Evidence Act, 1872 [Sections 101-167] Case Reference

Evidence Act, 1872

Sections 101 and 106-Section 106 of the Act deals with the burden of proving a fact especially within the knowledge of any person. Burden of proving of fact which is especially within the knowledge of any person lies upon him. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500

Section—101 Onus of Proof — in a case of disputed parentage — The onus is not on the defendant to prove the factum of marriage — The onus was clearly upon the plaintiff to establish that there was no marriage when the defendant proved acknowledgement in his favour — All the Courts below in the facts of the case misplaced the onus on the defendant for proving the marriage of Monwar Begum with Amir Ali Mia whereas the settled principle of law is that the person who denies it will have to establish it — it was for the plaintiff to prove that there was no marriage with Manwara as alleged — As such the concurrent findings of fact is no finding in the eye of law. Khorshed A lain alias Shah Alam Vs. Amir Sultan All Hyder and another 5BLD (AD) 121 Ref. 3 M.I.A. 295; 8 M.I.A. 836 and 11 M.1.A, 94; 561.A. 201; 51 C,W.N. 98—Cited.

Section 101- Prosecution must prove the charge against an accused beyond any shadow of reasonable doubt In a criminal case the prosecution must prove the charge brought against an accused beyond any shadow of reasonable doubt. Criminal cases are not like civil cases. In criminal case the accused may only take the plea of not guilty and the burden is entirely upon the prosecution to prove its case. Cross-examination is not also necessary on the entire deposition of a witness as it may damage the defence case. Non-cross-examination on a certain fact would not make the deposition of a witness on that point admitted facts. (Minority View), (Per Madam Justice Zinnat Ara)....A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593]

Sections—101 and 102

Onus — Onus on whom lies in a suit for specific performance of a contract for sale of property where the signatures in the documents regarding the contract are admitted by the defendants pleading that the same were obtained from them by threat, intimidation and coercion — Law does not require that all facts alleged by the plaintiff shall be strictly proved, for burden of proof is often lightened by presumptions, admissions and estoppels — Primarily onus, of course lies in a civil proceeding, upon the plaintiff — In this case primary onus has been discharged satisfactorily by the plaintiff — Then onus has shifted upon the defendants to prove their particular fact that their signatures were extorted — This onus they failed to prove — Consequently, the evidence adduced by the plaintiffs as to execution of the documents stands. Jabed Ali Mondal and others Vs. Jamini Kanta Dey and others, 7BLD (AD) 156

Section—101 Onus to prove parentage — When oral evidence was inconclusive to decide the question of parentage whether the Court can decide the same on the basis of the documents showing dealings with the property — The onus was on the plaintiff to prove that his father Nagar was the son of Gour Majhi — In view of the inconclusive testimony of the witnesses as to parentage of the plaintiff, the appellate Court rightly dismissed the suit when the documentary evidence as to the ownership, use and mode of transfer of the impartibly property clearly indicated that the plaintiff had at no point of time raised any claim or had any possession in the suit property. Sree Gopal Chandra Mondal and another Vs. Lasman Dasi and others; 7BLD (AD) 107

Section—101

Finding of fact—Finding of fact is ordinarily binding in a second appeal — Section 101 distinctly prohibits second appeal on a finding of fact based on legal evidence unless in the process of arriving at a finding of fact the Court has committed an error of law or a substantial error of procedure. Abdul Gaizi Khan Vs. Shainser Ali and others; 12BLD (HCD)90

Sections—101 and 102

Burden of proof — The onus of proving the genuineness of the signature and the questioned document is on the plaintiff. Shree Dulal Benergee alias Moni Vs. Shree Sha rat Chandra Pal and another. I2BLD (HCD) 277

Section—101

Burden of Proof

In a criminal case the onus of proving the charge against an accused lies on the prosecution. The prosecution must prove its case beyond reasonable doubt and the accused has no obligation to account for the death of the victim for which he is placed on trial. But when the murder of the wife of the appellant takes place in his house while she was living with him in the same house, the accused owes a duty to explain as to how his wife has met with her death. Ali Hossain Vs. The State, 15BLD (HCD)307

Sections—101 and 106

The burden of proving the manner of the incident as alleged by the prosecution lies squarely on the prosecution and it never shifts. If the manner of the incident is not proved, the prosecution must necessarily fail, no matter, whether the defence version of the case has not been proved either. In order to bring a case within the ambit of section 106 of the Evidence Act, ‘special knowledge” of relevant facts must be attributed to the accused persons in respect of commission of the offence. Only in such exceptional cases the burden of proving those facts is shifted to the accused persons for dispelling special knowledge’ in the commission of the offence. Kawsarun Nessa and another Vs. The State, 15BLD(HCD)21

Section-101

Onus of proof—both sides have adduced their evidence in support of their respective cases and when the date is fixed for argument the defendant petitioner filed two applications before the Family Court, one for examining the plaintiff opposite party No.1 by a Gynecologist to see whether she is still virgin in the instant case the plaintiff opposite party No. I is to prove her case and will get its own course and for matter she cannot be examined by a competent doctor to as certain as to whether she is virgin or not because thereby the onus of proving the defense will be illegally shifted on the plaintiff opposite party No.1. Learned Family Court rightly rejected the application of the defendant petitioner. Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher Begum 4BLT (HCD)-148

Section-101

Burden of proof—vested property—when challenged in a Court of law, the onus is heavily on the Government to prove affirmatively that the property in question is in fact a vested property, failing which some evidence to the contrary adduced by the successors-in-interest of the original tenant or the transferees showing that they are in rightful possession of the disputed properties, is sufficient to take the same out of the ambit of enemy property laws. Mere claim by the Government or by the vested property authority that a certain property is a vested property, without the necessary factual basis and legal foundation, has no validity in the eye of law. Mann, Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22

Section-101

Whether the cashier is a necessary party The plaintiff respondent filed money suit against Bank, the sole defendant appellant for realisation of deposited money by him self— the cashier is not a necessary party in the suit in the facts and circumstances of the case. Pubali Bank Vs. Md. Selim 7BLT (HCD)-21

Proof of a document

Unless objection as to admissibility of a document was taken at the earlier opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage. Pubali Bank Vs. Md. Selim 7BLT (HCD)-21

Section- 101

Onus of proof— in the instant case the transferee is a Pir and the transfer is his disciple who is not an well educated woman. In order to make the transfer in this case valid an legal transaction burden of proof that it is so for the reason of the spiritual relationship that grew between the transferor and the transferee in whom the transferor had deed faith lies on the transferee defendant No.1 (Pir). Shah Sufi Taj Islam Vs. Begum Rokeya Chowdhury & Anr. 9BLT (AD)-62

Section-101

Onus of Proof—Held: Learned Judge of the High Court Division found fault with the plaintiff for his failure to adduce evidence to show that he either purchased the machineries and spare parts from the market or fabricated the same in his factory. When defendant Nos. 1-5 acknowledged the receipt of the same there was no necessity of adducing evidence to show from whom those were purchased or from where those were fabricated. That was not an issue in the suit, Learned Admiralty Judge Misdirectioned himself to enter into such an enquiry unnecessarily When the supply of the machineries and spare parts are admitted by the principal defendants against whom decree has been sought there was no necessity of enquiring about the origin of the same. We are of the view that failures of the plaintiff adduce evidence as to from whom those were purchased or from where those were fabricated cannot deprive the plaintiff from recovering the price of the same form the defendant Nos. 1-5. Md. Giasuddin Vs. M. V. Forum Power & Ors 8BLT (AD)-272

Section-101

Provision of P.O. 149 of 1972— citizenship—suit for declaration that the plaintiff appellant is a citizen of Bangladesh —the trial court dismissed the suit under conception that the onus was upon the plaintiff according to the provision of P.O. 149 of 1975 to prove that he was a permanent resident of this country in order to entitle him to get a declaration that he was a citizen of Bangladesh and it further held that the plaintiff should have proved that on 25.03.1972 he was in this country left and the trial courts observed that the plaintiff left this country before the liberation war and came back after liberation—Held: The right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that he has given up it and acquired the citizenship of any other country. Which is very much lacking in this care and the defendant No. 4 Now respondent could not prove that the appellant lost his citizenship of Bangladesh which he had acquired by birth. So the Courts below, illegally shifted onus to prove upon the plaintiff appellant as to his Bangladeshi citizenship which he held and acquired by birth. Annada Prasad Das Vs. Dy. Commissioner& Ors 9BLT (HCD)-456

Section-101

Onus-All the donors are illiterate ‘Pardanashin’ old Muslim village women. A special rule of onus was devised in the sub-continent to protect certain category of women who suffer from some disabilities and disadvantages because of ‘pardah system. It applies to all pardahnashin’ women, literate or illiterate. Then, the protection was extended to ignorant and illiterate women though not strictly ‘pardahnashin’. Secondly, in a case when transfer by a pardahnashin’ woman is denied by such women, the onus is always on the party who wants to hold such women to the terms of the deed to satisfy the Court by evidence that she substantially understood the disposition and she executed the deed with full understanding of what she was doing and of the nature and effect of the transaction. Thirdly, when the transferee or donee stands in a position of active confidence or had fiduciary relationship with the pardahnashin’ woman he carnies additional burden to prove that such woman had independent and disinterested advice from persons other than the recipient of the document in executing a deed; Anowarul Azim & Ors. Vs Fatema Khatun & Ors. 12 BLT (HCD)255

Section-101

The plaintiffs could not prove their settlement and also could not show that the Bhawal Court of Wards Estate had authority to settle the suit land in the face of the notifications Ext. A-A(2). The courts below also did not take into consideration the broad fact that the salami receipts produced by the plaintiffs are private documents and these require strict proof for being admitted in evidence. Govt. of Bangladesh Vs. Abdur Rahman & Ors. 13 BLT(AD)173 Section- 101 Burden of Proof When PW-l Kutubuddin claims that they entered into the shops with knowledge of the owner. The owner did not take any steps for eviction during their business. The owners had no knowledge since when they possessed.. Such statements clearly prove that initial entry of the plaintiffs and possession since then was permissive and the burden was therefore heavy on the plaintiffs to establish that such possession became adverse. Hazi Ashraful Alam Vs Md. Moniruddin & Ors 13 BLT (HCD) 86

Section —101

Agreement is unregistered – burden of proof Agreement was scribed by Abul Bashar and attested by witnesses Shamsul Huq Munshi and Ripon Sheikh. In proof of Agreement neither the scribe nor the attesting witnesses had been examined from side of Vendor- petitioner. Vendor-petitioner signally failed to discharge the burden of proof which was upon him in respect of legal existence of Agreement. Selim Saial Vs A. Majid Molla & Ors. 14 BLT (HCD)62 Section-101 Onus —A wife being found killed in the house of her husband onus heavily lies upon the shoulder of her husband to explain the circumstances leading to the death of his wife. Abu Sayed (Saked) Vs. The State 15BLT(AD)302

Section 101

Burden of Proof

When a person asserts that particular transaction is a benami the onus in upon his to prove that the transaction is a benami one. Bangladesh Vs. Shamshur Rahman & Ors 15 BLT (HCD)23

Section-101

The burden of proof is envisages in section 101 of the Evidence Act is that the burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. This rule of convenience has been adopted in practice, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable Moreover, it is but reasonable and just that the suitor who relies upon the existence of a fact, should be called upon to prove his own case. The party on whom the onus of proof lies must in order to success establish a prima fade case. He cannot on failure to do so, take advantage of the weakness of his adversary’s case. He must succeed by the strength of his own right and the clearness of his own proof. Mohammad Ali Miah & Ors Vs. Md. Sekander Ali Haowlader 15 BLT (HCD)484

Section-101 read with Transfer of Property Act

Section-54

Onus – in the instant case the specific case of the plaintiff being that he neither executed or registered the deed in question nor received the consideration money as mentioned in the kabala, he was entitled to adduce oral evidence to prove his said case. As the plaintiff adduced evidence to prove his case of non-execution and non-registration of the kabala by him and non-receipt of the consideration as well, the onus shifted upon the defendant to prove that it is the plaintiff who on receipt of the total consideration of taka 15,000/- executed and registered the deed which he failed. Foez Ahmed Vs. Joynal Abedin & Ors 12 BLT (HCD) 476

S.101-Burden of proof-It is not the case that the burden of proof on the prosecution to establish the acceptance or the agreement to accept or the obtaining or the agreement to obtain the gratification of the valuable thing is at all displaced by this section. The burden still remains on the prosecution and it is only when the prosecution has discharged that burden that the presumption of (a) motive of re- ward or (b) absence or inadequacy of consideration will be made against the accused. But not until then such presumption can operate against the accused notwithstanding section 4, Prevention of Corruption Act, 1947. The burden still remains upon the prosecution to prove first the accused had accepted or agreed to accept or has obtained or agreed to obtain the gratification of the valuable thing and this proof must be in accordance with the standard of proof laid down by sec. 3, Evidence Act. Abdur Rahman Vs. State (1975) 27 DLR 268.

Sections 101 & 106— Since no special knowledge of the relevant fact as to committing of the crime could be attributed to the accused the provisions of sections 101 & 106 of the Evidence Act have no applicability in the case. Kawsarun Nessa and another vs State DLR 196.

Sections 101 & 106— Section 106 does not relieve the prosecution of the duty to discharge its onus of proving a case as has been imposed by section 101 of the Evidence Act. Shahjahan Talukder @ Manik and others vs State 47 DLR 198.

Secs. 101-103-Defence case of accident-No presumption that the act was voluntary and intentional-Burden of proof to establish the guilt.

The question for determination was whether the prosecution case of intentional killing, or the de- fence case of accident was true. In such a case, even if an act by the accused resulting in death is admit- ted, there can be no presumption that the act was voluntary and intentional, and these elements must be established by the prosecution. It is not correct to say that the accused must be found guilty if he fails to show the circumstances necessary to establish the accident pleaded by him. Sultan Mohd. Vs. Crown (1954) 6 DLR (FC) 28.

Proof of guilt of the accused - The final question for the jury, and equally for a Court which has to decide the matter without the aid of a jury, is not whether the accused has established his plea, but is the fundamental question whether the Crown has succeeded in establishing the general is sue of accused's guilt.

Any circumstance established by defence evidence or prosecution evidence favourable to the accused must go to his benefit.

It is undeniable that finally the burden lies upon the prosecution to prove each ingredient of the of fence charged. There is no appreciable difference be- tween this duty, and the duty of proving each ingredient beyond "reasonable doubt". If an accused person is able to establish by evidence, or if the prosecution evidence itself presents such features as go to establish, the existence of a reasonable doubt regarding the requisite intention in a case of murder, then the prosecution must necessarily fail. Safdar Ali Vs. Crown (1953) 5 DLR(FC) 107 (121 rt. hand col).

Such intention may, of course, be established by proof of circumstances surrounding an evident act of cruelty causing death and need not necessarily be proved by direct evidence. Safdar Ali Vs. Crown (1953) 5 DLR (FC) 107 (21 ri. hand col).

Section- 101 Onus of proof—both sides have adduced their evidence in support of their respective cases and when the date is fixed for argument the defendant petitioner filed two applications before the Family Court, one for examining the plaintiff opposite party No. 1 by a Gynecologist to see whether she is still virgin in the instant case the plaintiff-opposite party No. 1 is to prove her case and will get its own course and for matter she cannot be examined by a competent doctor to as certain as to whether she is virgin or not because thereby the onus of proving the defense will be illegally shifted on the plaintiff opposite party No. 1. Learned Family Court rightly rejected the application of the defendant petitioner. [Para-8] Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher Begum 4 BLT (HCD)-148

Section- 101

Burden of proof—vested property — when challenged in a Court of law, the onus is heavily on the Government to prove affirmatively that the property in question is in fact a vested property, failing which some evidence to the contrary adduced by the successors-in-interest of the original tenant or the transferees showing that they are in rightful possession of the disputed properties, is sufficient to take the same out of the ambit of enemy property laws. Mere claim by the Government or by the vested property authority that a certain property is a vested property, without the necessary factual basis and legal foundation, has no validity in the eye of law. [Para- 18] Maran Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22.

Section-101 Whether the cashier is a necessary party – The plaintiff respondent filed money suit against Bank, the sole defendant appellant for realisation of deposited money by himself— the cashier is not a necessary party in the suit in the facts and circumstances of the case. (Para-8) Pubali Bank Vs. Md. Selim 7 BLT (HCD)-21

Proof of a document- Unless objection as to admissibility of a document was taken at the earlier opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage. (Para-l3) Pubali Bank Vs. Md. Selim 7BLT (HCD)-21

Sections-102, 103 & 104 Suit for cancellation of Heba-bil-ewaz— The onus was upon the defendants according to prove the gift has been made intentionally, voluntarily and the consideration has passed. [Para- 12] Md. Nurul Islam & Ors. Vs. Azimom Bewa 6 BLT (HCD)- 116

Section 102
The onus being on the respondent to show that the property in question is not an abandoned property and the Court of Settlement having come to a definite finding that the respondent failed to dis- charge that onus, the High Court Division erred in law in holding that the Court of Settlement did not come to any decision as to the abandoned character of the property and further erred in law. Govt. BUDPR, Dhaka vs Mst. Shiuli Begum (Mahmudul Amin Choudhury C JCivil) 2 ADC 27

Section- 102

Burden of proof is that obligation to adduce evidence to the satisfaction of the court in order to establish the existence or non-existence of a fact contended by a party. The provision as to the burden of proof is founded on the Rule ‘el incumbit probatio, qui dicit non qui negat’– the burden of proving a fact rests on the party who substantially assents of the affirmative issue and not upon the party who denies it; for a negative is usually incapable of proof’. This Rule is derived from the Roman Law and is supportable not only on the ground of fairness but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. This Rule is an ancient Rule founded on consideration of good sense and should not be departed from without strong reasons. Mohammad Azim & Ors Vs. Doly Islam & Ors 7 BLT (HCD)- 164

Section 102-There is no further burden of proof when the assertion of P.W.I remains unchallenged. Ratan Kha Vs. The State (1988) 40 DLR 186.

