Penal Code, 1860
Section—201
To sustain a charge U/s 201 of the Penal Code it is essential to prove that an offence has been committed and that the accused knew or had reason to believe that an offence has been committed and with the requisite knowledge and intent to screen the offenders from legal punishment causes the evidence thereof to disappear or gives false information in respect of such offence, knowing or having reason to believe the same to be false. Khandkar Md. Moniruzzaman Vs.The State, 14BLD(HCD)308 Ref: 35 DLR (AD) 127; 18 DLR(SC)289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR238; 45DLR386; 30DLR58; 1984 B.C.R. 231; P.L.D. 1978 Lahore 1285—Cited
Section 201, 409, 467, 468
Important part of the evidence of such
important witness has not been denied nor even there is any cross-examination
on that point. There is nothing on record to disbelieve the evidence of wit-
nesses including aforesaid P.W. I. On perusal of the impugned judgment we find
that the trial court as well as the High Court Division considered the evi- dence
on record and pass the impugned judgment and order. Mahbubur Rahman vs The
State (Amirul Kabir Chowdhury) (Criminal) 3ADC 578
Section 201/34, 302/34
In view of positive evidence that the blood stained lungi was that of accused Zahirul Alam Kamal, according to us, he cannot be absolved of the responsi bility of murder of Chapa. Regarding two other accused respondents however we do not find any such incriminating element to connect them with the mur- der though they, as well, are found responsible for causing disappearance of the evidence. In such view of the matter we feel inclined to give benefit of doubt to the two other respondents Nasiruddin Jamal and Zillul Bari so far as the charge against them under Section 302/34 of the Penal Code is concerned. They however cannot be absolved of the charge under Sections 201/34 of the Penal Code. The State vs Khandker Zillul Bari (Amirul Kabir Chowdhury J)(Criminal)2ADC 525
Disappearance
of Evidence
To
sustain a charge under section 201 of the Penal Code the prosecution must prove
that the accused knew or had reason to believe that an offence has been
committed and with the requisite knowledge and intent to screen the offender
from legal punishment causes the evidence thereof to disappear or intentionally
gives any false information in respect of such offence-Penal Code; S. 201
Khandker
Md. Moniruzzaman Vs. The State, 14BLD(HCD)308
Ref:
35 DLR (AD) 127; 18 DLR (SC) 289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR,
238; 45 DLR 386; 30 DLR 58; 1984 B.C.R.231; P.L.D. 1978 Lahore 1285-Cited
Sections 202— The accused committed an offence punishable under section 202 of the Penal Code for not giving the information about the offence either to the nearest Magistrate or to the police station. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355
Section 279, 337 and 338- It would be harsh to send the appellant to the Jail after 18 years of the occurrence. It appears that appellant was throughout on the bail. The conviction of appellant is affirmed, however, looking to the facts and circumstances of the present case specially the fact that 26 years have elapsed from the incident, we are inclined to substitute the sentence of six months imprisonment under Section 279 and 338 into fine. Six months sentence under Section 279 and 338 IPC are substituted by fine of Rs.1000/- each whereas sentence of fine under Section 337 IPC is maintained. ...Surendran -VS- Sub- Inspector of Police, [10 LM (SC) 21]
Section—295A
Deliberate and malicious acts, either spoken or written, or by visible representation intended to outrage religious feelings of any class of citizens constitute an offence under section 295A of the Penal Code. Dr. Homeo Baba Jahangir Beiman –al-Shuresari Vs. The State, 16BLD(HCD) 140 Ref: 40 DLR 359, 1993 B.L.D. 45; 7 DLR (WP) 17 (F.B); 8 DLR (FC) 110; S.C.C. Vol.IV, 213—Cited
Section—295A
Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs
Section 295A of the Code on its language is applicable to those insults to religious beliefs which in addition to being deliberate and malicious are intended to outrage the religious feelings of the followers of that religion. After going through the publication very carefully and meticulously as to its entirity the High Court Division held that the same has not been written or published with any intention to hit the religious feeling or sentiments of the Muslims, rather, it was written against the narrow interpretation or distorted meaning given or spread out in our country, specially, by less educated and half educated fanatic religious Mollas and Islamic Fotowabaj. Reading of the entire caption and publication establishes that its inner or real meaning is not at all intended to hit the feeling of any Muslim or to distort the meaning of the said Sura of the Holy Quaran. Shamsuddin Ahmed and others Vs The State and another, 20 BLD (HCD) 268 Ref: “Jesus In Heaven on earth” and Working Muslim Mission and Literary Trust, Lahore, and of Civil and Military Gazette, Limited Vs. The Crown, 7DLR(W.P.C. Lahore) 17—relied
Sections 299 & 300— When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention. State, represented by the Solicitor to the Governemnt of the People’s Republic of Bangladesh vs Ashraf Ali and others 46 DLR (AD) 241.
