawsarun
Nessa and another Vs. The State, 15BLD(HCD) 21
Criminal
Trial
Statement
recorded under section 161 Cr.P.C. is no evidence at all and the prosecution
can derive no benefit out of it. It can be utilised by the defence under
section 162 Cr.P.C. to contradict the witness in the manner provided by section
145 of the Evidence Act.
Abdus
Subhan Vs. The State, 15BLD (HCD) 281
Ref:PLD1957(Ind)
197; 42DLR(AD)186; 17 DLR (SC)40, 35 DLR (AD) 303; 22 DLR 620-Cited
Criminal
Trial
Adjournments
secured by the accused themselves, the time lost for inability of the Court to
function for some time due to circumstances beyond his control and the time
spent due to absence of a co-accused are to be excluded in computing the period
of 270 working days. Cr.P.C. S. 339C
Abdul
Motaleb Shaikh and another Vs. The State, 15BLD(AD)130
Criminal
Trial
When a
trial is held in contravention of the prescribed procedure laid down in the
Code, such a trial cannot be held to be in accordance with law and the
consequences provided in law must follow.. 2401
The
High Court Division rightly found that the proceedings of the trial court after
the expiry of the prescribed period of 120 days and the order of conviction and
sentence pased by the learned Magistrate are illegal. Cr.P.C. S. 339C(4)
Narayan
Chandra Goswami Vs. Dinen- draNath Chakraborty and others, 15BLD (AD)118
Criminal
Trial
Right
of private defence of person may extend even to causing death when there is a
reasonable apprehension that the intended assault would cause death or grievous
hurt but this right is not available against an un- armed man. Penal Code,
1860, Ss. 99 and 100
Dalim
and another Vs The State, 15BLD (HCD) 133
Criminal
Trial
The
deposition of a witness before the Committing Court may be treated as substantive
evidence when it is transferred to the Sessions record either under section 288
Cr.P.C. or under the provisions of section 33 of the Evidence Act. Jalal and 3
others Vs. The State, 15BLD (HCD) 588
Criminal
Trial
When
the appellants were in custody in connection with another criminal case and
inspite of the Court's order for their production they were not produced before
the Court for no fault of their own, their trial in absentia is evidently
wrong-Cr.P.C; S. 339B
Muslim
and others Vs. The State, 15 BLD(HCD) 298
Criminal
Trial
Section
339C(3) Cr.P.C provides that if the trial of a case cannot be concluded within
270 working days, further proceedings in respect of the trial stand stopped and
the accused persons released.
Section
339C (4), which provides for stopping further proceedings in respect of the
trial and releasing the accused persons is a mandatory provision of law. The
subsequent amendment of law cannot take away the accrued right of the accused
persons. Babul and others Vs. The State, 15BLD (HCD) 88
Criminal
Trial
Since
section 29 of the Special Powers Act invests the Special Tribunal with all the
powers of a Court of Sessions exercising original jurisdiction under the Code
of Criminal Procedure, the Special Tribunal is competent under section 517 of
the Code to pass necessary orders for disposal of a seized property after the
disposal of the case. S.A. Hasnat Khan and others Vs. The State, 15BLD(HCD) 440
Criminal
Trial
Mere
possession of counterfeit currency notes is by itself no offence under section
25A of the Special Powers Act. In order to succeed, the prosecution must prove
that the accused used the counterfeit currency notes as genuine ones knowing or
having reason to believe them to be counterfeit. Md. Abdus Salam alias Abdus
Salam and another Vs. The State, 15BLD(HCD) 477
Criminal
Trial
When
the accused is not apprehended while smuggling goods from India and he is not
arrested with the smuggled goods in the border areas, he cannot be held liable
for smuggling punishable under section 25B(1) of the Special Powers Act. If
however he holds smuggled goods for sale and these are actually recovered from
his possession well in- side Bangladesh territory, he is liable for pos-
session of smuggled goods punishable under section 25B(2) of the Act which
provides a maximum sentence of 7 years imprisonment. Gopal Chandra Chakraborty
Vs. The State, 15BLD(HCD) 224
Criminal
Trial
In
view of the fact that 310 working days have passed after deduction of the
holidays, Fridays and the days covered by the absence of the Presiding Judge
from the station on account of leave without being relieved by a Judge with
power to try the case, it is clear that on the expiry of 270 working days, the
proceedings of the case stand stopped and a right of release accrues to the
accused per- sons under sub-section (4) of section 339C of the Code of Criminal
Procedure. Dr. Md. AzizulHaque and others Vs. The State, 15BLD(HCD) 369
Criminal
Trial Working days
The
term 'working days' used in section 339C means 'days' on which a Court actually
functions or works for the disposal of a particular case. Only such working
days in computing the specified period for conclusion of the trial are to be
counted.