Sections-102, 103 & 104

Suit for cancellation of Heba-bil-ewaz— The onus was upon the defendants according to prove the gift has been made intentionally, voluntarily and the consideration has passed. Md. Nurul Islam & Ors. Vs. Azimon Bewa 6BLT (HCD)-116

Section-102

Burden of proof is that obligation to adduce evidence to the satisfaction of the court in order to establish the existence or nonexistence of a fact contended by a party. The provision as to the burden of proof is founded on the Rule ‘ei incumbit probatio, qui dicit non qui negat”-’the burden of proving a fact rests on the party who substantially assents of the affirmative issue and not upon the party who denies it; for a negative is usually incapable of proof. This Rule is derived from the Roman Law and is supportable not only on the ground of fairness but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. This Rule is an ancient Rule founded on consideration of good sense and should not be departed from without strong reasons. Mohammad Azim & Ors Vs. Doly Islam & Ors 7BLT (HCD)-164

Sections—102

Burden of Proof

The gravity of the offence or its heniousness is no ground in determining the guilt of the accused. For securing conviction the prosecution must prove its case by cogent and legal evidence. The guilt of the accused cannot be said to have been established only with reference to the statements made in the FIR, it never being substantive evidence. The State Vs. Md. Habibur Rahman Khan, 17BLD(HCD)527

Section—102

Burden of proof- In our criminal jurisprudence the burden of proving the guilt of the accused lies squarely on the prosecution and it does not ordinarily shift on to the accused, yet, in anti-corruption cases under the Criminal Law Amendment Act, 1958 certain burden has been thrust upon the accused to account for the goods and properties entrusted to him. In the instant case the defence miserably failed to discharge that onus to dispel the effect of the overwhelming evidence on record proving the guilt of the accused beyond reasonable doubt and as such there is no substance in the instant appeal and accordingly it fails. G. M. Nowsher Ali Vs. The State, 19BLD (HCD)1 77

Section—102

Onus of proof — Onus in a suit for his on whom declaring a heba-bil-ewaz deed in favour of the defendant was forged and without consideration. Initial onus was upon the plaintiff — Plaintiff having discharged that onus it shifted on to the defendant to prove that there was the intention for making the heba-bil-ewaz and that the consideration was paid — the onus of proving the formalities in connection with thedeed is upon the person who upholds the transaction. Montajur Rahman Vs. A.K.M. Mokbul Hossain and others; 5BLD (HCD) 18 Ref. 9 DLR (1957) Page 422 — Cited.

Section—102

Burden of proof when special knowledge is involved — when the petitioner gives a list of dead persons and the opposite party does not controvert the same, the contents of the list are not proved — It is not the opposite party who maintains officially a list of dead voters — He does not have a special knowledge as to who are dead voters. Abul Hashern (Bulbul,) Vs.Mobarak Uddin Mahmud, 6BLD(HCD)250

Sections—102 and 103- Burden of proof — When both parties adduced evidence in order to set up their respective cases, the question of onus loses significance. Chinibash Pramanik Vs. Md. Nurul Hossain Mollah, 7BLD (AD) 103

Section 102—Burden of proof—When fraud is alleged—Part of a document can not be challenged— The burden of proof lies upon he who alleges the fraud. A document can be challenged as forged or fraudulent as a whole. Mo document can be partially challenged either as fraudulent or valid. Hussain Ahmed and others Vs. Sharifullah and others. 3 MLR (1998) (AD) 212

Section—102 Onus Probandi — When onus is arbitrarily shifted and found not discharged — The plaintiff did not examine any independent witness in support of its case that the food supplied by the defendant’s canteen was not good — Trial Court arbitrarily shifted the onus on the defendant for proving its defence plea — The plaintiff therefore failed to bring its case home that he needed the tenanted premises for efficient management of the canteen — Premises Rent Control Ordinance, 1963 (XX of 1963), S. l8(l)(E). M/s. Channel Cinema Ltd. Vs. Chowdhury Golain Malek; 10BLD (AD,)82

Sections 103 & 106-An obligation is cast upon the accused to prove the special plea of alibi by adducing evidence. In a wife killing case, the condemned-prisoner is liable to explain how his wife met with death, the prosecution is equally responsible to prove the case beyond doubt and the prosecution is also responsible to prove that the accused was present at the place of occurrence when the occurrence took place. In the absence of any evidence that the condemned-prisoner was present at the place of occurrence when the occurrence took place, it is difficult to hold that none else but the condemned-prisoner is responsible for killing of his wife. State vs Md Golam Sarwar @ Ripon, 67 DLR 407

Section- 103

Onus

Presumption of genuineness of Ext. 4, the pattani register, called for by the plaintiff The plaintiff claimed that she took settlement of suit land by means a ‘Dhol fordi’ and Dakhila granted by the Midnapur Zamindari Company Ltd.—The appellate court summarised its findings by way of stating that PW1 and PW2 were not competent witnesses while the witnesses of the alleged settlement Kalipada Ghose and Korban Ali were not cited as witnesses. There was no evidence that the tahsilder who allegedly gave the settlement had any authority to do so. The Dakhilas produced by the plaintiff were also not properly proved and the trial court wrongly exhibited the ‘fordi’ and Dakhilas as the basis of settlement as there was no proper proof of them — We may add that there is nothing on record to relate Ext.4 to the settlement claimed by the. plaintiff. Again, the hukumnama and other documents of settlement in favour of the plaintiff were for the plaintiff to produce. In the absence of proof of existence of the said documents the defendants could not be supposed to be in a position to produce them. Thus the High Court Division had obviously given a wrong onus and drawn an incorrect presumption of genuineness of Ext.4. Bangladesh & Anr. Vs. Abdul Latif Khan & Ors. 7BLT(AD)-208

Section-103

Onus—deed of sale dated 20.03.1973 in question does not contain any recital which would raise any doubt as to the transaction that it is not an out and out sale. It is the opposite parties No. 1 and 2 who raised the issue and asked the court to read the deed as a transaction of mortgage. They also claimed that opposite party No. I on the same date executed in ‘Ekrarnama Ext. A agreeing to reconvey the case land, Only on 28.02.1983, just four months before disposal of the case, opposite party No. 1 executed and registered a deed of sale in favour of the said land. Onus is therefore on opposite parties No. I and 2 to prove that ‘Ekrarnama Ext.A is genuine and executed on 20.03.1973 and that the sale deed is not a colourable transaction. Jahangir Alam Vs. Sri Sailish Chandra & Ors. 9BLT (HCD)-78

Section-103

Burden of Proof -—Shahabuddin Ahmed through whom the defendant got his initial knowledge of the ex. parte decree was not examined. The defendant did not examine any witness to prove is definite date of knowledge of the ex parte decree. As we find that summons and registered notices were validly and legally served upon the defendants it was the duty of the defendants to prove his initial date of knowledge Of the ex parte decree. Mrs. Shamsun Nahar Begum Vs. Salauddin Ahmed & Ors 8BLT (AD)-182

Section—103

When the plaintiff fails to prove the execution of his bainapatra by the defendant by examining the scribe and other independent attesting witnesses and fails to prove that he was put to physical possession of the suit land in pursuance of the agreement for sale, the execution of the bainapatra cannot be said to have been duly proved. Under such circumstances he is not entitled to get a decree for specific performance of the contract. Kartick Chandra Das Vs. Md. Abul Hossain Bhuiyan and another, 14 BLD (HCD) 585.

Section- 103 Onus – Presumption of genuineness of Ext. 4, the pattani register called for by the plaintiff. The plaintiff claimed that she took settlement of suit land by means a ‘Dhol fordi’ and Dakhila grarted by the Midnapur Zamindari Company Ltd. — The appellate court summarised its findings by way of stating that PW 1 and PW2 were not competent witnesses while the witnesses of the alleged settlement Kalipada Ghose and Korban Au were not cited as witnesses. There was no evidence that the tahsiider who allegedly gave the settlement had any authority to do so. The Dakhilas produced by the plaintiff were also not properly proved and the trial court wrongly exhibited the ‘fordi’ and Dakhilas as the basis of settlement as there was no proper proof of them — We may add that there is nothing on record to relate Ext.4 to the settlement claimed by the plaintiff. Agaib, the hukumnama and other documents of settlement in favour of the plaintiff were for the plaintiff to produce. In the absence of proof of existence of the said documents the defendants could not be supposed to be in a position to produce them. Thus the High Court Division had obviously given a wrong onus and drawn an incorrect presumption of genuineness of Ext. 4. [Paras-13 & 15] Bangladesh & Anr. Vs. Abdul Latif Khan & Ors. 7 BLT (AD)-208

Section—103

Burden of proof as to particular fact

A statement in the plaint or in the written statement is no evidence in the eye of law unless it is proved by examining a witness on oath. In the instant suit the defendant claimed that the original owners had left this country before 1965 and the suit property became enemy property by operation of law. The onus was upon the defendant to prove that fact either by examining any witness or by producing any reliable documentary evidence establishing that the real owners had left this country before 1965. In the absence of such evidence the property in question cannot be treated as enemy property or vested property. Sreejukta Haladhar Karmakar Vs. Bangladesh, 16 BLD (HCD) 519.

Section—103

Burden of proof — Onus of proof that the left-out co-sharer has no subsisting right of pre-emption is upon the pre-emptor — State Acquisition and Tenancy Act, 1950(XXVIII of 1951), S. 96(2). Md. Abdul Jalil Vs. Durjan Ali alias Siddique Hossain and others, IBLD(’AD,) 241

S. 105-To successfully sustain a plea of in- sanity, the burden of showing that what the accused did is excepted under section 84 of the Penal Code is on the defence though the burden of bringing the case within the exception of section 84 is not as heavy as in the case of establishing the guilt of an accused by the prosecution evidence for founding conviction-Benefit of doubt is available to an accused when evidence led raises a reasonable doubt. Abu Nasir Bhuiya Vs. The State (1978) 30 DLR 275

-Self-defence-Plea of-Evidence not led to prove the plea but it received support from prosecution evidence-Accused entitled to acquittal- Duty of court to examine accused's version in juxta- position with the prosecution evidence and the circumstances of the case. Shamir Vs. State (1958) 10 DLR (SC) 186

Burden of proving that the accused's case comes within exceptions.

Whenever an accused claims the protection of an exception to criminal liability, it is for him to claim such protection and to this extent the burden lies on him, but that does not entitle the court to presume the absence of such circumstances. Mohim Mondal Vs. State (1963) 15 DLR 615.

-Reasonable doubt-Prosecution not to examine all possible defences.

Section 105 has been enacted in order to make it clear that it is not the duty of the prosecution to ex- amine all possible defences that might be taken on behalf of the accused, and to prove that none of those defences would be of any assistance to him. Safdar Ali Vs. Crown (1953) 5 DLR (FC) 107 (109) rt, hand col).

-Burden on the accused not so heavy-Section 105 was enacted obviously to relieve the prosecution from the necessity of proving the absence of facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accus may not be established and yet it may create a re sonable doubt with regard to his guilt. Safdar A Vs. Crown (1953) 5 DLR (FC) 107 (109 r. F col).

Special plea of the raises a reasonable doubt.

Accused failing to prove his special plea aiming at bringing his case within an exception. Succeeding, however, in creating reasonable doubt in respect of his guilt-Court bound to give benefit of doubt to the accused-Entire evidence to be taken into account Md. Aslam Vs. Crown (1953) 5 DLR (FC) 133 (135 rt. hand col).

Burden of proving case covered by exceptions on accused-Nevertheless prosecution must prove ingredients of offence. (1949) PLD (Lah) 70.

Anything done by accident or misfortune- Burden of proof on the accused. Jalal Din Vs. Crown (1953) 5 DLR (WP) 58.

Anyone who claims the benefit of an exception must prove the facts entitling him to it. This is a correct exposition of law. But it does not preclude the Court from giving an accused person the benefit of an exception, if there is material on record to justify the giving of --- PLD (1953) (BJ) 17.

Grave and sudden provocation-Burden on accused to prove exception-Yet, in absence of affirmative proof, accused may have benefit of doubt raised on examining prosecution evidence side by side with defence version. 9 PLD (Lah) 31.

Section 105 of the Evidence Act casts a burden upon the accused to prove the existence of circum- stances bringing the case within any special exception or proviso contained in any other part of the Penal Code. There has been complete failure on the part of the defence to prove those circumstances. Md. Abdul Majid Sarkar Vs. The State (1988) 40 DLR (AD) 83.

Accused's statement in court should be taken into consideration in its entirety, if conviction is to be based solely on such statement. Rahim Bux Vs. Crown (1952) 4 DLR 53 (61).

S.106-Human nature being what it is, when- ever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he has abducted her with the intention of having sexual intercourse with her, either forcibly or with her consent, after abduction or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case, the burden lies upon him, under section 106 of the Evidence Act, to prove that intention. Siddique Vs. State (1959) 11 DLR 321 (1959) PLD (Dac) 956.

The officer proceeded against has 10 show either that he had jurisdiction or that he had reasonable grounds for believing that he had jurisdiction. The onus as to there being grounds for reasonable belief would be on him, under the proviso to section 1 of Judicial Officers Protection Act and under section 106 of the Evidence Act which provides that the onus of proving a fact within the special knowledge of a person is on him. Khan Gulam Qadir Vs. A.K.Khalid (1960) 12 DLR (WP) 78: (1960) PLD (Lah) 1037.

Corroborative evidence in respect of an approver's statement may in point of time relate to periods before as well as after the crime. Rafiq Ahmed Vs. State (1959) 11 DLR (SC) 91, (1958) PLD (SC)317.

Corroboration under certain circum- stances may be corroborated by the confession of a co-accused.

While presuming that an accomplice is unworthy of credit unless he is corroborated in material particulars, the court shall have regard to facts to be found in the illustration appended to illus. (b) in considering whether the above maxim docs or does not apply to the particular case before it. It follows from illustration (b) that there are cases in which an account of crime given by an accused person implicating his co-accused can be taken into consideration as corroborating the approver.

Courts should, however, be very careful in making use of the confession of the co-accused as corroboration of an approver's testimony, and the probability of the confession having resulted from previous concert should be excluded before it can be used for corroborating the approver. (1950) 2 DLR (PC) 39.

Matter within the special knowledge of the accused-Inference. Where a person is in furtive 'possession' of the corpse of a murdered man or has secret knowledge of the place where it is lying hidden from the public view, he may be presumed to have had something to do with the murder, if he cannot give a reasonable explanation of his possession or knowledge. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (46 rt. h. col.).

Accused pointing out the place where the corpse of the deceased was burnt and bones of human being, footwear and ring, etc., were discovered- Burden on accused to prove he acquired his knowledge in innocent way. PLD (1951) (Lah) 352.

Property stolen in dacoity recovered at accused's pointing out from vicinity of crime- Accused convicted of dacoity and not of receiving stolen property-Burden on accused to prove how he came to know where property was hidden. PLD (1957) (Lah) 765.

Accused's possession of the boxes containing Poppyheads established-Burden of proving want of knowledge that the boxes contain Poppyheads was on the accused. Nazir Ahmed Vs. Crown, (1955) 7 DLR (FC) 204

Section—106

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

Section-106

Burden of proving fact specially within knowledge of any person. The definite and specific defence plea is Bus No Mymensingh BA-157 driver by ! was not involved in the accident but Bus Mymensingh BA-191 belonging to the owner was involved in it. This being within the special knowledge of the accused within the meaning of section-106 of the Evidence Act, a burden was cast upon him discharge it, mere so when the prosecution proved the guilt of the accused convincing and overwhelming evidence. The accused hopelessly failed to discharge the special burden. Namaluddin Vs. The State 8 BLT (HCD)-121

Section -106

It appears that both the courts considered the defence plea and held plea to be false. It may be stated here that the defence is not always bound to give any explanation but if any explanation is given the court may consider it. The trial court after discussing and considering the evidence of witnesses found that Chapa was killed by somebody from inside the room and not by any one from outside the room through the window as claimed by the accused. The High Court Division in its turn held the same view. The High Court Division in clear terms held that it was not possible for any outside-miscreants to cause such injuries standing on nine inches wide carnish on the face and head of Chapa and kill her. The High Court Division thus in unequivocal terms expressed the clear view that the explanation given by the defence totally falls through and according to the High Court Division it was established that Chapa was killed in her room by the miscreants who were living within the house, went into her room, caused injuries in such manner that ultimately she succumbed to the injuries. In view of such concurrent findings of both the courts below on the basis of evidence on record we do not like to make further exercise on the point and we also are of the view that Chapa must have been killed by person/persons living inside the house on the night of occurrence. The State Vs. Khandker Zillul Bari 14 BLT (AD) 91

Section—106

Murder of wife—Alibi of the husband— Presumption The accused and his wife were sleeping in the same bed. The wife died due to multiple injuries on her person. In such circumstances a heavy burden is cast upon the husband to satisfactorily explain as to how his wife died. Gouranga Kumar Saha Vs The State, 17BLD(HCD)259

সাক্ষ্য আইন, ১৮৭২

ধারা ১০৬

ঋণাত্মক দায় ও নরহত্যাঃ

ঘটনার সময় স্ত্রী তার স্বামীর হেফাজতে ছিল অর্থাৎ স্বামীর উপস্থিতি প্রমাণিত না হলে সচরাচর প্রচলিত সাক্ষ্য আইনের ১০৬ ধারার ঋণাত্মক দায় নীতিটি স্বামীর উপর প্রযোজ্য হবে না। সেক্ষেত্রে রাষ্ট্রপক্ষকে যুক্তিসঙ্গত সন্দেহের উর্ধ্বে প্রমাণ করতে হবে যে- (১) স্ত্রী হত্যাকান্ডের শিকার হয়েছে এবং (২) তা স্বামীর দ্বারা সংঘটিত হয়েছে । [2023] 27 ALR 1

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

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

Sections 106 or 114- Burden of proof In most criminal matters, the burden of proof lies upon the prosecution to prove a charge against an offender, but in respect of spouse killing case, it has been established that the burden shifts upon the accused person. It is the responsibility of the accused to explain the cause for the death of his/her spouse if it is found that he or she died while in his/her custody or that they were staying jointly before the death. The High Court Division is of the view that with a view to giving legal safeguard in respect of such offences, sections 106 or 114 of the Evidence Act may be amended. Since the law is settled on the said issue, there is no reason for any amendment of the law. On the doctrine stare decisis if a 5 decision has been followed for a long 1 period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts. This doctrine is explained in Corpus Juris Secundum: 'Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed on similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable.' So, there is no need for amendment to section 106 or 114 of the Evidence Act. ..Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Sections 106-Murder-Husband obligation to explain-Ordinarily the accused has no obligation to account for the death for which he is placed for trial. The murder having taken place while the accused was living with his wife in the same house, then the accused husband under section 106 of the Act, is under obligation to explain how his wife had met with her death. In absence of any explanation coming from his side it seems, none other than the accused husband was responsible for causing death. State vs Md Hasibul Hasan, 64 DLR 291

Sections 106-The accused owes an explanation as to why he was concealing the firearms and ammunitions. But he did not give any explanation and rather the accused has absconded from the date of examination under section 342 of the Code. Joynal Abedin vs State, 64 DLR 393

Sections 106-When a wife met with her unnatural death in custody of the husband and while in his house, the husband is to explain under what circum- stances the wife met with her death. In such a case there could be no eye-witness of the occurrence apart from 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 vs Md Golam Rabbani, 68 DLR 137

Section 106-Burden of proving fact especially within knowledge-Under section 106 of the Act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This principle has been applied in many cases where the wife has been found killed in the house of the husband where they reside together. In such circumstance, the husband will have to prove by positive evidence that he was absent from the house when his wife was killed or explain by evidence how she came to meet her death. Mahabur Sheikh alias Mahabur vs State, 67 DLR (AD) 54

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

Section- 110

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

Section 110

The presumption under section 110 in this case would apply only if two conditions are satisfied viz that the possession of the person claiming long possession is not prima facie wrongful and second- ly the title of the person, in this case the plaintiff respondent, against whom the long possession is claimed is not proved. The courts below found that the defendant appellants are in possession but they could not prove their title or that they are not in possession to the knowledge of the real owner upon deny- ing his title or any kabuliyat or deed of settlement. Mati Gouri Das vs A.B.M. Hasan Kabir & Sreemati Ava Rani Aich (K. M. Hasan J) (Civil) 2ADC 449

Section—111

Burden of proof — Pardanashin Lady — Burden lies on the person who claims benefit under a deed executed by a pardanashin lady to establish that the deed was executed by the pardanashin lady after clearly understanding the nature of the transaction — The burden lies not only on the receipient of the deed, but also upon the transferee from the beneficiary. Mst. Rokeya KhatunVs. Aljan alias Aljan Bepari and others; 2BLD(4D)139 Ref. 52 l.A. 342; A.I.R. 1928 (PC) 303; A.I.R. 1940 (PC) 1,34 — Cited.