Sections—299 and 300
Mere killing of a person or mere causing of a person’s death is not murder or a culpable homicide but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in section 299 as “culpable homicide” and four classes of cases have been described in section 300 as “murder”. The essential difference between mere “culpable homicide” and “murder” is the degree of probability of causing death. When death is probable, it is culpable homicide but when death is most probable, it is murder. The State Vs. Ashraf Ali and others, 14BLD (AD)127
Sections—300 and 304
Part—I
When it is clear from the evidence that the free fight between the parties took place following an altercation it stands out that death of the victim was caused without any premeditation in a sudden fight in the heat of passion and without the offenders having taken undue advantage or acted in a cruel or unusual manner. This attracts Exception 4 of section 300 of the Penal Code and brings the case U/s 304 part 1. Abul Kalam Azad Vs. The State, 14BLD (HCD) 401 Ref: PLD1950 (Lahore)90; 14BLD (1994) 33; 40DLR443—Cited.
Litigation
Litigation existing between
accused and some of the witnesses is not enough to bear grudge by the accused
so as to commit the offence of murder, rather such litigation sometime can be
taken as a cause for false implication. Malal Miah Vs. The State, 13 BLD (HCD)
277
Sections 300 & 304- A prisoner sentenced to imprisonment for life has no right to claim remissions, inasmuch as, the remissions are available to a prisoner in the nature of privilege. After conviction a prisoner cannot claim any right of remission other than a right of appeal and in the appeal he can claim acquittal or the alteration of the conviction or sentence which is permissible by law. In case of murder if the convict's case covers any of the exceptions enumerated in section 300, his conviction may be converted to part 1 or part II of section 304 or he may be acquitted. Except in those three circumstances, a convict undergoing life sentence cannot claim any other right. ... Ataur Mridha =VS= The State, [3 LM (AD) 513]
Section 300-Since offence of murder punishable under section 302 of the Code was carried to the door of convict- appellants they can be very much convicted for offence of section 302 of the Code and, as such, we convert the offence of section 9(3) of the Ain to offence of section 302 of Code. State vs Bidhan Chandra Roy, 66 DLR 500
Section 300- Clause 4th and 302- Whether a series of acts are so connected together as to form the part of the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formula of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction. The circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. A transaction may be continuous one extending over a long period and two places. The expression "part of the same transaction" must be understood as including both immediate cause and effect of an act or even also its collocation or relevant circumstances. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Sections 302/34- Sentence of death- The appellant is a threat to law and order and a menace to society. He would do away with anyone, who stands for upholding law and order. In view of the way the victim was murdered, we do not find that the sentence of death is at all disproportionate to the crime alleged. We, therefore, do not find any illegality or infirmity in the judgement and order of the High Court Division confirming the sentence of death. Kamal alias Exol Kamal -VS- The State, [4 LM (AD) 369]
Sections 302/35 r/w sections 34 & 304- High Court Division fell in an error in finding the accused guilty under sections 302/35 and it committed further error in awarding imprisonment for life to all the accused. If section 35 attracts, their sentences will be different. The conviction of the appellants is altered to one under section 304, part I read with section 34 of the Penal Code, and thereby he is sentenced to 12 years rigorous imprisonment with a fine of taka fifty thousand each to be paid within three months from date, in default, to suffer rigorous imprisonment for two years more. The fine if realized would be paid to the victim's widow or in her absence to the children. The appeals are dismissed with the above modification of the conviction and sentence...... Khalil Peada -VS- The State, [4 LM (AD) 374]
Section 302/34- It is our opinion that the evidence of the two eye witnesses in respect of complicity of accused Kajal, son of Ansar Ali cannot be relied upon to sustain his conviction, and, accordingly, the appellant is liable to be acquitted. ..... Palash State, [3 LM (AD) 587] VS= The