The
days on which the Judge was on leave, adjournments obtained by the accused and
the period of stay of further proceedings granted by the Superior Court are to
be deducted in computing 'working days'. Zakir Hossain Khan and others Vs. The
State, 15BLD(HCD) 599
Ref: 8
BLD (1988) (AD)122; 47DLR (HCD)24; 15 BLD(AD)130-Cited
Criminal
Trial
A
criminal proceeding cannot be quashed under section 561A Cr.P.C. on the basis
of defence materials which are still no part of the record of the case. Most.
Rahela Khatun Vs. Md. Hassan and others, 16BLD(AD)266
Criminal
Trial
Section
265 Cr.P.C provides that a Public Prosecutor or an Assistant Public Prosecutor
will conduct the prosecution of a case before a Court of Session. No police
officer is thus competent to file any application directly before the Sessions
Judge seeking permission for further investigation when the case is pending for
trial before the Sessions Court. Rahamatullh Vs. The State and another,
16BLD(AD)88
Criminal
Trial
The
trial Court should draw the attention of the accused to the main incriminating
evidence against him, particularly the confessional statement, while examining
him under section 342 Cr.P.C. But mere omission to specifically draw the
attention of the accused to such evidence does not always prejudice him.
When
the accused did not retract his confession either by application from jail or
by directly filing such application in the Court at any time, no grievance on
the unsubstantiated allegations of inducement and torture can be entertained at
the last stage of the trial. Code of Criminal Procedure, 1898 (V of 1898)
Section 342
Mezanur
Rahman and others Vs. The State, 16BLD(AD)293
Criminal
Trial
Delivery
of Judgment
A
judgment is a final result of a case but it cannot be considered as an integral
part of the trial of a criminal case. Staying delivery of judgment of a case at
the conclusion of the trial in the name of the disposal of the counter case for
unlimited period is highly deprecated-Code of Criminal Procedure, 1898 (V of
1898) S.366
Mastansir
Billah Vs. Bepari Abdur Rob and others, 16BLD(AD)111
Criminal
Trial
When
in the course of tussels, hot altercations and grappling between the parties
the accused dealt only one knife blow to the victim under unexplained
circumstances, inten- tion to kill being absent, the offence comes within the
mischief of culpable homicide not amounting to murder-Penal Code, 1860 (XLV of
1860) Section-304
Abdur
Rashid Vs. The State, 16BLD (HCD)183
Criminal
Trial
In a
criminal trial determination of fact is the main task before the Court and such
de- termination is dependent upon consideration of answers given by prosecution
witnesses in their cross-examination.
Normally
in examination-in-chief the prosecution witness speaks which are favour- able
to the party examining him without dis- closing the necessary facts which are
in favour of the other side. But in the instant case the cross-examination that
was made by the defence only established the presence of the accused persons
and their participation in the occurrence. It is really unfortunate that the
learned Judges of the High Court Division discarded the evidence of the
eye-witnesses and other corroborative evidence on record without any discussion
and consideration of any of the testimony of the witnesses. It is very
unfortunate that in a criminal appeal such method has been adopted in a very
per- functory manner by the learned Judges of the High Court Division. Mahmudul
Islam @Ratan Vs The State, 20BLD(AD)249
Criminal
trial
From
the evidence of PW4 and the in- quest report it appears that Biswajit did not
commit suicide rather somebody killed him and then tried to hang the dead body
in the cowshed in a sitting position. Gulzar Biswas and others Vs The State,
20BLD(HCD)550
Criminal
Trial
From the judgment of the trial Court it is found that the learned Sessions Judge has not properly assessed the evidence of the case and failed to consider the gross discrepancies, contradictions and omissions as well as admissions of the PWs on vital points and as such it is not safe to maintain the order of conviction and sentence on the evidence on record of the case. Shaheb Ali Munshi and another Vs The State, 20BLD(HCD) 148
Non-seizure of "Kupee
Bati" obviously used in the hut of the deceased at the time of occurrence
is merely an omission of the investigating officer which can be the fatal for
prosecution as other cogent and reliable evidence is available. Maku Rabi Das
vs State, 65 DLR (AD) 240
Omission of the investigating
officer cannot be made fatal when the charge is otherwise found to be proved