Section—111

Burden of proof — Pardanashin lady — Protection given to pardanashin lady by the special rule of onus will extend to her legal heir — If the person upon whom the property of the pardanashin woman devolves by operation of law, and who, in the facts of the case, represents her can challenge the legality of disposition. Mst. Rokeya Khatun Vs. Aljan alias Alijan Bepari and others; 2BLD (AD) 139 Ref. 33 DLR (AD) 1 — Cited.

Section—111

Hiba-bil-Ewaj—Question of absurdity of the reason for Hiba-bil-Ewaj — Special rule on onus of proof devised to protect a pardanashin lady need not be understood to create disability in her right to deal with her property — When the final Court of fact is satisfied that the questioned document is beyond suspicion, no further examination of the document is called for. Jahura Khatun and another Vs. Md. Nurul Momen and others; 2BLD (HCD) 165Ref. 70 C.L.J. 402: A.LR. 1940 (PC) 134: 45 C.W.N. 259; 82 C.L.J. 26; 59 C.W.N. 147; 6 DLR 202; 33 DLR (AD) 1; A.I.R. 1919 (PC) 24; — Cited.

Section—111

Pardanashin Lady — Discharge of special onus by the recipient of the document from a pardanashin lady — Without making any pleading that the executant was a pardanashin lady and she could not comprehend and understand the transaction there was no special onus upon the recipient of the kabala to prove that the document was a bonafide one and the executant understood and comprehended the transaction and that she had independent advice before she executed the kabala, Noad Chand Vs. Mst. Hjssain Banu and others; 6BLD (HCD) 173 Ref. A.I.R. 1956 (SC)593; A.LR. 1966 (SC) 635; 34 LA. 27: A.I.R. 1930(Sind) 25; 33DLR (AD) 1; 34 DLR(AD)266; A.I.R. 1930 (PC) 57; 28DLR(AD)57; A.I.R. 1920 (PC) 65 — Cited.

Section—111

Pardanashin and illeterate lady — Execution of deed by her — Onus on whom that she had independent and disinterested advice at the time of execution and registration of the sale deed — Mere reading over and explaining of the contents of the deed will not meet the requirement of law — Onus is on the vendee to prove that independent and disinterested advice in the matter was received by her — The party relying on a document executed by an illeterate pardanashin village woman must satisfy the Court that not only the deed was read over and explained to her but also to prove that she understood the contents and that she got independent and disinterested advice in the matter. Rangbi Bewa Vs. Md. Abed Ali and others; 7BLD(HD)319 Ref. 26 C.W.N. 517(DB).

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

S.112-Presumption as to the parent- hood of a child.

Under section 112, if a person wants to prove that he is not the father of a child he must establish that he had no access to the wife. Once it is proved that he had access to his wife, the fact that his wife was a woman of bad character and that she was accessible to other people too is no ground to hold that the child born during the continuance of the marriage, or within 280 days after its dissolution is not that person's child. Taza Gul Vs. Mst. Bibi Ai- sha I PCR 97.

Section 113A- In the facts of this case, it has been concurrently found that the in- laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in-laws to assist the victim to commit suicide. We find, especially in view of the fact that the appellants have been acquitted for the crime under Section 498 A of the Code, that abetment of suicide under Section 306 is not made out. In the circumstances, we set aside the impugned Judgment of the High Court...... Heera Lal =VS=State of Rajasthan, [3 LM (SC) 65]

Sections 114(g)-The onus lies on the prosecution to prove its case beyond reasonable doubt. The charge against the appellants have not been conclusively brought home to them. When human life pends in the scales, caution becomes the primary duty of any Court called upon to assess the evidence of the case. The prosecution has failed to prove its case beyond reasonable doubt and the convicts are entitled to get the benefit of doubt. State vs Golam Faruq, 65 DLR 254

Section 114(g)- Suspicion-Mere conjectures and probabilities cannot take the place of proof. The Court of law has to dispense justice in accordance with law and not according to the moral conviction of the Judge with regard to the occurrence. Akbar Ali Lalu alias Roni vs State, 66 DLR 134

S.114-Discovery of stolen goods from a place not within accused's domain-Presumption.

Stolen goods discovered at pointing out by the accused from a place not within his domain but close to his house and the accused explaining how he came to know the same, Court's presumption in circumstances is that the stolen goods were planted and possessed by the accused. Ainul Hug Vs. The State, (1970) 22 DLR 99.

S.114(a)-Lost article recovered from accused's hut-Guilty knowledge not proved.

Lost article recovered from accused's hut soon after occurrence Guilty knowledge not proved. If the accused gives an explanation which is reasonable though it may not be true, he is entitled to acquittal. Mir Amar Hossain Vs Crown (1954) 6 DLR $18.

-Condition precedent for the application of illus 114(a)-Accused must be in possession of stolen goods.

The condition precedent for the application of il- lustration (a) to sec. 114 is that the accused must be in possession of stolen goods. The production of property by itself would not necessarily prove his possession. It would at the most show that the accused had knowledge that the property was kept or concealed. In the absence of any incriminating statement by the accused leading to the discovery of the property, its production alone from a place which was accessible to the public would not be sufficient to establish his possession. The possession of the article must be clearly traced to him in order to justify the presumption under the illustration. Jumma Vs. Govt. (1954) 6 DLR (WP) 8.

Possession of stolen goods immediately after theft-Presumption from possession of stolen goods immediately after theft when the prisoner gives a reasonable account and there is no other evidence of guilty knowledge, he is entitled to acquittal. Majiruddin Fakir Vs Crown (1950) 2 DLR 34

Possession of stolen property, even if accompanied by a failure to account as to how such pos- session was acquired, or by a false account or by ac- counts which are contradictory would not raise a violent or strong presumption, but a probable presumption merely. Ido Vs. Crown 2 (PCR) 91.

-'Soon after the theft-No hard and fast rule as to length of period.

Does not lay down a hard and fast rule-"Soon after the theft"-Length of period depends upon circumstances of each case-Numerous articles recovered 40 days after the theft-Presumption drawn. PLD (1956) (Lah) 190.

-The mere fact that the accused person gives information of a place where an incriminating article is found does not necessarily show that he put the articles there himself and would be sufficient to sup- port a conviction. PLD 1951 (Bal) 30.

-S.114 Illustration (a) The expression "Unless he can account for his pos- session-The expression unless he can account for his possession in illustration (a) of section 114 of the Act does not mean that the accused must prove affirmatively by adducing substantive evidence that he received the stolen property in the way indicated by him. The adverse presumption can be said to have rebutted if the explanation of the accused reasonably appears to be probable. Alimullah Vs. The State. (1969) 21 DLR 645.

S.114(b)

Confessional statement against a co-accused re- quires corroboration. State Vs. Badsha Khan (1958) 10 DLR 580.

-Evidence of approver, if duly corroborated, should not be rejected merely because he is a man of depraved character. Rafiq Vs. State (1959) 11 DLR (SC) 91: (1958) PLD(SC) 317.

-"Particulars" though in plural number means also the singular "particular".

Though illustration (b) to section 114 uses the word "particulars" in the plural it has been held that corroboration on a single particular deposed to by the accomplice is sufficient provided that the "particular" tends to show that the prisoner was concerned in the crime. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (45 left. h. col.).

-If the particular proved is inconsistent or in- compatible with the innocence of the accused of the offence charged, then exhypothesi it will itself be sufficient proof of the commission of the crime by the accused and the evidence of the accomplice will thus be unnecessary. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (45 left. h. col.).

-An accomplice is unworthy of cred. it-Corroboration. Regard being had to see. 114(b), it is a serious omission to fail to direct the jury that although the uncorroborated testimony of an accomplice is admissible in evidence and a conviction based on it not illegal, yet as a matter of fact and practice it is not at all safe to rely upon his evidence unless it is corroborated in material particulars by independent evidence. Adwalta Chand Vs. Crown 1 PCR 36.

-An accomplice means a guilty associate or partner in a crime, a person who is connected with the offence, or who makes admissions of facts showing that he had a conscious hand in it. Gulam Rasul Vs. Crown I PCR 90.

-A witness not in any way concerned with the commission of the crime but being a witness to it withheld, out of fear, the information about the same until the arrival of the police, cannot be said to be an accomplice and his statement needs no corroboration, Gulam Rasul Vs. Crown 1 PCR 90.

-Approver, statement of Should not be made the basis of conviction unless there is independent corroboration connecting accused "in very clear terms" with offence charged. PLD (1959) (Pesh) 75.

-Proof of association and the purpose of association, by direct evidence or by establishing the circumstances.

The association and the purpose of the association may be proved either by direct evidence to the effect that the accused, or the accused and others, met and resolved to join together for the purpose of habitually committing dacoity or, in the absence of such direct evidence, it may even be established by proof of facts from which the association may reasonably be inferred.

The evidence of the first kind, namely, direct evidence can come from a participant or an associate alone. Therefore, the general practice in such cases is to get this direct evidence through the mouths of accomplices who are made approvers by the tender of pardon, though the practice of the Courts in this Sub-Continent has been so consistent as to harden into a rule of law that the evidence of an accomplice unless corroborated in material particulars by independent evidence, is not relied upon. Ramzan All Vs. The State, (1968) 20 DLR (SC) 49.

-Corroboration of the evidence of an accomplice Extent and nature of such corroboration.

The rule of practice requiring corroboration of the evidence of an accomplice is that corroboration must be in respect of material particulars implicating the accused, and it is not necessary that evidence of the accomplice should be corroborated in every de- tail of the crime. Abdul Khaliq Vs. The State, (1970) 22 DLR (SC) 106.

-Extent and nature of corroboration of an accomplice's evidence.

The extent and the nature of corroboration re- quired may, no doubt, vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every particular, all that is necessary is that the corroboration must be such as to affect the accused by connecting or tending to connect him with the crime.

The corroboration again need not be direct evidence. It is sufficient if it establishes the existence of circumstances from which the connection of the accused with the crime can be reasonably inferred and supports the approver's evidence in such a substantial manner as to make it safe to be relied upon. Ramjan Ali Vs. The State, (1968) 20 DLR (SC) 49.

-Corroboration of the evidence of association in respect of offence under section 400 Pak. Penal Code-Nature of as-sociation to be established.

In order to provide corroboration to the approver's evidence the practice has grown up, in such a case, to lead evidence of what has been called association, general and specific, etcetera. Such evidence of association cannot, by its very nature, be of a very precise or definite character and it is therefore essential to bear in mind that it may not always be safe to rely on the ipse dixit of a wit- ness of this kind unless he is of such a reliable char- acter that neither his veracity nor his memory can be doubted or that his identification of the person or persons so seen by him is of such a nature that it can implicitly be relied upon. The circumstances which may normally be regarded as sufficient for furnishing such confirmation might well be-

(1) that the witness had contemporaneously re- ported this fact to somebody else; (2) that other witnesses also support the testimony:

(3) that in the information, if any, lodged with regard to a dacoity the person or persons named by the witness have been shown as accused persons:

(4) that the person so named was, in fact, arrested or challand in that dacoity; and (5) that some article looted in that dacoity was actually recovered from the person named or at his instance. Evidence of such a nature must be scrutinised with care and caution in order to eliminate all chance es of false implication or even an honest mistake. Ramzan Ali Vs. The State, (1968) 20 DLR (SC) 49

Sec. 114 illustration (b)

Accomplice's evidence needs corroboration as a safeguard.

Although section 133 of the Evidence Act provides that an accomplice shall be a competent wit- ness against the accused person and the conviction is not illegal merely because it proceeds upon the un- corroborated testimony of an accomplice yet illustration (b) to section 114 of the Evidence Act is the rule of guidance to which the court should have due regard. The said illustration (b) provides that the Court may presume that the accomplice is unworthy of credit unless he is corroborated in material particulars. The law and the rule of prudence are certainly not higher in the case of sexual offences. Abdul Quddus Vs. The State (1983) 35 DLR 373

Illustration (e)-Objection on the ground that the sanction was not given by the proper authority cannot be raised for the first time in the appellate court.

Sanction is an official act. Once it is proved to have been done it should be presumed to have been regularly done. When it is desired to challenge the official act it should have been agitated in the trial court and then it could possibly be proved that the sanction was given by a competent authority. F.D. Carta Vs. State (1959) 11 DLR 239: (1959) PLD (Duc) 744

When public authority's act is challenged as malafide, the burden of proof is heavy on the person making the allegation. Azit Kumar Das Vs. Prov. of E. Pakistan (1959) 11 DLR 243.

The burden of proving that the order of arrest was malafide rests on the detenu, and in the absence of any material on the record showing that the off- cer ordering the arrest acted in bad faith, the Crown cannot be called upon to prove that the order was not illegal or improper. Churagh Din Vs. Crown (1951) 3 DLR (FC) 157.

Since the particular case is pending in the Court of the Sub-divisional Magistrate it may be presumed, in the absence of any evidence to the contrary, that the orders were signed by the Sub-divisional Magistrate himself. Panchu Vs. The State (1974) 26 DLR 297.

Section 114(g)-PWs 1, 2, 3, and 5 could not tell specifically against accused Tara at which part of the body of victim Tara dealt blow. Although PWs 4, 8 and 9 are the vital witnesses of the case they did not disclose the presence of accused Tara in the spot at the time of commission of offence, which casts a reasonable shadow of doubt as to the complicity of the accused Tara in the occurrence. The benefit of doubt goes in favour of the accused. Gias vs State (Criminal) 75 DLR (AD) 195

S.114(g) The official acts carry the presumption that these are done with regularity. So, there is also the presumption that the sanctioning authority gave the sanction after consideration of all the materials constituting the offence which were placed before it. Jainul Vs. State (1960) 12 DLR 870: (1961) PLD (Dac) 565.

S.114(g)-Where the prosecution withholds material evidence Court should draw an adverse inference against the prosecution. Ashrafuddin Vs. State (1964) 16 DLR 223.

Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590.

Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282.

Section—114(g)

Non-Production of the requisition slip by the prosecution leads to an adverse presumption against it under section 114 (g) of the Evidence Act that if the slip was produced it would show that the Director himself obtained the blank Accession Register and, thereafter, ‘gave the same to Accused Respondent No.2 for preparation of a neo Register Expunction of observations—In the facts and circumstances of the case and evidence on record, the observations made by the learned Special Judge against the informant in the judgment under appeal are, in no way, unjustified, the same call for no interference. The Solicitor, Government of Bangladesh. Vs. Feroz Mahmud and another, 14 BLD (HCD) 160.