Section-302/34-
Commute the sentence of death- The appellant Alam Sheikh of Criminal Appeal No.43 of 2012 has been in condemned-cell since 22.02.2005, that is, more than 11 years. The P.C. and P.R. of the appellant Alam Sheikh are nil and as such, he was not a habitual offender. Considering all aspects of the case, we are inclined to commute the sentence of death of imprisonment for life. The State, [3 LM (AD) 595] Salim =VS=
Sections 302/34- The evidence of the prosecution witnesses have been corroborated fully by the own confessional statements of these condemned prisoners which have been found voluntary and true by both the trial court and the appellate court. Shahid Ullah & others =VS= The State. [1 LM (AD) 595]
Sections 302- The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that pre- plan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law......Shahid Ullah & others VS The State, [1 LM (AD) 595]
Section 302/34
In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate. Sohel Dewan =VS= The State & another. [1 LM (AD) 497]
Sections 302/34- Commuted death sentences to imprisonment for life- Druto Bichar Tribunal Case No.22 of 2005 convicting the accused -respondents herein and others under sections 302/34 of the Penal Code and sentencing them there under to death. The High Court Division reason commuted their death sentences to imprisonment for life. The High Court Division has clearly stated the reason of commuting the death sentences to imprisonment for life. The High Court Division has stated to the effect that since the age of the appellants (the convicted respondents herein) were not that much and they had just attained the age of majority they (the learned Judges) found it justified to commute the sentences of death to imprisonment for life. We find no reason to interfere with the above observation and decision of the High Court Division. The State VS Saifullah Al-Mahmood Tanvir & others, [1 LM (AD) 5011
Section 302-Murder Husband obli- gation 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 explana-tion 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
Section 302-Since the accused brought to the notice of the Sessions Judge about the insanity of the accused right from his beginning, the Sessions Judge should have obtained opinion from professional person before giving the decision that the accused was not insane. In any view of the matter, the Sessions Judge should not have proceeded with the case and recorded the evidence of the prosecution witnesses before giving decision on the point of insanity of the accused. State vs Md Sajjad Ali, 67 DLR 161
Section 302-In sentencing process, two important factors come out which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and court responded to the society's cry for Justice. State vs Bidhan Chandra Roy, 66 DLR 500
Section 302-Under section 302 of the Code, though discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice. State vs Bidhan Chandra Roy, 66 DLR 500
Section 302-Before holding the trial news paper publication was made regarding the absconding accused and that news paper publication is lying with the record. After arrest by the police, convict was sent to Jail, wherefrom he filed the Jail Appeal putting his signature in the Vokalat- nama. The signature of convict in his Vokalatnama and the signature put in the admit card are same and identical and, as such, there is no doubt that the admit card belongs to convict. State vs Jabed Jahangir, 66 DLR 579
Section 302-The prosecution miserably failed to prove the case of dowry. So no case was proved under section 11(ka) of the Ain rather it has proved the case of murder under section 302 of the Penal Code. Invoking Article 104 of the Constitution, the sentence should be altered to imprisonment for life under section 302 of the Penal Code instead of death under section 11 (ka) of the Ain, 2000. Anarul @ Anarul Huq vs State, 67 DLR (AD) 172
Section 302-The High Court Division has stressed much on the question of abscondance of the petitioners. This is not a legal ground to award the extreme sentence. Though section 302 provides a death sentence which is a rule, a sentence of death being the forfeiture of life of a person, the court is always alive to see whether there is any extraneous ground to commute the death sentence to life, Court always keep in mind the nature of the offence perpetrated by the accused persons, the motive of the offender in the commis- sion of the murder, the aggravating circum- stances, the enormity of the crime and the mitigating circumstances. In cases where the murder is so cruel or beastly manner or cold blooded planning or gruesome and so on, capital sentence is the proper one and the court is justified in awarding the death sentence. Mohibur Rahman vs State, 69 DLR (AD) 330