beyond any shadow of doubt. Maku Rabi Das vs State, 65 DLR (AD) 240
Conduct of the
accused-ambassador -We fail to understand as to why the accused-Ambassador
chose to file the Writ Petition as a fugitive from law instead of surrendering
to the trial Court as an accused during the pendency of the case. Conduct of
the accused-Ambassador appears to be unfair, unseemly and obnoxious. ATM
Nazimullah Chowdhury vs State, 65 DLR 500
On a critical analysis of
evidence, it seems that they have deposed before the Court in a credible
manner. Their evidence is free from blemish or suspicion. ATM Nazimullah
Chowdhury vs State, 65 DLR 500
An irregular order of a court
of unlimited jurisdiction can be set aside by it on the application either
under the rules of court dealing expressly with setting aside orders for
irregularity or ex debitio justitiae if the circumstances warrant. (SK SINHA,
J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68
DLR (AD) 13
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, 68
DLR (AD) 13
Non-seizure of the means of
recognition-Non-seizure of the means of recognition is a very important factor
and vital thing of this case which has falsified the case of the prosecution
and besides this there is no legal evidence from the side of the prosecution to
implicate the accused person with the occurrence of killing the victim. Ayub
Ali vs State, 67 DLR 567
International Crimes
Tribunal-The trial has taken place after 42 years. Most of the material
evidence are lost due to death of the witnesses and some of them left the
country to avoid similar brutal eventuality. Many surviving witnesses are not
tended to disclose the actual incident because of the harrowing incidents of
brutalities perpetrated against unarmed innocent people of the locality. More
so, the accused is a powerful political leader of the locality and therefore,
the living witnesses are not dared to depose against him. Salauddin Qader
Chowdhury vs Chief Prosecutor, International Crimes Tribunal, Dhaka,
Bangladesh, 67 DLR (AD) 295.
Criminal Trial-Non-seizure of "Kupee Bati" obviously used in the hut of the deceased at the time of occurrence is merely an omission of the investigating officer which can be the fatal for prose- cution as other cogent and reliable evidence is available. Maku Rabi Das vs State, 65 DLR (AD) 240
Criminal Trial-Omission of the investigating officer cannot be made fatal when the charge is otherwise found to be proved beyond any shadow of doubt. Maku Rabi Das vs State, 65 DLR (AD) 240
Criminal Trial-Conduct of the accused-ambassador-We fail to under- stand as to why the accused-Ambassador chose to file the Writ Petition as a fugitive from law instead of sur-rendering to the trial Court as an accused during the pendency of the case. Conduct of the accused-Ambassador appears to be unfair, unseemly and obnoxious. ATM Nazimullah Chowdhury vs State, 65 DLR 500
Criminal Trial-On a critical analysis of evidence, it seems that they have deposed before the Court in a credible manner. Their evidence is free from blemish or suspicion ATM Nazimullah Chowdhury vs State, 65 DLR 500
Criminal Trial-An irregular order of a court of unlimited jurisdiction can be set aside by it on the application either under the rules of court dealing expressly with setting aside orders for irregularity or ex debitio justitiae if the circumstances warrant. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Criminal Trial-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, 68 DLR (AD) 13
Criminal Trial-Non-seizure of the means of recognition-Non-seizure of the means of recognition is a very important factor and vital thing of this case which has falsified the case of the prosecution and besides this there is no legal evidence from the side of the prosecution to implicate the accused person with the occurrence of killing the victim. Ayub Ali vs State, 67 DLR 567
Criminal Trial-International Crimes Tribunal-The trial has taken place after 42 years. Most of the material evidence are lost due to death of the witnesses and some of them left the country to avoid similar brutal eventuality. Many surviving witnes- ses are not tended to disclose the actual incident because of the harrowing incidents of brutalities perpetrated against unarmed innocent people of the locality. More so, the accused is a powerful political leader of the locality and therefore, the living witnesses are not dared to depose against him. Salauddin Qader Chowdhury vs Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh, 67 DLR (AD) 295