Section 114 (g)

The officer who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the departmental review board exonerated him ignoring the said, officer's admission that he forged the sig- nature of the respondent in the indent and that the evidence of the PWS that the sig- nature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while considering this issue. Dhaka Water Supply & Sewerage Authority and others vs. Matiar Rahman (Mohammad Gholam Rabbani J)(Civil) 4ADC 278

Section 114

The High Court Division without advert- ing to the reasonings given by the trial Court for believing or disbelieving evi- dence of plaintiff's witness and defen- dant's witness reversed the findings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indi- cated earlier that the trial court thor- oughly discussed all aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortunate. Nurul Haque etc. & ors. i's Aix/us Salarn Chowdhury etc. &ors. (M. M. Ruliul Antin J)(Civil) 4ADC 573

Section 114 (g)

The officer who was directly in charge of the godown, was at first found guilty of misappropriation and was according- ly punished, but the departmental review board exonerated him ignoring the said officer's admission that he forged the signature of the respondent in the indent and that the evidence of the PWs that the signature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while con- sidering this issue. Dhaka Water Supply & Sewerage Authority and others vs. Matiar Rahman (Mohammad Gholam Rabbani J) (Civil) 4ADC 278

Section 114(g)

Declaration of title to the suit land on the averments Since the plaintiffs are found in posses- sion of the suit land there is no bar to allow the prayer for declaration regard- ing joint possession of the plaintiff with defendants No.7-10 along with declara- tion of their title; if the prayer of the plaintiffs for amendment of the plaint is not allowed they will be deprived of their legitimate right of enjoyment of their valuable properties; it is settled principle of law that amendment of the pleading can be allowed at any stage of the proceeding provided that the amenment, if allowed, would not change the nature and character of the suit and that amendment is necessary to effectively decide the real controversies between the parties in the suit. Hemayet Ali Shaikh and others vs. Ramesh Chandra Mondal (Md. Tafazzul Islam J) (Civil) 4 ADC 866

The Evidence Act (1of 1872)

Section 114

The High Court Division without adverting to the reasonings given by the trial Court for believing or disbelieving evidence of plaintiff's witness and defendant's witness reversed the find- ings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indicated earlier that the i trial court thoroughly discussed alli aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortnuate. Nurul Haque ors. (M.M. Ruhul Amin J) (Civil) I ADC 573

Section—114 (g)

Adverse presumption

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

Section—114(g)

Non-examination of important witnesses, particularly some of the neighbours, without reasonable explanation raises a presumption against the prosecution to the effect that had they been examined, they would not support the prosecution case. Benefit of doubt—Even if there may be elements of truth in the prosecution case against the accused, that by itself is not sufficient for conviction. Between “may be true” and “must be true” there is inevitably a long distance to travel and whole of the distance must be covered by the prosecution by legal and reliable evidence. Dula Mm alias Nurul Islam and others The State, 14BLD(HCD)477

Section—114(g)

Non-examination of independent witnesses, especially some of the close neighbours, calls for a presumption under section 114(g) of the Evidence Act to the effect that had they been examined they might have deposed against the prosecution. Kawsarun Nessa and another Vs. The State, 15BLD(HCD)21 Ref: 25 DLR 398; AIR 1936 (All) 833; 41DLR(HCD) 349; 31 DLR (AD) 75—Cited.

Suggestion by the defence lawyer Suggestion by the defence lawyer cannot be construed as admission of guilt by the accused. The accused is not required to prove his innocence. The prosecution must prove his guilt beyond reasonable doubt. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD)477 Ref: 27 DLR(AD)29; 44DLR(AD) 10, I.L.R. .76 Indian Appeals 147; 12 DLR (SC) 156; 12DLR (SC) 217; 36 DLR 185; 16 DLR 147; 45 DLR 171; A.I.R. 1939 (PC) 47; 25 DLR 399; A.I.R. 1957 (SC)107; 6BLD(AD)1— Cited

Section—114(g)

Although law does not require that all the chargesheeted witnesses will have to be examined at the trial but nevertheless when the prosecution withholds material witness and fails to examine natural witnesses from the vicinity of the place of occurrence without any explanation, it casts a serious reflection on the prosecution case. Under such circumstances an adverse presumption under section 114(g) of the Evidence Act should be drawn against the prosecution. Momin alias Md. Mominul Huq Vs The State, 16BLD(HCD)246

Section—114(g)

The Court may presume existence of certain facts

When the alleged occurrence took place in broad daylight on a busy pathway and the prosecution failed to examine even a single witness from the neighbourhood and furnished no cogent explanation for non- examination of such witnesses adverse presumption under section 114(g) of the Evidence Act must be drawn against the prosecution. Md. Alamgir Hossain alias Alaingir Hossain and another Vs. The State, 16BLD(HCD)270

Section—114(g)

Non-examination of the Investigation Officer

Non-examination of the Investigation Officer prejudices the defence and deprives the accused of an opportunity of cross-examining him as to the manner and method of the investigation that leads to the submission of two charge-sheets on the self-same occurrence. Abdus Sobhan Howlader and others Vs. The State,13BLD(AD)131 Ref: 40 DLR(AD) 282—Cited

Section—114 (g)

Presumption against the prosecution for withholding witnesses and evidence

When the prosecution did not examine the doctor who held postmortem examination, the investigation officer and other charge-sheeted material witnesses without satisfactory explanation, adverse presumption under section 114(g) of the Evidence Act must be drawn against the prosecution. Munsurul Hossain alias Babul Vs The State, 16BLD(HCD)326 Ref: 36 DLR 333; 28DL R 128—Cited.

Section—114 (g)

In this case admittedly there are dwelling houses on all sides of the place of occurrence but no owner of these dwelling houses was examined in this case by the prosecution without any explanation. Non-examination of these natural, probable and disinterested witnesses calls for an adverse presumption against the prosecution under section 114(g) of the Evidence Act. Tomezuddin Biswas alias Kalu and another Vs The State, 17BLD(HCD)174 Ref :40DLR348; 1 1BLD(1991)23 1—Cited.

Section—114 (g)

Benefit of doubt

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

Section—114(g)

Benefit of doubt

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

Section—114(g)

Benefit of doubt

Evidence being contradictory on the material question of recognition of the accused persons and there being no circumstantial evidence lending support to the deposition of P.W2, the sole eye-witness of the case, the accused are entitled to benefit of doubt. Nurul and others Vs. The State, 14BLD (HCD)221

Section—114(g)

Benefit of doubt

The only public witness to the occurrence is the baby taxi driver P.W. 2 Aslam who failed to recognise the accused persons and he could not say the name of the baby taxi driver or the number of the babi taxis from which the contraband phensidil syrup was recovered and he did not see from whose physical possession the said syrups was recovered. The baby taxi driver in question being neither a witness nor an accused in the case and no neighbouring shop-keeper having been examined as a witness in the case, the prosecution case becomes doubtful. Under such circumstances the accused are entitled to benefit of doubt. Md. Farque Hossain and 2 others Vs. The State, 15BLD(HCD)163 Ref: 1973 Cr1. L. J. (All) 1096—Cited

Section—114(g)

Benefit of Doubt

In order to succeed the prosecution must prove its case beyond all reasonable doubts by cogent reliable and sufficient evidence. The accused is entitled to get all benefits of doubt till the persecution succeeds in proving its case convincingly. Simply because several other cases are pending against the accused persons, no adverse presumption can be drawn against them in determining their guilt. The State Vs. Md. Musa alias Musaiya alias Shafir Bap, 15BLD(HCD) 169 Ref: 5 BLD (HCD) 9; 46 DLR (HCD) 77; 27 DLR (AD) 29; IIDLR (SC) 84; 20 DLR 780; A.I.R. 1916 (All) 50; SC Cases 1982, 368 (1); 1IBLD(HCD) 295—Cited.

Section—114(g)

Benefit of Doubt

In a case where bitter enmity between the parties is proved some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. In the absence of such corroboration of the evidence of interested witnesses, the accused becomes entitled to the benefit of doubt. When FIR mentions gun shot injuries on the head and waist of victim Waliullah but the postmortem report does not mention any such injuries on the body of the victim and the Investigating Officer did not find any alamat of firing, the prosecution case becomes doubtful. Serajul islam and others Vs. The State, 15BLD(HCD)613

Section—114(g)

Benefit of doubt

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

Section—114(g)

Benefit of doubt

For securing conviction in a criminal case the prosecution must prove beyond all reasonable doubts the individual liability of each and every accused person. Since there were fourteen inmates living in the house of occurrence on the fateful night and the prosecution has failed to prove beyond doubts as to which of them actually committed the alleged murder of victim Chapa, it cannot be said that the guilt of the 3 appellants has been proved. Although the defence plea that some miscreant has committed the murder from out side the window falls through and it is found that victim Chapa was murdered by some of the inmates of the house, still then since individual liability of the appellants could not be ascertained, the accused are entitled to get benefit of doubt. Zahirul Alam Kamal and another Vs. The State, 16BLD(HCD)428 Ref: 39 DLR(AD)177—Cited

Section—114(g)

Wireless Telegraphy Act, 1933, Section—5

When an action is taken or decision is taken by maintaining a file, that file must be produced before the court to show that the act was done properly. In the instant case, the relevant file has been withheld. Hence, presumption under section 114(g) of the Act shall apply. Inspite of repeated orders, the file was not produced by the respondents with whom those were lying. In such circumstances, the Court is constrained to draws an adverse presumption under section 114(g) of the Act. Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459.

Evidence Act, 1872

Section 114(g)– Non-examination of material witness and the adverse presumption against the genuineness of the prosecution case Convict-petitioner was convicted for the offence under section 19(3) of the Narcotics Control Act, 1990 and conviction and sentence were also affirmed by the Sessions judge in Appeal. The learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any evidence on record showing that the land wherefrom the ganja plants were recovered actually belongs to the convict-petitioner. Shasher Ali Vs. The State 12 MLR (2007) (HC) 38.

Evidence Act, 1872

Section 114(g)– Non examination of material witness cited in the chargesheet raises adverse presumption. Conviction based only on the evidence of police personnel held unsafe. In the instant case the convict appellants were convicted and septet iced only on the evidence of police personnel. No independent witnesses were examined. Moreover the evidences were contradictory. The learned judges held the charge against the convicted appelants not proved beyond doubt and acquitted them. Uzzal and Golarn Rasul alias Mamun Vs. The State 15 MLR (2010) (HC) 311. Evidence Act, 1872

Section 114(g)– Adverse presumption for non-examination of material witness Onus of proving the charge against the accused beyond all reasonable doubt entirely lies upon the prosecution. Non-examination of material witness without satisfactory explanation raises adverse presumption against the prosecution case resulting in the acquittal of the convict-appellant on benefit of doubt. Linckon Dewan @ Dewan Nurul Huda Vs. The State 11 MLR (2006) (HC) 432.

Section—114 (e)

Public Notice — Presumption of service of such notice — Public notice for acquisition of property being an official act a presumption is available under the Evidence Act that it has been regularly performed unless the contrary is proved — Emergency Requisition of Property Act (XIII of 1948), S. 5(1). Government of Bangladesh, represented by the Deputy Commissioizer, Dhaka and others Vs. Basharatultah being dead his heirs and successors: Fade Karim and others; 1OBLD (AD)11O

Section—114

Presumption of Judicial or official Acts—Whether illustration (C) of the section provides that all acts are presumed to have been rightly and regularly done. Illustration (C) of section 114 of the Evidence Act provides that all acts are presumed to have been rightly and regularly done — This presumption applies to judicial as well as to official acts — Where judicial or official act is shown to have been done, it is presumed to have been done rightly and regularly complying with the necessary requirements. Md. Akhtar Hossain Vs. The Governinent of the People’s Republic of Bangladesh and others; I2BLD (HCD,) 541

Section—114(e) (f)

Service of notice u/s. 106 T.P. Act — Notice sent by registered post and returned with endorsement “refused” — Notice presumed to be served — Examination of peon to prove the endorsement is not necessary — Mere denial of the tenant that he did not receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption — General Clauses Act, 1 897 (X of 1897) Dr. Jainshed Bakht Vs. Md. Kainaluddin, 1BLD (HCD) 97Ref. A.I,R. 191 5(Cal)3 13; 39C.W.N. 934; 51C.W.N. 650; 52 C.W.N. 659; 6 DLR267; A.I.R. 1918 (PC) 102; A.I.R. 1958 (Cal) 251; 22 DLR 664; 17 DLR(WP)26—Cited.

Section—114

Reserved Forest — Whether in the absence of notification under the Assam Forest Regulation or Forest Act nature of the forest land under the Forest Department as ‘reserved forest’ is affected — Even assuming that the defendant Forest Department did not acquire any title in the suit land of the forest as no subsequent notification required under section 17 of the Assam Forest Regulation VII of 1 891 or under section 20 of the Forest Act, 1927 was issued, even in that case, the possession of the Forest Department in the lands of the notification Ext. A is not denied or disputed and the long possession of the Forest Department is a fact — So under section 114(e) and (f) of the Evidence Act there is presumption that notification under section 17 of the Assam Forest Regulation was duly made -— Forest Department has got title and possession in the suit land or at least a better title and prior possession than thoe of the plaintiff—Assam Forest Regulation (VII of 1891). S. 17. Kanglu Khasia Vs. Divisional Forest Officer and others; 7BLD(HCD)96

Section 114(g)

That the plaintiff submitted an applica- tion objecting to the appointment of one of the members of the enquiry commit- tee on the grounds that the said member was Junior to him in service and had strained relationship with him, but the objection was not taken into consideration the office who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the depart- mental review board exonerated him ignoring the said officer's admission that he forged the signature of the respondent in the indent and that evi- dence of the PWS that the signature in the indent was that of the respondent should not had been treated as legal evi- dence for not examining the disputed Signature by a hand writing expert. The learned trial Judges obviously had in his mind section 114(g) of the Evidence Act while considering this issue. DWS & Swearage Authority vs Matiar Rahman (Mohamad Gholam Rabbain J) (Civil) 2ADC 231

Section-114 (g)

In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 1 l4(g) of the Evidence Act. Abdur Rahim Vs. Arifur Rahman & Ors 6BLT (HCD)-51

Section-114(g)

Suit for redemption of mortgage — before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. 1 is the plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation had been given from the side of the plaintiff for his non-examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination of the scribe led to an adverse presumption against the plaintiff of the fact had he been examined he would not have supported the plaintiffs version of the case of mortgage. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9 BLT (AD)-12

Section- 114(g)

Before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. I is the Plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation has been given from the side of the plaintiff for his non- examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non- examination of the scribe led to an adverse presumption against the plaintiff to the fact that had he been examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination against the plaintiff to the fact that had he been examined he would not have supported the plaintiff version of the case of mortgage. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9BLT (AD)-77

Section-114(g)

We upon considering the materials on record and considering that none of tile witness including the husband Tuli and Moina was examined and due to their non-examination presumption would be that had they been examine they would not have supported the prosecution stow raises a serious doubt as to the truth of the prosecution case. Khan Yeakub Ali Vs. The State & Ors 16 BLT (AD)255

Section-114(g)

The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally knowing the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to have appear before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor (s) who is a material witness as regard particular mater then if not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s). Hajee Lal Miah Vs. Nurul Amin & Ors. 13 BLT (AD)145

Section-114(g)

বিবাদী দরখাস্তকারী এই মোকদ্দমায় মূল বিবাদী হওয়া সত্ত্বেও এবং ঘটনাবলী সম্পর্কে সর্বাপেক্ষা ওয়াকিবহাল হওয়া সত্ত্বেও সে নিজে কোন সাক্ষ্য প্রদান করে নাই বা সাক্ষ্য প্রদান না করিবার কোন কারণও আদালতের সম্মুখে উপস্থাপন করে নাই। এই প্রসঙ্গে সাক্ষ্য আইনের ১১৪(জি) ধারার বিধান ও নীতি প্রনিধান যোগ্য। Md. Motiar Rahrnan Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313

Section 114(e)- Presumption of correctness of official acts— So long not rebuted by showing the contrary, the official acts done shall be presumed to have been done duly and correctly. Bangladesh represented by the Secretary Ministry of Land vs. Abul Hossain and others. 3, MLR (1998) (AD) 193.

Section-114(g) The alamats including the incriminating articles along with the alleged heroine were not produced before the trial court- The alleged report of the chemical examiner was also not available in the record- material witnesses the I/O and the chemical examiner, none of them was produced as a witness it must be held that the learned Additional Sessions Judge committed illegality is not drawing an adverse presumption against the prosecution under section 114 (g) of the Evidence Act. Ashok Kumar Saha Vs. The State 2 BLT (HCD)-79

Section-114(g) The confessional statement Ext.7 of the confessing accused bears the reference of one Haider Ali son of Janab Ali who is neither witness nor accused in this case. The neighbours as well as the persons who allegedly took part in the occurrence as per confessional statement of the accused Akbor Ali are the relevant witness and non examination of any of them as witnesses or brining them on dock as accused creats presumption U/ S 114 (g) of the Evidence Act and raises a question of doubt in the prosecution and benefit of this defect would go to the accused. Md. Akbor Ali & Ors. Vs. The State 7BLT (HCD)-317

Section-114(g) In view of admitted bitter relationship between the parties as well as the private witnesses so examined in this case it was desirable for the prosecution to examine the close independent and disinterested neighbours. In the face of clear admission that 40/50 co-villagers were present just after the occurrence and they having not been produced in Court to show the bonafide of the prosecution, we find no with alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence. Korban ali & Ors. Vs. The State 11BLT (HCD)-267

Section-114(g) Onus of proof—although the prosecution must prove the guilt of the accused beyond all reasonable doubt, nevertheless after it has been shown that the wife at the relevant time of occurrence was at her husband's house and that she is subsequently found dead an obligation is cast upon the defence to account for the circumstances leading to the death of the deceased failing which the husband will be responsible for the death of the deceased. Gias Uddin Vs. The State 11 BLT (HCD)-8

Section-114(g) In the face of clear admission that 40/50 co-villagers were present just after the occurrence including the chairman and member of local union parishad and they having not been produced in Court to show the bonafide of the prosecution, we find no other alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence. Monu Sheikh & Ors Vs. The State 12 BLT (HCD)-177

Section-114(g) The independent person —'Kamla' kader who was allegedly residing in the P.O. house in the night of occurrence having been with-held, we find no other alternative but to hold that had he been examined in this case, would not have supported the occurrence as alleged. Monu Sheikh & Ors Vs. The State 12 BLT(HCD)-177

Section-114(g) The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally knowing the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to have appear before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor (s) who is a material witness as regard particular mater then if not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s). Hajee Lal Miah Vs. Nurul Amin & Ors. 13 BLT (AD)-145

Section 114(g)

It is a cardinal rule in the law the best available evidence should be brought before fee court to prove a fact or the points in pue- when material witnesses are not called in a case and no sufficient explanation has been given for their absence, the court may draw a presumption that they would not support the prosecution. Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473

Section-114(g) In the instant case, the neighbors as mentioned above are the material witnesses who have been withheld from the examination and the prosecution has also failed to convincing reasons for their examining them. The prosecution examined on relatives and evidence cannot be relied n. Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473