Sections 302/109-Though accused- Mobile Quader was not charged under sections 302/109 of the Penal Code, in view of the provisions of section 535 of the Code, we do not find any legal difficulty in finding him guilty under the sections and convicting and sentencing him thereunder as there are abundance of evidence against him to warrant the conviction under the sections. Moreso, we do not see any prejudice to be caused to accused-Mobile Quader for non framing of charges against him under sections 302/ 109 of the Penal Code by the Tribunal as he got all the opportunities to defend him by cross-examining the prosecution witnesses. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6
Sections 302/201/34-If the offences under the Ain, 2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed. Sohel Rana Shippon (Md) vs State, 66 DLR (AD) 160
Sections 302 and 304 Part I-It is an appropriate case where the offence under section 302 of the Penal Code is liable to be turned into an offence under section 304 of the Penal Code and the factual aspects of the case lead us to believe that the sentence of death as awarded by the trial Judge is liable to be commuted to the imprisonment for life under the purview of section 304 Part-I of the Penal Code. State vs Md Sukur Ali, 68 DLR 155
Sections 302 and 362-Crime against humanity-There is no doubt that the trial is without jurisdiction but, by the same time, it cannot be ignored that the act committed by the appellants is barbarous one. Their act shakes the conscience of the people at large. The act of the accused is not only a crime against humanity but also barbaric, (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DER (AD) 111
Sectoin-302/201/34-
Circumstantial evidence It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses. Such circumstances are totally absent in this case, particularly when the story of administering poisons is found to be doubtful...... Haji Mahmud Ali Londoni VS The State, [1 LM (AD) 505]
Sections 302 & 109- In view of the evidence the Appellate Division held that the appellant could not be solely saddled with the "short gun fire injury on the deceased, Abdur Rakib" resulting in his death, particularly when the other accused had also guns and they fired from their guns as well. In view of the matter, the High Court Division took the right decision in affirming the sentence of death awarded to the appellant. Appellate Division is of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine....... Momtaj Ali @Babul VS= The State, [1 LM (AD) 557]
Section 302/34
The prosecution failed to prove the case against the appellants beyond reasonable doubt- The prosecution having totally failed to prove the case against the appellants beyond reasonable doubt the Courts below erred in law in relying upon such unfounded and uncorroborated evidence and also on the testimony of the hostile witnesses as well as upon the other evidence, uncorroborated on material particulars, which are beyond the principle of criminal justice system. As such the decision convicting and sentencing the appellants on such unfounded evidence is not sustainable in law. Hence we find merit in this appeal. The judgment and order of conviction and sentence, passed by the Court of Sessions as well as by the High Court Division against the present appellants, are set aside. The appellants are directed to be released forthwith from custody, if not wanted in connection with any other case. ..... Humayun Kabir -VS- The State, [5 LM (AD) 214]
Sections 302/34/114- 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. The doctor who conducted the post mortem, the High Court Division categorically found that the charge against the condemned prisoner Jharu and Mokim have been proved and accordingly found them guilty for conjointly killing the victim Monowar Hossain at the courtyard of the house of Badal Sarder. After making elaborate discussions on the basis of the fact and law the High Court Division ultimately accepted the death reference against Mokim and Jharu and thereby affirmed the sentence imposed upon them. We are of the view that the condemned prisoner appellants Jharu and Mokim failed to make out a case in their favour by which the judgment and order of conviction and sentence passed by the trial Court and affirmed by the High Court Division can be interfered with. We do not find any merit in this appeal. Hence the jail appeal is dismissed. The State, [5 LM (AD) 233] Jharu =VS=