Section – 114(g) None of the brothers and sons of the deceased was examined. Not a single neutral neighbouring people was examined. Due to their non-examination presumption would be had they been examined they would not have supported the prosecution story. Non-production of the wife of the deceased, an alleged injured witness, raises serious doubt as to the truth of the prosecution case. Abul Kalam & Ors. Vs. The State 14 BLT (HCD)214 Section -114(g) ?????? ?????????? ?? ???????? ??? ?????? ???? ????? ?? ???? ??? ??????? ?????? ??? ??? ?? ??????? ?????? ?? ?????? ??? ????? ??????? ?????? ??????? ??? ???? ?? ???????? ??????? ??? ???(??) ????? ????? ? ???? ???????? ?????? Md. Motiar Rahman Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313

Section-114 (g) In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 114(g) of the Evidence Act. [Para- 13] Abdur Rahim Vs. Arfin Rahman & Ors 6 BLT (HCD)-51

Section 114(h)

The law is well settled that the extent of jurisdiction of the revisional Court is limited. The revisional Court is within its jurisdiction in reversing the judgment of the lower Court if the same is the result of misreading of the evidence or has been made leaving the legal evidence out of consideration or that while arriving at the decision misconstrued the documentary evidence or left the vital evidence out of consideration without assigning any reason. If the judgment of the lower Court does not suffer from any one of the aforesaid defects the revision- al court is not competent to disturb the finding and decision arrived at by the last Court of fact. Bangladesh the DC. Jessore vs Ershad Ali Mondal (Md. Ruhul Amin J)(Civil) 2ADC 293

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

Section 115- Doctrine of promissory estoppel- The Appellate Division held that if the Ministry of Education had the authority to affiliate a college/school for providing degree courses, in that case also, a teacher of a private college/school could claim a right of the privilege of MPO after such affiliation on the said doctrine. This doctrine may be invoked if the decision of the authority deprives a person some benefit or advantage which he either had been permitted to enjoy by the authority, which he could legitimately expect to continue until he is intimated some rational grounds for withdrawing it and he has been given an opportunity to comment, or has received assurance from the authority that they will not be withdrawn without giving him an opportunity of advancing reasons for contending that they should not be withdrawn. Gov. of Bangladesh & others Vs. Md. Akram Ali & others, [1 LM (AD) 114]

Production of Additional Evidence- This is an Evidence Matter:- exclusionary provision restricting the production of additional evidence with the exceptions as mentioned in clauses (a) and (b) of rule 27 (1). In the facts of the instant case, in the absence of any order of the appellate Court requiring production of any evidence, any party may, by permission of the appellate Court, produce the deed in question "for any other substantial cause", as provided in Rule 27 (1) (b). ..... Harunur Rashid & others -VS- Mosammat Yarun Nissa & others, [1 LM (AD) 385]

Section-115

The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. [Paras- 17 & 20] Bangladesh Pajatan Corporation & Ors. Vs. Md. Mafizur Rahrnan & Ors. 2 BLT (AD)-49

Section-115

Whether suit is riot barred by estoppel and waiver. The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession he had to pray for year- ly lease of the suit property for saving his possession, albeit under protest and lost no time in coming to the court for vindication of his grievance—In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were misled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. [Paras- 12 & 13] Maran Mondal & Ors. Vs. A. D. C. (Rev). 6 BLT (HCD)-22

Section- 115

Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the pre-emptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it— Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. [Para- 11] M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6 BLT (HCD)-66

Section- 115

The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellants counsel. Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. [Para-8] Md. Jahangir Kabir Vs. Bangladesh 4 BLT(AD) -14

Section—115

Whether an attesting witness is bound by the contents of a document- There is no evidence in the instant case that Sheikh Babu had any knowledge about the contents of the document attested by him beyond his mere attestation. Therefore it cannot be said that Sheikh Babu was in any way bound by the transaction by the kabala in question. [Para—9] Amanatullah & Ors Vs. AU Mohammad Bhuiyan & Anr 6 BLT (AD)-1

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

Section 115— Promissory Estoppel— Previous approval of Government and subsequent cancellation— When arbitrarily done—The approval given by the Government to certain proposal does not constitute promissory estoppel. Government can no doubt, cancel its approval but it must do so by showing sound and proper reasoning, otherwise such action cannot be sustainable in law. The Government must act consistently and -not whimsically. The Chairman, Board of Investment and others Vs. Bay Trawling Limited and others. 3, MLR (1998) (AD) 54.

Section 115- Estoppel and Waiver— Cannot be against statutory rights—There can be no estoppel or waiver against statutory rights. To act in a particular way under protest to protect one's right from impending hazards, does not constitute estoppel or waiver. Dayat Chandra Mondal and others Vs. Assistant Custodian, Vested and nonresident property and A.D.C (Rev) Dhaka and others. 3, MLR(1998) (HC) 18.

Promissory Estoppel— When the promisor cannot fall back—Once promise is made the promisor is legally bound to execute lease deed in favour of the promisee. The promisor cannot fall back and is bound by the promissory estoppel. Dhaka City Corporation Vs. Government of Bangladesh and others. 1, MLR (1996) (HC) 256.

Section 115—Waiver and estoppel— Plea of waiver and estoppel in order to operate as a bar has to be proved by cogent evidence. Rokeya Begum Vs. Md. Abu Zaher & others. 5 MLR (2000) (AD) 171.

Section 115— Estoppel—Statutory rights-not defeated— Statutory right cannot be taken away by a mere assertion of allegations of estoppel or waiver or acquiescence. Unless proved by cogent and reliable evidence, the principle of estoppel does not operate. Abdus Sobhan Sheikh Vs. Kazi Moulana Jahedallah & others. 5 MLR (2000) (HC) 140.

Section- 115

The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. Bangladesh Parjatan Corporation & Ors. Vs. Md. Mafizur Rahman & Ors. 2BLT (AD)-49

Section-115

Whether suit is not barred by estoppel and waiver. The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession, he had to pray for yearly lease of the suit property for saving his possession, albeit ‘under protest and lost no time in coming to the court for vindication of his grievance— In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were M/Sled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. Maron Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22

Section- 115

Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the preemptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it—Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6BLT (HCD)-66

Section-115

The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellant’s counsel. Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. Md. Jahangir Kabir Vs. Bangladesh 4BLT (AD)-14

Section—115

Whether an attesting witness is bound by the contents of document. There is no evidence in the instant case that Sheikh Bagu had any knowledge about the contents of the document attest ed by him beyond his mere attestation. Therefore it cannot be said that Sheikh Bagu was in any way bound by the trans action by the kabala in question. Amanatullah & Ors. Vs. Ali Mohammad Bhuiyan & Anr. 6BLT (AD)-1

Section-115

Doctrine of Promissory Estoppel

Plaintiff remained in possession over suit property since the year 1968 first as a tenant under Md. Amin and then under the Government as an allottee and plaintiff paid Government including all arrear rents and Government also took decision that the suit property would be sold to plaintiff on the price fixed by it, Equity and natural justice demand that plaintiff is not be. deprived of the suit property. Government, thus is very much bound by its promise to sell the property in favour of plaintiff and it cannot now fall back and also cannot say that the suit property would be put to auction—on the strength “Doctrine of Promissory Estoppel” defendant Government is under a legal duty to execute a document of title with respect to suit property on acceptance of the price fixed by valuation committee constituted by defendant Government and the selling of suit property by auction to anybody else otherwise than plaintiff is illegal. Govt. of Bangladesh Vs. A.S. M. Ferojuddin Bhuiyan 9BLT (HCD)-149

Section —115

Admittedly, Fourth-Twelfth Defendants- Opposite parties as Plaintiffs Instituted a suit being Title Suit No.306 of 1978 in the Sixth Court of Munsif at Dhaka for declaration that exparte decree passed in Title Suit No. 195 of 1967 is void, fraudulent, in-operative, illegal and not binding upon Plaintiffs. In the plaint, Plaintiff-Petitioner Sreemati Han Rani Basak had been depicted as daughter of Kala Chand Basak, resident of 26, Mohajanpur Lane, Police Station Sutrapur, Dhaka. In the face of showing Plaintiff-Petitioner Sreemati Han Rani Basak as daughter of Kala Chand Basak it does not lie in the mouth of Fourth-Twelfth Defendants-opposite parties to install the case that plaintiff-petitioner Han Rani Basak is not the daughter of Kala Chand Basak and Fourth-Twelfth Defendants are bound by their admission and they Stand estopped/precluded to say that plaintiff is not the daughter of Kala Chand Basak. Sree Narayan Chandra Basak & Ors Vs. Govt. of Bangladesh & Ors (HCD)506

Section-115 read with State Acquisition and Tenancy Act, 1950

Section-95 and 95A

The plaintiff attested the Kabala of defendant No. 1, exhibit A(2). The plaintiff explained in his deposition that he put his signature on the request of the defendant and that he thought that the deed was in respect of other land. He also stated that they live as neighbors—by attestation to deed exhibit A(2), the plaintiff cannot be held to have knowledge of the contents of the deed, exhibit A (2) in order to be estopped under Section- 115 of the Evidence Act for claiming restoration of the suit and under Section-95 and 95A of the State Acquisition and Tenancy Act, 1950. Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238

Section—115

Estoppel — Plaintiff’s karsha right sold in auction — Defendants claiming kol-karsha right setting aside the auction sale under section 174(3) of B.T. Act impleading the plaintiff in the proceeding — Plaintiff is estopped from denying defendant’s kol-karsha. Sunil Kumar Biswas Vs. Mohammad Idris and others, 1BLD (AD)367

Section—115

Estoppel — Series of litigation’s between the parties ultimately concluded by a compromise decree — Defendant gave up his claim of Tk, 1000/- as a consideration of compromise — Subsequent suit which in effect is directed against the compromise is hit by the principle of estoppel. Abdul Mujib Chowdhury Vs. Syed Abdul Mutalib and others; 1BLD (HCD)467

No estoppel against Statute — Whether this rule of law can be invoked by one to takes advantage of his own fraud — The rule is attracted only when its invocation will defeat the public policy behind a Statute — If, in disregard of the obligation imposed by section 75A upon the landlord he has alienated his land he cannot subsequently raise an objection to nullify his own action — The plaintiff- appellant has filed the suit certaintly not for the benefit of the Government, nor is there any reason to suppose that the statutory provisions would be nullified if the declaration sought for is not granted — If he is allowed to succeed he would be enabled to take advantage of his own fraud. Sree Sudhir Chandra Saha and another Vs. Matiran Bewa, being dead her heirs Nazmul Rahrnan Sarker and others; 6BLD (AD) 182 Ref. A.I.R. l937 (PC)1 14; (1903)30 l.A. 114; (l964)I6DLR(SC)685 —Cited.

Section—115

Right of Pre-emption — Whether barred by acquiescence and estoppel — When the pre-emptor negotiates the sale under pre-emption or the facts are such that his acquiescence can be safely concluded, the doctrine of estoppel comes into full play — His conduct will be a bar even though he files his application for pre-emption in a statutory right — State Acquisition and Tenancy Act, 1950(XXVIII of 195 1),S.96. Moulana Abdul Karim Vs. Nurfahan Begum and others; 6BLD (HCD) 125 Ref. A.I.R. 1968(SC) 933; PLD 196 l(SC)436(444); 22 DLR 449; A.I.R. 1947 (Oudh)81; A.I.R. 1951 (Nagpur) 451; AIR. 1950(Madhya Bharat)85; A.I.R. I 925( Lahore)57; A.I.R. 1928(P.C.)190— Cited.

Section—115

Resignation from service — Employee of Biman Bangladesh Air Lines resigning with immediate effect allowed to resume his duties — Whether the employer in such a position waived its right to continue the services of the employee — When a permanent employee, as in the present case resigns with immediate effect the employer is required neither to accept nor to reject the resignation — The question of acceptance or refusal of resignation arises only when the employee gives a notice of resignation — Since the petitioner resigned with immediate effect, he has only to surrender his pay in lieu of notice period — But by allowing the employee to resume his duties from 4.8.87 the employer literally waived its right to discontinue his service — It is as if the employee has not taken any notice of the letter of resignation and thus caused the employee to believe that he was still in service — the employer was therefore estopped by its conduct from saying that the employee was no longer in service — Bangladesh Biman Corporation Employees (Service) Regulations, 1979, Peg. 53. M.A. Mannan Vs. Biman Bangladesh Air Lines, 9BLD(HCD)516

Section—115

Promissory Estoppel — Principle of

When a party acts upon Government assurance, the latter is estopped from denying such position particularly when there is no formal contract executed between the parties and a right vests in him. There was acute shortage of sugar in the country and the government encouraged the importation of sugar under Wage Earner’s Scheme exempting so much of customs duty and sales tax leviable thereon as in excess of 50% and 10% respectively — The importer respondent imported sugar acting upon assurance of the Government — the subsequent notification dated 6. 11 .84 withdrawing confessional rate with retrospective effect can have no operation when a right has vested in the importer inasmuch as the respondent had acted upon assurance that the favourable terms mentioned in the notification dated 16.10.1984 will be applicable to him — He acted upon his assurance and now the Government cannot fall back upon it and say LriZ he will have to pay customs duty at the rate that prevailed on 16.11.1988, which reduced the exemption —- This is clearly a case of as the respondent had acted on the assurance given by the Government and a right vested in him could not be taken away. The Collector of Customs, Customs House, Chittagong and others Vs. Mr. A. .Hannan, 1O BLD (AD) 216

Section—115

Estoppel — Bar of estoppel when not applicable — Once a candidate is declared Chairman by notification in the official Gazette he acquires a legal status and by his subsequent conduct, it cannot be said, he created an estoppel against statute itself. Hazrat Ali Vs. Election Commission and others; 10BLD (HCD)157

Section—115

Estoppel-Under the Retirement Rules, 1968, the word ‘competent authority’ has been defined as the authority competent to make appointment of such service — From the definition, it is clear that the competent authority to make appointments in Barisal Pourashava is the executive head, namely the Chairman. Since the appointment of the petitioners was made by the then Chairman of the Pourashava and since the petitioner joined their services on the basis of those appointment letters and rendered 12 years uninterrupted service their appointment cannot now be said to be made irregularly and, if any irregularity was there initially, it has been cured by lapse of time. Kanaklata Halder and others Vs. Barisal Pourashava and another 10BLD (HCD) 381

Section—115 Estoppel When on his own volition, the Respondent induced the Appellate to allow him to retire from service, which is akin to and in substance an order of release, the Respondent now cannot be allowed to say that his order of release is illegal. He cannot be allowed to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. Bangladesh Parjatan Corporation, represented by its Chairman and others Vs. Mr. Mofizur Rahman and another, 14 BLD (AD) 61.

Section—115

Estoppel

To bring a case within the scope of estoppel as defined in section 115 of the Evidence Act, the person claiming the benefit must show that he was not aware of the true state of things. If he had the means of knowledge about the real state of affairs, estoppel will not operate. Sarafat Hossain Vs. Dr. Islam Uddin, 14 BLD (HCD) 253.

Section—115 State Acquisition and Tenancy Act, 1950, Section—96 In the absence of conclusive evidence of waiver to operate against him, the pre-emptor cannot be estopped from exercising his right of preemption. Md. Ajmat Ali Vs. Jamaluddin and others, 14 BLD (HCD) 563. Ref: Akhlasur Rahman and others Vs. Shafur-ullah and ors, 14 BLD(AD)20—Cited.

Section—115

Estoppel

A party cannot blow hot and cold in his stand before a Court of law. He is not entitled to approbate and reprobate in the same breadth. After having participated in the election and being defeated, the defendant cannot disturb the functioning of the elected manager without getting the election of the latter declared illegal by a competent Court. Anwar Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260. Ref: 42 DLR 498; 5 B.C.R. (AD) 85; 35 DLR(AD) 182; 10 BLD 17; (1947) A.C. 46 (PC) 56; (1940) A.C. 412; (1940) All. E.R. 425; Halsbury’s Laws of England, 3rd Edition, Vol. 15 Pagel68; 5BLD(AD) 54-Cited

Section—115

Plaintiff having proved the contract, payment of full consideration and delivery of possession in part performance of the contract, the Railways or the Government is estopped from challenging the validity of the contract concluded with the plaintiff. Pronab Kumar Chakraborty and Others Vs. The Govt. of the Peoples Republic of Bangladesh and others, 14 BLD (HCD) 2.

Section—115

Bangladesh Service Rules, Rule—9

Admittedly, the plaintiff was granted LPR on 31 May, 1990, but he gave representation to the Government for reconsideration of his age which was rejected on 30 August, 1990. Thereupon the plaintiff received all his dues upon retirement in September 1991. It is after that he brought the suit on 2 October 1991 challenging the memo dated 23 December 1989. These facts clearly show that the plaintiff had acquiesced in the decision taken by the Corporation about the date of his retirement and waived his claim for extension of service. Rule 9 of the Service Rules sets a bar to a change of the date of birth of the incumbent as recorded at the time of appointment. Bangladesh Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan being dead his heirs: Bali Begum and others, 19 BLD (AD) 106. Ref: 36 DLR (AD)69: BCR1984(AD) 51; 1990(3) SCC 685(705) and (1972) AC1027— Cited.

Section—115

Transfer of Property Act, 1882, Section—43

In order to find an estoppel, the representation i.e. a party’s declaration, act or omission must be clear, definite, unambiguous and unequivocal. The real state of things were known to both the parties namely the transferor and the transferees of the kabala and there is no proof of erroneous misrepresentation and as such there is hardly any scope of the operation of section 43 of Transfer of Property Act. Ali Akbar Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122. Ref: 1921 Cal. L. 3. Vol. 33 page 522; 6PLR 181, 43 DLR(AD) 87; 42 DLR 434- Cited.

Section—115

Estoppel

The action of the Local Revenue Officer in accepting the plaintiff and his successive predecessors-in-interest as tenants in respect of the suit property under the Government is binding on the Vested Property Department and the latter cannot claim the suit property as a vested property. The action of the A.D.C, (Revenue), who is the local administrative head of both the revenue department and the vested property department, allowed himself to be indulged in oppressive litigations and this was strongly deprecated. Additional Deputy Commissioner (Revenue), Narayanganj Vs A.K. M.Latiful Karim and others, 17 BLD (HCD) 249. Ref: (1949) 1 K.B. 227—Cited.

Section—115

Estoppel

To establish a case of estoppel or waiver it is essential to show that the party alleged to have waived his right acted in such a manner as to lead the other party to believe and act that such rights have been enforced. The essence of the act of estoppel lies in the fact that one party by his conduct has led the other party to alter his position. A case of estoppel has not been made out in the instant case. Md. Jahangir Kabir Vs Bangladesh, 16 BLD (AD) 85. Ref: 45 DLR 112; 42 DLR (AD) 189; A.I.R. 1984 (SC) 921; 18 DLR (SC) 354; Indian Appeals (189 1-92) Vol. XIX, page 203; Ambur Nair V.Kelu Nair, AIR 1933(PC)l67.

S.115-Estoppel in criminal cases- The rule is that where an authority is permitted by law to function only once and communicates to the Court that it has functioned in a particular way it -will not be permitted by the Court to say that subsequently it functioned in a different manner as it subsequently did. This rule which insists on finality and consistency in litigation is not estoppel as enacted in section 115 of the Evidence Act which only is also an effort to solidify security cooperation with both Japan and the United States to better deal with nuclear threats from North Korea. Abdul Gani Vs. State (1959) 11 DLR 338: (1959) PLD(Dac) 944

-Child witness-Competency to testify, when should be decided.

It is not imperative for the court to subject a child witness to a preliminary examination before his evidence is received. The Court may, when the witness is actually giving evidence in Court, satisfy itself that he is capable of understanding the questions that are put to him and of giving an intelligible reply. In such a case the evidence is certainly admissible. It is, however, desirable that the Court should make such preliminary investigation in order to save the time of the Court if it decides against the competency of the witness to give evidence before IL The State Vs. Abid Hossain, (1967) 19 DLR 408.

-Utmost care should be observed in acting upon the testimony a child wit- ness.

A child has a strong memory but little con- science and can easily be tutored by interested per- sons to depose according to their desire and it is, therefore, of utmost importance that the court care- fully scrutinizes the evidence of the child before accepting it. The State Vs. Abid Hossain, (1967) 19 DLR 408.

-Child witness-A boy of 13 is not a child witness of tender age-His evidence cannot be reject ed merely on an objection that he is a boy of 13 years. The State Vs. Badiuzzaman, (1973) 25 DLR 41.

-Child witness-Testing his intelli- gence, before his evidence, not a condi- tion precedent,

There is statutory provision of law that requires the Court to test the intelligence of a child witness at the initial stage to find out whether he is capable of understanding questions and giving intelligible answers. It is, however, highly desirable that the in telligence of a child witness should be tested before commencement of his examination.

This section does not lay down that testing of the intelligence of a witness of tender years is a con- dition precedent to the reception of his evidence in Court. Hari Pada Debnath Vs. The State, (1967) 19 DLR 573.

-Capability test of a child witness Where it is evident from the testimony of a child witness in the dock that he was capable of giving ra- tional and consistent answers and was capable of un- derstanding the right and the wrong, mere absence of a note in the deposition sheet of the trial court as to the capability test of the child witness is not a matc- rial irregularity so as to render the whole evidence unacceptable. State Vs. Abdur Rashid, (1972) 24 DLR 18.

-Competency of a child witness to depose.

The general rule is that the capacity of the per- son offered as a witness is presumed. The child wit- ness (in the present case) having been put to the test laid down in the section, the trial Court proceeded to examine the witness.

The competency of children is regulated not (by their age) but by degree of understanding which they appear to possess. Abdullah Shah Vs. The State (1968) 20 DLR (WP) 63.

-Child witness-Testing of intelligence of witness of tender age is not a condition precedent to the reception of his evidence-Preliminary examina- tion of a child witness before receiving his evidence is not imperative-Person who can understand ques- tions and can give rational answers to them is a competent witness to testify in Court. The State Vs. Badiuzzaman, (1973) 25 DLR 41.

Section—116

Estoppel of tenant and licensee

Section 116 of the Evidence Act provides that neither a tenant/licensee nor anyone claiming through him can deny the title of the landlord! licensor after admitting his title at the beginning of the tenancy. Smriti Ranjan Das and another Vs. Bifan Behari Roy and anr, 14 BLD (HCD) 573. Ref: Ramdashi Paul Vs. Sarabala Dashya and others, 14DLR 810; Joykumar Datta and others Vs Sitanath Datta, 4 DLR 401—Cited.

Section—116

Tenant’s estoppel — It is founded upon a contract — when a person enters into possession of immovable property as a tenant of another person then neither he nor any body claiming though him shall be permitted during continuance of the tenancy to deny the land-lord’s title however defective that title might be. Hajee Abdus Sattar Vs. Mahiuddin and other. 6BLD (AD) 224 Ref: 49 l.A. 299; A.LR. 1933 (PC)29 — Cited.

Section—116

Estoppel — Estoppel against a tenant — A tenant during his possession is estopped from denying that the landlord who let him into possession had no title at the time entry — The estoppel is however restricted to denial of the title at the commencement of the tenancy — It is open to the tenant even without surrendering possession to show that since the date of commencement of tenancy, the title of the landlord came to an end or that he has been evicted by the paramount title holder — The defendant is estopped from questioning or denying the exclusive title of the plaintiff landlord who let him into the possession of the suit property at the beginning Of the tenancy. Fazal Kariin Vs. Sree Dulal Kanti Baidya and another; 6BLD (HD) 1O5 Ref: A.I.R. 1913 (PC) 96; AIR. l935(PC)59; A.I.R. 1966 (SC) 629;— Cited.

Evidence Act, 1872

Section 118–Child witness is competent when found capable of proper understanding. Telephonic conversation recorded leading to the arrest of the accused and recovery of the victim supported by ocular evidence can well form the basis of conviction. The conviction and sentence based on consistent and reliable evidence on record to the exclusion of any reasonable doubt affirmed by the High Court Division are held by the apex court perfectly justified. Jasimuddin and another Vs. The State 11 MLR (2006) (AD) 162.

Section—118

Child witness

Under section 118 of the Evidence Act a prosecutrix, who is the victim of rape or of sexual offence, is undoubtedly a competent witness and she is entitled to receive the same weight as is attached to an injured person in case of physical violence. The same degree of care and caution must therefore attach to the evaluation of her evidence as in the case of an injured witness in a case of physical violence. Once the Court is satisfied that the evidence of the prosecutrix can be safely accepted and relied upon there is no need for any corroboration to her evidence. Jahangir Hossain Vs The State, 16BLD (HCD)238 Ref: (1960) 12 DLR (SC) 165; (1967) 19 DLR (SC) 259;13 BLD(AD)79; 1952 SCR 377; A.I.R. 1983(SC)753; A.I.R. 1980 (SC) 658; 47 DLR 54: 15 BLD 34—Cited

Section 118— All persons, who can understand the questions put to them or can give rational answers to those questions are competent to testify before a court. It is not imperative for the court to subject a child witness to preliminary examination before reception of his evidence. The court may satisfy itself during the progress of the evidence in court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is, desirable that the court should make an endorsement about its satisfaction. Seraj Miah vs State 49 DLR 192.

Section 118—Though a child witness, PW 2 received injuries in the hands of the appellants when his father was done to death and the witness having testified about the factum of the occurrence and the same having not been shaken in cross-examination, the witness, though a child, should be believed in the facts of the case. Forkan alias Farhad and another vs State 47 DLR (AD) 149.

Section-118 Mode of Ascertaining Competency of a Child witness. It appears that in the instant case, a minor boy aged about 5/6 years is the only eye witness to the occurrence but in his cross -examination stated that he did not see the occurrence and he deposed as per dictation of the information of the case with whom he has been living since the occurrence-Learned Sessions Judge while examining a child witness did not look to his intelligence and competency and there is no such endorsement in the order sheet or deposition or judgment- there is also no sufficient corroboration by any independent and reliable witnesses- learned Sessions Judge was not justified in conviction the accused appellants relying on the solitary evidence of a child witness. Kawsaun Nessa & Anr VS. The State 3 BLT (HCD)-122

Section-118 The position of a prosecutrix is a little different from that of an injured person simpliciter. The possibility of a prosecutrix being a collaborator cannot always be ruled out. Therefore a corroboration of the evidence of prosecutrix by at least some circumstantial evidence or a medical examination is always desirable. Md. Hasan Vs. The State 7 BLT (AD)-378

Section—118

Evidence of a child witness

Section 118 of the Evidence Act provides that all persons who can understand the questions put to them or can give rational answers to those questions are competent witnesses to testify in Court. It is not imperative for the Court to subject a child witness to a preliminary examination before reception of his evidence. The Court may satisfy itself during the progress of the evidence in Court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is desairable that the Court (trial court) should make an endorsement about its satisfaction in the ordersheet, in the deposition sheet or in the body of the judgment. There is no legal compulsion that the Court must ask preliminary questions to test the capacity of a witness to testify. Siraj Miah Vs The State, 17BLD (HCD)295 Ref: 1952 SCA 40; 143 Indian Cases 479; 11 DLR (Dhaka) 338; 25 DLR 4—Cited

Section 118- Child witness- A child as young as 5/6 years can depose evidence if she understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinised and caution has to be exercised in each individual case. The Court has to satisfy itself that the evidence of a child is reliable and untainted. Any sign of tutoring will render the evidence questionable if the Court is satisfied, it may convict a person without looking for corroboration of the child's evidence. As regards credibility of child witness, it is now established that all witnesses who testify in Court must be competent or able to testify at trial. In general, a witness is presumed to be competent. This presumption applies to child witnesses also.... Abdul Haque (Md.) -VS- The State, [10 LM (AD) 472]

Section 118 Preliminary examination of a child witness Testing of intelligence of a witness of a tender age is not a condition precedent to the reception of his evidence. Therefore, preliminary examination of a child witness is not at all necessary.....Abdul Haque (Md.) =VS= The State, [10 LM (AD) 472]

Section—118

Child witness

A child witness is a competent witness to give evidence in the Court provided it appears from its deposition that it could understand the questions put and give rational answers thereto. If the child, though of tender age, was found to be intelligent to understand the questions put to him and to give rational answers to those questions then his capacity to give evidence was on the same footing as that of any other adult. But in such a case it would be desirable for the Court before examining the child as a witness, to test his intellectual capacity by putting a few simple and ordinary questions to him and to record a brief proceeding so that the higher Court may feel satisfied as to the capacity of the child to give evidence. The State Vs Ali Hossain,18BLD (HCD) 655 Ref: AIR 1937 (Patna) 662; 1BLC (1996) 173; 43DLR(AD)(1991)234;A1R1953 (Patna) 246—Cited

S.123-Claiming privilege against production of document or giving of an- swers. Privilege under the section against production of documents can be claimed only when the disclosure of such papers may be prejudicial to the State.

A mere claim of privilege against production is not enough. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13.

Claim of privilege should be supported by evidence in court giving some indication as to how the disclosure would affect the State's interests. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13.

-The words in the section cannot contemplate allowing privilege to be claimed where departmental proceedings have been taken against a clerical subordinate and in which the production in evidence of the documents concerned might have been of very mate- rial assistance to the Court in arriving at a correct decision over the matter in issue before it. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13.

-Some indication should be given to the court as to why privilege under section 123. Evidence Act against production of a document is claimed; what injury to the public is apprehended, or what affairs of State are involved in the matter. Without such indication the Court may draw an adverse inference from the non-production of the document concerned. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13

Where documents are wrongly withheld claiming privilege under section 123, inference against prosecution will be drawn. Crown Vs. Sul- tan Ahmed (1957) 9 DLR (WP) 13.

-The discretion given to the head of a department is clearly confined to granting or withholding permission to the giving of such evidence: but he has no power to determine the question whether the evidence is of the description in respect of which his permission is required. PLD (1955) (Lah.) 39

-The expression "affairs of State" in sec. 123 covers only such affairs of State whose disclosure or divulgence would be likely to seriously injure or jeopardise some important interest of the State. PLD (1955) (Lah) 39.

-Question whether disclosure of particular document would be against public interest or not rests with head of department concerned and Court cannot go into the matter-Copies of documents of privileged official records procured by illegitimate means by unknown persons and exhibited in Court-Such evidence cannot be permitted to be adduced (per M. Akram, J.) Syed Abul A'ala Moududi Vs. State Bank of Pak. (1970) 22 DLR (WP) 59.

-Evidence as to affairs of State-Unpublished official record relating to affairs of State are privileged and no one is permitted to give evidence relating to such save with permission of the head of department concerned-Decision regarding preliminary question whether particular document belongs to class of unpublished record relating to affairs of State or not must rest with court. Syed Abul A'ala Moududi Vs. The State Bank of Pakistan, (1970) 22 DLR (WP) 59.

Secs. 123-124-The appellant was put in detention under Punjab Public Safety Act. The Senior Superintendent gave no reason for his arrest nor indicated the nature of prejudicial act and when questioned as a witness in Court about it he claimed privilege against disclosure under sections 123 and 124, Evidence Act.

Held: It was for the Court to determine whether the privilege had been rightly claimed. If the Court comes to the conclusion that the witness was entitled to claim privilege no hostile inference could be drawn. If, on the other hand, the privilege was not rightly claimed, it was open to the Court to compel the witness to answer the questions put to hum. Chirag Din Vs, Crown (1951) 3 DLR (FC) 136.

-Orders of detention are frequently based on confidential information which public officers can- not be made to disclose in view of provisions of sections 123 and 124. This, however, does not mean that the public officer concerned cannot be asked the reasons which "satisfied" him that the detention was necessary. When such a question is asked, it is for the witness to claim privilege and bring the communications which he does not wish to disclose within the provisions of secs. 123 and 124. Md. Hyat Vs. Crown (1951) 3 DLR(FC) 172 (189-190),

-The officer ordering the arrest is not justified in refusing to answer material questions with regard to factum of his satisfaction by virtue of sec.124, Evidence Act. PLD (1950) (Lah) 451.

-The Court has to determine, when the witness is in the witness box, as to whether he is entitled to claim privilege with respect to certain communication or whether the privilege cannot be claimed thereof. If the privilege is properly claimed, no hostile inference under illustration (g) of section 114 of the Evidence Act can be made against him. Md. Hyat Vs. Crown (1951) 3 DLR(FC) 172 (188 ri-h. col.).

-When a claim of privilege is made, it should be decided then and there. The question cannot be re- served for decision until the final judgment is given. If a public officer claims privilege without due care and caution, the Court is not relieved of the duty of determining whether sec.124 of the Evidence Act is not being made a device for keeping back from the Court information which the Court is entitled to obtain. Md. Ilyat Vs. Crown (1951) 3 DLR (FC) 172 (189 ri-h. col.)

-Applies only when privilege is claimed by a public officer-Confidential reports on Government officers are not documents relating to affairs of State. Ferozuddin Vs. Crown (1954) 6 DLR 162.

-Witness claiming privilege with valid grounds--Presumption that disclosure, if made, would have gone against him. PLD (1950) (Lah.) 429

Section 124- Judicial Ethics-

Judicial ethics is an expression which defies definition. In the literature, wherever there is a reference to judicial ethics, mostly it is not defined but attempted to be conceptualized. According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed: (i) The identification of standard to which members of the judiciary must be held; and (ii) a mechanism, formal or informal, to ensure that these standards are adhered to. A reference to various dictionaries would enable framing of a definition, if it must be framed. Simply put, it can be said that judicial ethics are the basic principles of right action of the Judges. It consists of or relates to moral action, conduct, motive or character of Judges; what is right or befitting for them. It can also be said that judicial ethics consist of such values as belong to the realm of judiciary without regard to the time or place and are referable to justice dispensation.

On the question of cross-examining the Chief Justice similar prayer was made in Venoy Chandra (Supra). The Supreme Court outright rejected the prayer observing that the criminal contempt of court undoubtedly amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law, if any, has always been summary. The Court explained the summary procedure that the matter shall be disposed of by affording an opportunity to the contemnor. The Court observed "In such procedure, there is no scope for examining the Judge or Judges of the Court before whom the contempt is committed. To give such a right to the contemnor is to destroy not only the raison d'être for taking action for contempt committed in the face of the Court but also to destroy the very jurisdiction of the Court to adopt proceedings for such conduct."

No further explanation is necessary in this regard. This is the accepted principle being followed in this sub-continent over a century and even if the contemnors have no knowledge, the learned Counsel having expertise of appearing before the highest Court of the country must have minimum knowledge in this regard. We are shocked in the manner of the learned Counsel has defended the contemnors and drafted the petitions and the affidavits. Normally in contempt proceedings the lawyers are cautious in the selection of words and language, and for their mistake the litigants suffer. These types of proceedings are sensitive matters and the Judges always caution the lawyers in admitting or defending the contemnors. In this case the lawyer has shown callousness. So this Court has committed no infirmity in rejecting the prayers made by the contemnors.

The second offending part of the publication is that the writer questioned how the members of Salauddin Qader Chowdhury's family can meet one of the Judges who is in seisin of the matter? The writer did not disclose the name of the Judge but in his defence, he disclosed the name of the Judge and he was none but the Chief Justice of Bangladesh himself. This statement is also false, inasmuch as, the contemnors admitted in their affidavits that no member of the Salauddin Qader Chowdhury's family met the Chief Justice. According to them, some one on their behalf met the Chief Justice and requested him not to keep A.H.M. Shamsuddin Chowdhury, J. in the Bench. Now the question is, how did he come to know that the family members of Salauddin Qader Chowdhury met with Chief Justice? Assuming that someone met the Chief Justice, now the question is did he commit any remotest type of misconduct only by meeting someone? The Chief Justice is the only authority to constitute benches of both the Divisions. If the litigants have any grievance against any Judge then who will decide such apprehension? If the Chief Justice did not have such power the administration of justice will collapse. Therefore, the Chief Justice is gateway to the litigants, lawyers and other interested persons. The Counsel had no semblance of idea about the functions of the Chief Justice of Bangladesh.