Sections 302/34- PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel- We find from the impugned judgement that the High Court Division has correctly analysed the evidence and materials on record. Clearly the death-blow was dealt to the prosecution case by the fact that the only eyewitness, namely PW 9 stated to the informant PW 1 that some unknown miscreants committed the offence. The High Court Division correctly observed that at the earliest point of time PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel. We do not find any infirmity in the judgement of the High Court Division with regard to the respondents in Criminal Appeals No.61-62 and 64 of 2015. ... State VS Md Zakir Hossain, [6 LM (AD) 260]
Section 302- On examination of the entire evidence on record, it transpires that no eye witness was examined by the prosecution showing that the convict appellant murdered deceased Chande Ali- Considering the totality of the evidence on record, it is evident that though the prosecution could prove that Chande Ali was murdered but failed to prove that the appellant caused his death. Therefore, the conviction and sentence of the convict-appellant under section 302 of the Penal Code by the trial Court as well as affirmation thereof by the High Court Division was not justified. The judgment and order dated 30.09.2010 passed by the High Court Division in Criminal Jail Appeal No.639 of 2006 dismissing the said appeal and thereby affirming the judgment and order of conviction and sentence dated 11.06.2001 passed by the learned Additional Sessions Judge, Barisal in Sessions Case No.08 of 1995 is hereby set. aside and the convict-appellant is acquitted of the charge under section 302 of the Penal Code. The convict-appellant be set at liberty at once.... Babul alias Fakrul =VS= The State, [6 LM (AD) 181]
Sections 302/149- Common object- In absence of prove of the ingredients of common object, the courts below committed error of law in convicting the appellants and others under sections 302/149 of the Penal Code. To secure conviction with the aid of section 149 of the Penal Code an overt act on the part of a member of unlawful assembly is not necessarily required but participation with common object must be proved to the hilt which is absent in this case. When there is a general allegation against a large number of persons the Court will hesitate to convict all of them on theory of constructive liability on vague evidence. ...Abu Taher =VS=The State, [7 LM (AD) 247]
Sections 302/149- Convict appellants and entitled to get the benefit of doubt- Normally, this Division does not interfere with the concurrent findings of fact of the Courts below in the absence of very special circumstances or gross errors of law committed by the High Court Division. But where circumstances show that the accused persons are entitled to get benefit of doubt it is duty of this court to step in and correct the erroneous decision of the High Court Division. In consideration of the evidence on record as discussed, we are of the view that all the convict appellants are entitled to get the benefit of doubt....Abu Taher =VS= The State, [7 LM (AD) 247]
Section 302/34- Statement of co- accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused- It is the settled principle of law that the statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused, unless there is strong circumstantial and corroborative evidence to justify the statement made by the accused under section 164 of the Code of Criminal Procedure. On perusal of the 164 statement of the accused Tutul and testimony of the P.Ws.2 and 4, we are of the view that the testimony of P.Ws.2 and 4 not only supports the statement made by the accused Tutul under section 164 of the Code of Criminal Procedure but those corroborates the same. It is also proved that confessional statement was voluntary and true and properly recorded by Mr. Narayan Chandra Das, Metropolitan Magistrate, P.W.3, in accordance with law. So, there is no iota of doubt about the abduction and then killing of the deceased, Rony by the accused persons.
We are of the view that the judgment and order of conviction and sentence passed by the trial Court are not tainted or perversed, rather the impugned judgment of the High Court Division in acquitting all the convicts is upon misreading of the testimony which cannot be sustained in the eye of law. From the deposition of P.Ws.2, 3, 4 and 14 it is proved beyond all the reasonable doubt that the accused Tutul and Badal in a pre-planned manner abducted and killed Rony in front of P.W.2 Badsha. Therefore, the judgment and order so far it relates to acquitting the accused Badal and Tutul is liable to be set aside.
The sentence of death is commuted to sentence for life in respect of convict respondents Fazlur Rahman Badal and Monir Hossain Tutul. The respondents Fazlur Rahman Badal and Monir Hossain Tutul respondents in Criminal Appeal Nos.98 and 101 of 2014 are directed to surrender before the Metropolitan Additional Sessions Judge, 1st Court, Dhaka within 2(two) weeks from the date of receipt of this judgment to serve out the rest of the sentence, failing which, the said Court shall take steps to bring them in jail custody in accordance with law. ...State =VS= Fazlur Rahman alias Badal, [7 LM (AD) 269]
Sections 302/34- In many cases a single witness by the simplicity and cleanness of his narrative, by the probability and consistency of the incident he relates, by his agreement to other matters of fact too notorious to stand in need of testimony if situation and character be taken into account, will be enough to stamp conviction on the most reluctant mind. In other in-stances, a number of witnesses, though all were to the same fact, will be found wanting in the balance. If P.W.2 is disbelieved, P.W.6 must be disbelieved straight way on the simple reason that she is not an FIR named witness and she is not corroborated by other persons who have allegedly appeared to the scene with her and that she is not wholly reliable. The judgment of the High Court Division is totally based on conjectures, surmises and hypothetic. There is another aspect which should not be ignored that the defence has examined 9 witnesses. An accused person is a competent witness for the defence and may give evidence on oath in disprove of charges made against him or any other per-sons charged together with him. If an accused is a competent witness, the witnesses examined by the accused carry similar weight. The High Court Division ought to have analyzed their evidence before finding the appellants guilty of the charge. The judgment of the High Court Division is set aside.... Kazem Uddin alias Kazi =VS= The State, [7 LM (AD) 280]
Section 302-
Modification of sentence of death- The death sentence imposed upon youthful offenders, even up to the age of 25 years was commuted to a sentence of transportation for life. We also note from the charge-sheet that the P.C.P.R. (previous conviction and previous record) do not disclose any previous criminal activity of the condemned petitioner which tends to show that his character is not inherently criminal in nature. We keep in mind also the fact that admittedly enmity and grudge had developed between the condemned petitioner and the victim and her family which has triggered the action of the accused.
In the case of Nalu Vs. State reported in I Apex Law Report's (AD) 222, where the facts were similar, with similar mitigating circumstances, this Division commuted the sentence of death to one of imprisonment for life.
The youth the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than 812 years, we are of the view that ends of justice will be sufficiently met if the sentence of death is commuted and altered to one of imprisonment for life. Accordingly, the Jail Petition No.15 of 2010 is dismissed with modification of sentence of death. Rahmat Ali alias Shukkur =VS= The State, [8 LM (AD) 626]
Sections 302, 34 and 120B- The preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family- To materialise the common objective of the killing of Bangabandhu Sheikh Mujibur Rahman with the members of his family the accused appellants participated in their respective assignment covering a greater range of area starting from Cantonment, Parade Ground of Balurghat, New Airport, Mohakhali, area of Manik Mia Avenue, Mirpur Road, Ministers' Residence, Shahbagh Radio Station, Corner of Race Course, Lake Side at Kalabagan, Dhanmondi and finally to House No.677, Road No.32, Dhanmondi, and that provisions of Section 34 of Penal Code contains rule of evidence which does not create a substantive offence and, as such, the said participations of the accused- appellants were made in furtherance of their common intention to do the illegal act of the killing of the then President with members of his family and relations comes within the purview of Section 34. In accordance with the preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family and relations and accordingly I am of the view that the convictions against the accused-appellants under Sections 302, 34 and 120B of the Penal Code do not suffer from any illegality and, as such, the same do not call for any interference by this Apex Court. Since the trial Court and the High Court Division made concurrent findings as to the commission of the offence, there is no scope at this stage to interfere with the concurrent findings of facts as to the involvement of the accused-appellants in the commission of offence and, as such, all the appeals are liable to be dismissed and the Death Reference is liable to be affirmed. (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda (Artillery) =VS= The State (Banga Bandhu Murder Case), [9 LM (AD) 386]
Sections 302/34- Commuting the sentence of death to imprisonment life- All the eye witnesses to the occurrence categorically stated about only one blow given by the appellant, Muzibur Rahman on the head of the deceased and none said about any second attempt by him to cause further injuries or any other overt act and this fact substantiates that the appellant had no intention to cause death of the deceased. Charge sheet shows that PC and PR of the appellant is nil. And he has been languishing in death cell since 04.03.2001, that is, for more than 11(eleven) years. Considering of the case, we are of the view that justice would be best served if the sentence of death awarded to the appellant by the learned Additional Sessions Judge and confirmed by the High Court Division is commuted to imprisonment for life.... Muzibur Rahman =VS= The State, [9 LM (AD) 116]
Sections 302/34- Conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self- contained even it may not have received corroboration from other witnesses consideration of the On facts and circumstances and the law discussed above along with the materials on record we find that the High Court Division was not wrong in holding that the appellant Liton participated in the offence with the common object of killing Asha, the deceased. Thus the submissions as advanced by the learned advocate for the appellant has been meticulously addressed and considered by the High Court Division while delivering the impugned judgment and order and as such the same does not call for any interference.