Besides administration of justice, being the guardian of the judiciary, the Chief Justice does administrative works relating to the entire judiciary in Bangladesh and in course of his administrative works, he sometimes takes notice of grievances of the litigants through their representatives, and in person who are unable to engage a lawyer. This is the normal business of the Chief Justice. The Constitution empowers the Chief Justice to constitute benches of both the Divisions. Sometimes the Chief Justice excludes a particular Judge from any bench and sometimes he gives power to another Judge and sometimes directs the Courts to refrain from hearing any particular matter and gives direction in which manner the particular type of case or cases should be disposed of. The contemnor questioned in which path the relatives of Salauddin Qader Chowdhury met the Chief Justice. The simple answer is, in the same path A.H.M. Shamsuddin Choudhury,J. met the Chief Justice. He questioned whether the victim's family members met any Judge but in the affidavit he himself has admitted that someone requested the Chief Justice on his behalf. He then questioned whether it was within the ethics of a Judge? This writer has exceeded all norms. He questioned ethics of the Chief Justice.

He then said, the Prime Minister postponed the tour program of one Justice abroad. The writer was pointing fingers at the Chief Justice. The Chief Justice in open Court declared that he postponed the program but did not explain anything. He then directed the Attorney General in open Court to make an official statement as to whether the office of the Prime Minister or the Prime Minister had prevented the Chief Justice to go abroad. The Attorney General being the chief Law Officer of the country intimated in open Court that neither the Prime Minister nor anyone from the office of the Prime Minister ever made any request to the Chief Justice preventing him from going abroad. Learned Counsel for the contemnors objected to this statement and prayed that the Attorney General should make a statement by sworn affidavit. We are astounded in the way the learned Counsel was nakedly making submissions which were beyond the norms and practice of this Court. The Court outright rejected his prayer and accepted the statement. So the writer in a calculated manner wanted to demean and undermine the power and the authority of the Chief Justice of Bangladesh and the Attorney General. He also made wild allegations against the Chief Justice of Bangladesh.

He made libelous statements. These statements are not only contemptuous but they are also criminal offence.

The next statement he made is that, the tour of the Chief Justice was sponsored by the BNP-Jamat organizations. Here again how he was dared to make such statement is beyond comprehension. He then posed the question, "why a disputed businessman went abroad ahead of the tour. What was happening there?". Of course possibly, he regained his senses and thereby could not disclose the name of the businessman, although he had the courage to disclose the name of the Chief Justice in the conversation with A.H.M. Shamsuddin Choudhury,J. wherefrom he got the information that the tour was sponsored by BNPJamat organizations. The writer used such derogatory language which stunned the Judges present in the Bench.

The contemnors did not disclose or type all the complete sentences of the conversation and intentionally delete some words. Though the contemnors produced the audio cassette, the members of the Bench did not feel any interest to listen to the conversation once they came to know that this conversation was made between the Chief Justice and A.H.M. Shamsuddin Choudhury,J. The learned Counsel submitted that Swadesh Roy did not collect the audio cassette from A.H.M. Shamsuddin Choudhury,J. He admitted that the conversation was made with none but A.H.M. Shamsuddin Chowdhury,J. He failed to notice that the Chief Justice maintains secrecy and confidentiality whenever a Judge meets him. Even if it is assumed that A.H.M. Shamsuddin Chowdhury,J.

did not record the conversation, then the reporter secretly got it recorded or collected from other source but he failed to comprehend that he cannot do so far, it itself is an offence pure and simple. The subject of the discussion being related to the administration of justice and secret, it should not be made public and such publication is detrimental to public interest.

It is not a communication between two Judges. It is a conversation between a puisne Judge and the Chief Judge in confidence which imports a special degree of secrecy. It is a paramount necessity that the Judges of the highest Court should always act within the scope of their duties for the public interest and the administration of justice. And it is very greatly in the public interest that the Judges who are holding constitutional posts and concerned in every aspect of maintaining the rule of law, should act as a single unit, bound to each other by a certain loyalty to the rule of law, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the process of rule of law must be gravely prejudiced. The law is conscious of this requirement and enforces it by means of laws and constitution. In this connection section 124 of the Evidence Act is relevant, which reads: "No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that public interest would suffer by disclosure. The purpose of this section is clearly wider the mere overcoming of such objection. Here the writer stands on the same footing and he has committed criminal offence.

The concerned Judge was very much eager to clarify some words from the lips of the Chief Justice and repeatedly kept on putting questions. So it was apparent that he was deliberately putting the questions and met the Chief Justice on previous occasions requesting him to include him in the Bench and the last one was a deliberate attempt with a view to maligning the Chief Justice.

The writer claims that he is a law abiding citizen and his statements are based on truth and bonafide. We failed to understand which statement is true. None of the statements as discussed above are true except the conversation of the Chief Justice with A.H.M. Shamsuddin Choudhury, J. The topic of the conversation was the request of Chowdhury, J. to keep him in the Bench for hearing. The Chief Judge turned down his first request and then he wanted to be included in the hearing of the appeal in respect of the property of Mr. Moudud Ahmed. So A.H.M. Shamsuddin Chowdhury, J. met the Chief Justice before hearing of Salauddin Qader's appeal or at least in the midst of the hearing. He knows that in the midst of hearing, a Judge cannot be included in a matter.

We fail to understand why the impugned reporting was made after the conclusion of the hearing of the appeal of Salauddin Qader Chowdhury on 16th July, 2015. Why the writer chose to publish this report after the conclusion of hearing and before the delivery of the judgment? If he had the bonafide intention as claimed, what prevented him from publishing the same before hearing of the matter? Why he published such a report just before the delivery of the judgment? Who would be benefited thereby if the Chief Justice had withdrawn himself from the Bench? Certainly it was Salauddin Qader Chowdhury. The writer might have ill motive to frustrate the delivery of judgment of Salahuddin Qader Chowdhury, otherwise he could have published the same before the hearing or at least before the conclusion of hearing.

Learned Counsel appearing for the contemnors submitted that as the writer had collected materials relating to a news about movement of Salauddin Qader Chowdhury's family members who met the Chief Justice, there was some days delay in publishing but it was published with the motive that the Judges should be cautious at the time of delivery of judgment. This itself is a serious type of contempt. This is a lame excuse for, even if it is assumed that the writer or the editor has no knowledge about the law that during the pendency of a matter, any publication is made which interferes with the administration of justice amounts to criminal contempt. Their Counsel should know about it. This publication not only interferes with the administration of justice but also scandalizes the Court and the Judges, and therefore, the writer and the editor have certainly committed criminal contempt.

A.H.M. Shamsuddin Chowdhury, J. is the junior most Judge of the Appellate Division. By a sworn affidavit the contemnors stated that Chowdhury, J has consented to become a witness on behalf of the contemnors. We thought the statement as a ridiculous one but when the learned Counsel was serious to the statement we were beyond bewilderment. (Paras:133- 147); ..... The State VS Mr. Swadesh Roy, [2 LM (AD) 576]

S.125-Secret information obtained in the ordinary course of duty and duly authenticated may constitute sufficient materials for making a detention order.

In support of the allegation brought against the detenu Government produced before the High Court some authenticated secret report.

It was contended that such copies of the statement produced by the Government have got no evidentiary value to be treated as a material for consideration.

Held: The right of the State to claim privileges in respect of secret information can never be denied. Such right is also acknowledged under section 125 of the Evidence Act, and a police officer cannot be compelled to say whence he has got any information as to the commission of an offence.

The official reports coming ordinarily in the course of official duty from the archives of the Government kept in the Special Branch of the Police and duly athenticated by the Superintendent of Police are worth consideration whether they constitute sufficient materials for making an order under-rule 32 of the Defence of Pakistan Rules, 1965. M.A.Aziz on behalf of K.M.Obaidur Rahman. Vs. Province of East Pakistan, (1969) 21 DLR 503.

S.128-Official communication-To constitute a privileged occasion, there must be an interest or duty in the person to whom the communication is made as well as in the person making it.

At the conclusion of the arguments a petition was filed before us on behalf of the Central Government stating "the pamphlet has, as is clear, given offence to the High Court and since its apparently inadvertent distribution to the High Court amounted to breach of courtesy which was never intended, the Central Government is sorry that it inadvertently gave offence to the High Court for which it has the highest respect"

Held: This cannot be treated as an apology showing consciousness of a wrong done. The plea of privilege is not available in the case. Edward Snel- son Vs. Judges of HC Lahore (1964) 16 DLR (SC) 538.

S.132-Proviso.

The question whether a certain statement was made by a witness under compulsion must depend upon the facts of a particular case. The compulsion may be either express or implied, but if from the circumstances of a case it can safely be inferred that the witness believed himself to be under compulsion to make a statement, he would be entitled to claim the protection of the proviso to section 132 of the Evidence Act, regardless of the fact whether he had objected to the question or not. When a person is called as a court witness in a case and he is questioned by the court then there would be an inference of an im- plied compulsion within the meaning of the proviso to section 132 of the Evidence Act. Dr. M.Abdul Sami Vs. State (1962) 14 DLR (WP) 1: 1962 PLD (Lah.) 271.

Ss. 133 and 134-Where bitter enmity with parties is admitted some sort of Ss. 134 and 136-Relationship of witnesses-Mere relationship of the witnesses with the deceased or informant cannot be the only ground to discard the evidence corroboration of the interested witnesses is required as a rule of prudence.

State Vs. Rustom (Criminal), 18 BLC (2013)-HCD-429.

S.133-Accomplice is a person who in fact participates in crime-Informer is one who catches bribe-taker-No corroboration of the statement of the 'informer is necessary as is required for an 'accomplice'. Zafar Ali Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.

-Accomplice's evidence-corroboration.

Corroboration of the evidence of an accomplice in material particulars does not mean that the independent evidence by itself must be sufficient, both as to the corpus delicti and as to the identity of the accused, for the purpose of establishing his guilt.

All that is required is that the corroborative evidence should indicate that the story given out by the approver is substantially true. The main evidence is that of the approver's-the corroborative evidence lends support to it by showing that it is not untrue, Nur Alt Gazi Vs. State (1961) 13 DLR 740: 1962 PLD (Dac) 249

-Confession of a co-accused, even when corroborated, cannot be the foundation of a conviction.

Confession of a co-accused is obviously evidence of a very weak type, and that, even when corroborated, it does not by itself "amount to proof" and, as such, "cannot be made the foundation of a conviction". State Vs. Badsha Khan (1958) 10 DLR 580.

Accomplices Confession of a co-accused under section 30 stands on the same footing as that of an accomplice' under section 133. State Vs. Bad- sha Khan (1958) 10 DLR 580.

-Reporter of a newspaper taking down the speech of person who is guilty of contempt of court is not an accomplice. State Vs. Abdur Rashid (1958) 10 DLR 568.

-In the absence of a corroboration from an in-dependent witness, there can be no conviction in a trap case. Abdur Rashid Vs. State (1962) 14 DLR 272.

-Mere acceptance of a business deal brought about by another person does not make the acceptor an accomplice. Abdul Monsur Ahmed Vs. State (1961) 13 DLR 353: 1960 PLD (Dac) 753.

-Evidence of accomplice or bribe-giver.

It is true that corroboration is not required in every minute detail or particulars of the evidence of an accomplice or bribe-giver, but it is certain that on two broad points such corroboration is absolutely essential, namely, (1) as to the implication of the accused and (2) as to the offence itself. Osimuddin Sarkar Vs. State (1961) 13 DLR 197: 1961 PLD (Dac.) 798.

-Conviction on the evidence of an accomplice-Principles to follow.

Though a conviction founded upon the evidence of an accomplice supported by the confession of a co-accused is justifiable in law under section 133, nevertheless the Courts should be slow to depart from the rule of prudence, which required some indo- pendent evidence implicating the particular accused, Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39.

-The danger of acting upon accomplice's evidence is not merely that the accomplice is on his own admission a man of bad character and who after- wards to save himself betrayed his former associates and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39.

Approver who had given a detailed narrative before the committing Court, when examined in the Session Court, denied all the facts to which he had deposed before the committing Magistrate and said that he knew nothing about the crime.

Held: Apart from the suspicion which always attaches to the evidence of an accomplice, it would plainly be unsafe to rely implicitly on the evidence of a man who had deposed on oath to two different stories, Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39.

-Corroboration of approver's evidence-Rule to follow.

Majority-The rule as regards corroboration of the approver's evidence does not require the prosecution to prove by independent evidence that the pris- oner committed the crime but only to produce such reliable and independent evidence as shows or tends to show that part of the approver's testimony where- in he states that the prisoner was one of the persons who took part in the commission of the crime is true hay Vs Crown (1955) 7 DLR (FC) 37 (43 rt. k.col.)

-If the view was ever taken that corroborative evidence must, apart from the testimony of the accomplice, prove that the accused committed or was connected with the crime, it must be deemed to run counter to the principle governing the corroboration of accomplice's testimony, Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (44 left-h. col.).

Standing by itself corroborative evidence may not be criminating at all and may be susceptible of an entirely innocent explanation but considered with the story of the approver it may produce on the mind of the Court or the jury a profound conviction that the accused must have acted in the manner alleged by the approver. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (44 left-h. col.).

-A piece of cloth worn by the murdered man at the time of his assault was found in the place pointed out by the approver who deposed that it was thrown over there by the accused and beyond this

statement of the approver there was nothing to connect the accused with the cloth.

Held: The fact that the piece of cloth was re- covered from the place pointed out by the approver was of a value as supporting the credibility of the approver's story; but the statement made by the ap- prover that it was the accused who threw the cloth to the place where it was found is of no more, or no less, value than his statement that the accused took an active part in the murder. (1950) 2 DLR (PC) 39.

-An accomplice cannot corroborate himself.

The statement made by an approver under sec- Lion 164 plainly does not amount to the corroboration in material particulars which the Court requires in relation to the evidence of accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition. (1950) 2 DLR (PC) 39

Section 133-An accomplice by accepting a pardon becomes a competent witness and may, as any other witnesses, be examined on oath. As per provision of section 133 of the an accomplice shall be a competent witness, Gias Uddin Al-Mamun vs State, 69 DLR (AD) 322

Section 134-A single testimony if convincing and found to be full complete and self-contained, whether corroborated by other witness or not, is sufficient to bring home the charge and, as such, there will be no illegality in convicting an accused on the basis of such single evidence. Jharu vs State, 69 DLR (AD) 362

Section 134-The weight of the evidence is to be judged objectively with reference to the quality of the evidence on record. Masum vs State, 64 DLR 133

Section 134-The evidence of the RAB personnel does not inspire confidence to maintain the order of conviction and sentence; particularly, when delay was made in lodging the FIR and producing the accused person before the Magistrate. Dolon vs State, 64 DLR 501

Section 134-Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straight forward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. State vs Sujon Deb, 66 DLR 324

Section 134-Section 134 of the Evidence Act is incorporated in connection with the evidence of a single witness upon which the prosecution case can stand; but it should be highly reliable and unshaken as well as credible. A full, complete with full corroboration and self-contained evidence of a single witness by circumstances of the case along with the medical evidence on record can only justify the conviction of the accused of a case and not other than this. Ayub Ali vs State, 67 DLR 567

Section 134-The established jurisprudence is clear that corroboration is not a legal requirement for a finding to be made. "corroboration of evidence is not necessarily required and a Chamber may rely on a single 'witness' testimony as proof of a material fact. 'Sole witness' testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt." Chief Prosecutor vs Abdul Quader Molla 65 DLR (ICT) 1

Section 134 – No particular number of witness is required to prove the charge. Conviction and sentence may be based on evidence of a solitary eye witness. Section 27 –Statement of an accused in police custody leading to the recovery of incriminating material is admissible in evidence. Alibi taken must be established by the accused by producing convincing evidence. Code of Criminal Procedure, 1898

Section 134-Conviction of an accused can safely be based on the solitary evidence of an eye- witness, if evidence is found full, complete and self-contained and further, the testimony of the solitary eye-witness could not be shaken in any manner by the defence in cross-examination. Hazrat Ali vs State (Criminal) 75 DLR (AD) 40

Section—134

It provides that no particular number of witnesses is necessary to prove any fact. The consensus of judicial opinion is that conviction can be based on the solitary evidence of a witness, if not tainted in any way. In the instant case, since the evidence of the only witness seeing the infliction of the fatal dagger blow on the neck of victim Abdun Nabi by condemned prisoner Munshi Miah suffers from infirmities and a number of persons present near about the place of the occurrence that took place in broad daylight do not support the informant in so far as it relates to the infliction of the fatal injury, it is highly unsafe to base conviction on the solitary evidence of the informant. Discrepancy in the medical evidence makes the prosecution case doubtful. The State Vs. Munshi Miah, 15BLD (HCD)139 Ref. 29 DLR (AD) 21i—Cited

Section 134—In order to convict an accused solely on the basis of a solitary witness like the police officer or the person who made the search and seizure, the Judge must ensure that such witness is disinterested and the evidence is unimpeachable and the other witnesses to the search who are alleged to have resiled from their previous stand are unworthy of credit. Talebur Rahman alias Taleb and 2 others vs State 49 DLR 167

Section 134—Even on the basis of a single witness a conviction can be maintained but such a witness must be fully reliable, above reproach and not shaken. Ashok Kumar Saha vs State 46 DLR 229.

Section 134—Law does not require any 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. Al-Amin and 5 others vs State 51 DLR 154

Section 134—It is true that under section 134 of the evidence Act conviction can be based on the Evidence of a single witness but the evidence of that witness must be of unimpeachable character. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466

Section—134

Number of witnesses

Though it provides that no particular number of witnesses is required for the proof of any fact but still then in order to convict an accused solely on the basis of the evidence of police personnels, who made the search and seizure, the Judge must ensure that their evidence is unimpeachable and unshaken in character and the other witnesses to the search and seizure, who are alleged to have resiled from their previous stand, are unworthy of credence. Talebur Rahman alias Taleb Vs. The State, 16BLD(HCD)86 Ref: 8BLD 106; 21 DLR 684; 44 DLR 159—Cited

Section—134

Law does not require any particular number of witnesses to prove a case. 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. One credible witness outweighs the 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. Al Amin Vs. The State, 19BLD (HCD) 307

S. 134- Sole witness' testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt."

The Chief Prosecutor Vs. Abdul Quader Molla (ICT), 65 DLR (2013)-HCD-1.

S. 134-Conviction may be given relying on the evidence of a single witness if such evidence is full, complete, self contained and trustworthy.

State Vs. Matiur Rahman (Criminal), 18 BLC (2013)-HCD-89.

Section-135

When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs’ wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate. Held : Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. Shamsul Alam Ors. Choudhury & Ors. Vs Amirul Rahman 3BLT (HCD)-170

Section- 135

When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate. Held: Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. [Para-7] Shamsul Alam & Ors Vs Amirul Rahman Choudhury & Ors 3 BLT (HCD)-170

Sections—137 and 139

Examination and cross-examination of witnesses—Appreciation of evidence

The proper procedure for appreciation of evidence is to evaluate the evidence of a witness in its entirety and not to bank on a particular portion of it, evidence of a witness in his cross-examination is as good as that of his examination-in-chief, while considering the legal incidence and the essence of the impressions that it creates upon the mind of the Judge. In arriving at the proper conclusions, the Court is also required to take note of the attending circumstances of the case, which at times become a determining factor in judging the guilt or innocence of witness ignoring his cross-examination an vital circumstances surrounding the case, must be held to be no proper finding in the eye of law. Taizal Biswas Vs The State, 20BLD (HCD)322

Section-137 and section 139

By Section 137 and 139 of the Evidence Act an accused person has been given the opportunity to cross-examine a witness produced by the prosecution or to produce his own witness and evidence in support of his defence. Jahangir Alam Vs. The State 15 BLT (HCD) 191

Non-appearance of vital prosecution witnesses after exhausting the process of Court, specifically after deposition, while did not turn up to face cross in the present case, which are not explained by the prosecution side, the trial Court must give a specific opinion in respect of the evidential value of such depositions of the witnesses against the accused who has not got any chance to cross the witnesses. [73 DLR (AD) (2021) 184]

According to section 137 of the Evidence Act, examination-in-chief is followed by cross examination by the adverse party. In a case when a witness specifically makes statement regarding particular facts if the defence did not deny 'such facts', then according to law the deposition deemed to have been admitted. [73 DLR (AD) (2021) 184]

Section 137- When a witness specifically makes statement regarding particular facts if the defence did not deny 'such facts', then according to law the deposition deemed to have been admitted- Non-appearance of vital prosecution witnesses after exhausting the process of Court, specifically after deposition, while did not turn up to face cross in the present case, which are not explained by the prosecution side, the trial Court must give a specific opinion in respect of the evidential value of such depositions of the witnesses against the accused who has not got any chance to cross the witnesses. However, both the Tribunal and the High Court Division have failed to discuss the above legal aspects and consequences.

According to section 137 of the Evidence Act, examination-in-chief is followed by cross-examination by the adverse party. In a case when a witness specifically makes statement regarding particular facts if the defence did not deny 'such facts", then according to law the deposition deemed to have been admitted. In the instant case facts are totally denied. The P.W. Nos.3 and 6 have deposed before the Court against the accused appellant but they have failed to appear before the Court to face the cross instead of exhausting the process of the Court for appearance to face the cross by the adverse party.

Both the Tribunal and the High Court Division are not justified, rather, have failed to corkscrew the actual facts, circumstances and legal inference relying on such shaky and incredible evidence in convicting the appellant Maksudur Rahman Bipblob. Hence, appellant Maksudur Rahman Biplab is acquitted from the charges levelled against him.....Maksudur Rahman Biplab =VS= The State, [10 LM (AD) 397]

Sections 137 and 138-A witness is not entitled to correct his deposition after putting his signature in the deposition sheet and if such a recourse is allowed to be practised by a witness, then the whole purpose of cross examination shall be frustrated and in the process the cross examination shall become a mockery. Sharifullah (Md) Md Tafazzal Hossain, 69 DLR (AD) 61

Section 137-Cross-examination- The cross-examination of those witnesses should be limited only to the matters concerning the alternation or addition of the charges not beyond that. Gias Uddin al- Mamun (Md) vs State, 70 DLR (AD) 123

Section- 138 Examination of witnesses and their cross-examination The right of the adverse party to cross- examine a witness is never confined to the facts deposed to by the witness in his examination-in-chief but it extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant in the suit. Md. Khalilur Rahman Vs. Md. Asgar Ali 7 BLT (HCD)-352

Section- 138

Principle on Re-Examination

It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in re-examination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. [Para-8] Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6 BLT (HCD)-47

Section-138

Examination of witnesses and their cross-examination

The right of the adverse party to cross- examine a witness is never confined to the facts deposed to by the witness in his examination-in-chief but it extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant in the suit. Md. Khalilur Rahman Vs. Md. Asgar Ali 7BLT (HCD)-352

Section-138

Principle on Re-Examination

It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in reexamination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6BLT (HCD)-47

Section—138

Order of examination of witnesses— Examination-in-chief, cross-examination and re-examination Section 138 of the Evidence Act provides the order in which witnesses are to be examined, cross-examined, and, with the permission of the Court, re-examined. After a witness is sworn or affirmed, he is first examined by the party calling him. This is known as examination-in-chief, the object of which is to elicit from the witness all material facts within his knowledge relating to the party’s case. The adverse party has then the right to examine the witness and this is called cross- examination, the object of which is two-fold: to weaken, qualify or destroy the case of the opponent and to establish the party’s own case by impeaching the veracity, accuracy, credibility and the general value of the evidence given in examination-in-chief. This exercise has justly been described by the jurists as one of the principal and most efficacious tests for deciphering the truth. Where there is no ambiguity or there is nothing to explain in the statement of a witness, the prayer for re-examination with the sole object of giving a chance to the witness to undo the effect of cross-examination is not contemplated in law. Ihteshamur Rahman Vs. Most. Masuda Khatun and others, 18 BLD (HCD) 134.

Section 138— Right to cross examination is not confined to the extent of the matters of examination in chief— The right of adverse party to cross examine a witness is not confined only to the matters of his examination in-chief but it extends to all the relevant facts involved in a suit. Khalilur Rahman (Md.) Vs. Md. Asgor Aii. 5 MLR (2000) (HC) 158.

Legal presumption of execution and registration of an old document— Possession is material factor— So long the contrary is not shown, there is the legal presumption that the disputed Kabala deed which is 50 years old, was legally and validly executed and registered. In deciding the genuineness of a very old Kabala deed, the possession of the land of the deed should be considered as very material and cogent factor. Lutful Karim and others Vs. Shahidullah and others. 3, MLR (1998) (AD) 215.

Section 138— Re-examination of witness—When can not be done— Section 138 provides for how witnesses are to be examined, cross-examined and re-examined. After a witness has been examined and cross-examined can be re-examined only for clarification of any ambiguity in his statement. Re-examination of a witness cannot be allowed to destroy the effect of cross-examination. Ihteshamur Rahman Vs. Masuda Khatun and others. 3, MLR (1998) (HC) 172.

S. 139–Credibility of testimony oral and circumstancial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny.

State Vs. Abdul Quiyum (Criminal), 18 BLC (2013)-HCD-556.

Section—145

Admissibility of previous statement — A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his previous admission, if duly proved, is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref. A.I.R. I 946(Lahore) 65(FB); A.I.R. 1957 (Allahabad) I (F.B); A.I.R. 1966(SC) 402—Cited.

Section-145 read with Code of Criminal Procedure, 1898 Section-161 The Statement of an accused person which is not a confession but contains an admission of certain relevant facts is admissible under sections 18-21 of the Evidence Act, provided it is voluntary, even though retracted, if found to be true by the trial Court which is required to be corroborated by evidence of other witnesses in order to be the basis for conviction of the co-accused respondents and as regards statement under section 161 of the Code of Criminal Procedure the same is an statement and is not an evidence in the case and as such not at all admissible in law unless the witnesses are confronted with the said statement while deposing on dock having deposed contrary to the said statement, the same could not be of any avail to the prosecution but the statement could be utilized under section 162 of the Code of Criminal Procedure to contradict the witnesses in the manner provided under section 145 of the Evidence Act. Thus the statement under section 161 of the Code of Criminal Procedure is restricted to an investigation by the police for the purpose of police report. The State Vs. Md. Mominullah (Mohan) 15 BLT (AD) 251

Section—145

Recital in kabala — Question of admissibility — Plaintiff is not an executrix the kabala, she is a mere recipient of it — The recital of kabala per se shall not go into evidence unless the person who has made such recital raises any objection there for. Feroja Khatoon Vs. Brajalal Nath and others; 10 BLD (HCD) 218.

Section 145—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilized under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387.

Sections 145 & 155—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker and others vs State 49 DLR 480.

Sections 145 & 155—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192

Section 145- Discrepant Evidence- Discrepancies in the statement of a witness- On factual side, Mr. Shajahan's greatest emphasis was on what he called discrepancy in testimony.

He tried to have us to accept that those who deposed before the Tribunal, did not say many of those things when they were examined by the I.O. during the investigation stage.

Under our general criminal procedural law, i.e., Cr.P.C. Section 161 provides for the recording of statements from potential witnesses by the I.O's. Although those statements do not form parts of evidence, they do nevertheless have great evidentiary significance in that the defence can under Section 162 Cr.P.C., read with Section 145 of the Evidence Act, 1872, use such statements to prove that as deposition made by a prosecution witness in Court is discrepant with the statement he made to the 1.0. at the investigation stage, they should not be treated with credence.

Although provisions of both Cr.P.C. and Evidence Act have been explicitly excluded by the Act, sanctity of statements made to the I.O. is still of great relevance in that discrepancies in the statement of a witness at different stages on the same fact is bound to dent his credibility. (Paras:748- 751);.....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] Section 145-Contradiction statement made by the witnesses- It is assumed that contradiction of the statements of witnesses can be drawn in the manner provided under section 145 of the Evidence Act, it may best be said that the witnesses omitted to make some statements before the investigating officer as they were not asked properly, and those omissions cannot altogether be treated or termed contradiction within the meaning of sub-rule (ii) of Rule 53 of the Rules of the Evidence. The contradiction can only be drawn from statement made by the witnesses in course of their examination-in- chief. The defence practically has failed to bring any such contradiction which affects the prosecution case as a whole. The appellant failed to show any such vital contradiction. (Para-225); Ali Ahsan Muhammad Mujahid -VS- The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1]

Section 146—Mere relationship of the witness should not be a ground for discarding his evidence unless he is found to be biased and lying. Sarwardy Kamal and others vs State 48 DLR 61.

Sections—154 and 142

Witness—Cross-examination by the party calling it

It provides that the Court may, in its discretion, permit a party to put questions to its witness which are usually put in cross- examination by the adverse party. It may so happen that due to gaining over or unwillingness or faulty memory a witness does not support the case of the party who brings him in the witness box but gives unfavourable evidence, in that case the Court is given the discretion to relax the rule of ‘leading questions’ as defined in section 142 of the Evidence Act and allow the said party to put questions to its own witness as in done by the cross-examination by the adverse party. Md. Babul Vs. The State, 18BLD (HCD) 386 Ref: A.I.R. 1931 Cal 401—Cited

Section 154—Even if there is some discrepancy in the evidence of a witness with regard to some part of the case, for that his entire evidence on the remaining part should not be discarded. Abdus Sukur Mia vs State 48 DLR 228.

Sections 154 & 142—Court may in its discretion permit a party to put questions to its witness which are usually put in cross-examination by the adverse party. Babul vs State 50 DLR 490

Sections 154 & 155—The evidence of a witness is not to be rejected either in whole or in part simply because of being cross-examined by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable, must be taken into account and assessed like any other evidence. Amir Hossain Dhali and others vs State 49 DLR 163

Section-154 Hostile witness The evidences of witness is not to be rejected either in whole or in part simply because of being cross-examination by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable must be taken into account and assessed like any other evidence. Amir Hossain Phali Vs. The State 5 BLT (HCD)-89

Evidence Act (1 of 1872)

Section 154

Hostile witness-When a witness resiles at the trial from his statement made under section 164 he is declared hostile and may be cross examined by the party who produced him as witness.

Evidence Act (I of 1872)

Section 154

Hostile witness-When a prosecution witness is declared hostile, the court under such circumstances, in its discretion may allow the party, who calls him as witness, to put any question in the form of cross-examination. Such discretion is unqualified and is quite apart from any question to the hostility. The value of the evidence of such hostile witness, cross examined by the party calling him, cannot he used for or against either party. Such witness loses all evidentiary value. When a witness has been discredited on one point he may not be given credit on another. [72 DLR (AD) (2020) 47]

S. 154-Where the witnesses declared hostile do not mention the overt act of the accused but place of occurrence can determined on the basis of admission of the alleged occurrence, even if there be no mention of place of occurrence in the sketch map.

The State Vs. Farid Miah & Ors (Criminal), 33 BLD (2013)-HCD-22

S. 154-If the evidence of the P.W.13 and. Rajab Ali fits in which the attending circumstances of the case, then it may be taken into account and accepted along with other evidence on record. In other words, simply because the P.W. 13 Md. Rajab Ali is a hostile witness, his evidence can not be rejected out of hand.

Masumur Rahman @ Masum @ Ahmed Vs. The State (Criminal), 2 LNJ (2013)-HCD-243.

S. 154-Hostile witness-In the instant case we have noticed that besides the witnesses declared as hostile the evidence of their witnesses clearly has made out a case to warrant conviction. Non-consideration of the evidence of the hostile witnesses, in such view of the matter did not, according to us disprove the prosecution case otherwise proved by independent witnesses.

Abdur Rouf Sarder Vs. The State (Criminal), 21 BLT (2013)-AD-95.

Section 155(3)

The provision of section 38 of the Companies Act gives the Court a wide discretion to scrutinize any fraud, error or undue influence or misrepresentation in the matter of transfer of any share and grant relief commensuration with the appropriate possible relief contemplated under the said section. Ahmed Impex ( Private) Ltd & Ors vs Moqbul Ahmed ors. (Mohammad Fazlul Karim J(Civil) 2 ADC 107

Section—155

Impeaching credit of witnesses—When the prosecution made out a case in the Court totally different from the F.I.R. case and the statements of the witnesses recorded under section 161 Cr.P.C. and the witnesses are found to be suppressing material evidence, the prosecution case becomes unworthy of credence. Md. Zakir Hossain alias Jakir Hossain and others Vs. The State, 14BLD(HCD)509

Section 156—The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate 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. One must remain alive to the fact that in a case of rape no self respecting woman especially a college girl would come forward in a court just to make a humiliating statement against her honour and dignity such as involved in the commission of rape upon her. The court must not cling to fossil formula and insist a corroborative testimony, even if, taken as a whole the case spoken to by victims of sex crimes strikes a judicial mind as probable Judicial response to Human Rights cannot be blunted by legal bigotry. Al-Amin and 5 others vs State 51 DLR 154.

Section 157-The statement of a fact by a witness should be made to the competent authority at or near the time when the fact to which the statement relates took place. What should be the span of time of making such statement by a witness is basically a question of fact and no hard and fast rule can be laid down in that regard. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section-157

Section 157 of the Evidence Act provides! that the former statement of a witness to furnish corroboration can be proved only if-it was made "at or about the time," where the fact took place. In order to corroborate the testimony of a witness any former statement made by such witness relating the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved. This section clearly speaks of the intention of the law that when the previous statement is to be use corroboration it must satisfy certain specifies^ conditions that the statement should be ma in relation to a fact which is so fresh in mind of the narrator that he may be assured to be speaking under pressure of collection alone, undiverted by any per motive i.e. the conditions should be such import proper legal sanctions in case should be variations from the truth. The State Vs. Enayet Hossain @ Endu 12 BLT(HCD) 242

Section 164- Confessional statement of an accused has to be recorded in accordance with the provisions of section 364 of Cr.P.C. Abscission of an accused from immediately after the occurrence may be a circumstance pointing at the guilt of the accused. Sentence must be proportionate to the nature and gravity of the offence committed. In order to secure conviction of an accused the prosecution must prove the charge against him by consistent and reliable evidence beyond all reasonable doubt. Evidence of a solitary eye witness can be the basis of conviction. Confessional statement though not binding upon other co-accused may be considered as corroborative evidence against the other co accused and along with other evidence can form the basis of conviction. State Vs. Gaush Mea @ Rana (Md.) and others 11 MLR (2006) (HC) 417.

Appellate Court can take additional evidence

Evidence Act (1 of 1872)

Sections 165

The appellate Court, in an appropriate suit if required, is not only empowered to take additional evidence, which would not amount to filling up lacuna caused due to the negligence/failure of any party to the suit, but also competent to call for necessary documents and persons by invoking the Court's power under section 165 of the Act read with sections 30, 31, 32 and Order 19 of the CPC. Under the constitutional duty of superintendence in addition to being invested with the revisional power by the CPC, this Court notifies that when the learned Judges of the subordinate Courts perform their functions as the trial Court's Judge or the appellate Court's Judge, they should not hesitate to resort to the provisions of section 165 of the Act, sections 30, 31, 32 and Order 19 of the CPC in an appropriate case for the purpose of fair and effective adjudication of a suit. The trial Courts and appellate Courts, under the provisions of laws, possess ample powers to summon and, if the situation warrants, then, to compel the appearance of any person in the Court and to produce the necessary relevant papers to the Court and take their deposition as Court Witness/es. [ 73 DLR 54]

Section-167

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

Section 167— Retrial when can not be ordered—When there are sufficient evidence on record to justify the decision the question of improper admission or rejection of any evidence is immaterial and merely for this no new or fresh trial can. be ordered. Jamaluddin and others Vs. Md. Abdul Majid and others. 3, MLR ( 1998) (AD) 102.

Section- 167

Section 167 of the Evidence Act provides that if there is sufficient evidence to justi1r the decision then improper admission or rejection of the evidence will be no ground for a new trial. [Para- 14] Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6 BLT (AD)-137. EVIDENCE ACT, 1872 Evidence Act [I of 1872]

Case Reference

সার্চ ইন্টারফেসে আপনাকে স্বাগতম

Evidence Act, 1872 [Sections 101-167] Case Reference

Post a Comment

Join the conversation

যাবজ্জীবন কারাদণ্ড বলতে কত বছরের সাজাকে বোঝায় | Life Imprisonment | CrPC | Case Reference

বাটোয়ারা মামলায় বাদীর স্বত্বের ঘোষণার জন্য প্রার্থনা করা কি বাধ্যতামূলক | Partition Suit | Case Reference

Jurisdiction | Case Reference

De Facto Guardian | Case Reference