This Division in several cases held that conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self-contained even it may not have received corroboration from other witnesses but it stands fully corroborated by the circumstances of the case and medical evidence on record. Its fullness and completeness are enough to justify the conviction. This view finds support in the case of Abdul Hai Sikder and another Vs. The state, 43 DLR (AD)95. We do not find any merit in this appeal. Hence this criminal appeal is dismissed.... Liton =VS= The State, [9 LM (AD) 315]
Sections 302/34- Commute the sentence of death of imprisonment for life- We do not find any reason to differ from the views expressed by the trial Court and the High Court Division regarding the conviction of the accused. We respectfully agree that the condemned appellants were rightly convicted under sections 302/34 of the Penal Code.
It has been held in several cases of this Division that long periods spent in the condemned cell would not by itself mean that sentence of death should be commuted. However, we find that the appellants do not have any previous convictions, and it is unlikely that they would be a threat to society. Moreover, in her testimony PW15, Mussammat Monirunnahar, the only direct eyewitness of the occurrence, stated that the three accused persons, namely Nesar, Aksed and Kuran simultaneously assaulted the victim with knives. Seven injuries were found on various parts of the body of the victim. Hence, it is not possible to say specifically which assailant dealt the blow that led to the death of the victim. In such circumstances, we are inclined to commute the sentence of death to one of imprisonment for life.
We are of the view that ends of justice will be sufficiently met if the sentence of death imposed upon the appellants Al Haj Md. Nesar Uddin Gazi and Md. Aksed Ali Gazi is commuted to one of imprisonment for life. In addition, they are to pay a fine of Tk.5000/- each, in default to suffer rigorous imprisonment for 15 days more. Nesar Uddin Gazi(Al Haj Md.) -VS= The State, [10 LM (AD) 377]
Sections 302 and 34
Confessional statement is neither true nor voluntary. Therefore, there is no evidence on record to connect the appellant in the alleged offence We are of the view that this confessional statement is neither true nor voluntary. Therefore, there is no evidence on record to connect the appellant in the alleged offence. Incurable inconsistencies made in the F.I.R., evidence adduced by the prosecution and confessional statement recorded under section 164 of the Code of Criminal Procedure lead to the irresistible conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubt. This criminal appeal is allowed and the appellant is acquitted of the charge levelled against him who has already been released from jail custody by the advance order dated 31.01.2021. ...Shafiqul Islam =VS= The State, [10 LM (AD) 423]
Sections 302/148, 304(Part-1)-
Culpable homicide- The facts and circumstances of this case lead us to believe that the appellant inflicted 'shabol' blow on the head of the deceased with the intention of causing grievous injuries which were likely to cause death, but the 'shabol' blow was inflicted at the spur of the moment in a sudden fight between the parties without any premeditation, as well being provoked by the deceased the appellant lost self-control. Moreover, the act of the appellant falls within the purview of Exception Nos.1 and 4 of Section 300 that is punishable under section 304 Part-1 which provides that the act by which the death is caused is done with intention of causing death or such bodily injury as is likely to cause death. The High Court Division committed an error of law in convicting the appellant under Sections 302/148 of the Penal Code in holding that "the weapon used was sabol. The accused dealt sabol blow on the vital part of the body. All these show that the accused had intention to kill Khorshed." The High Court Division failed to consider that, though the appellant has caused the death with the intention, he did the same in a sudden fight, in the heat of passion being provoked by the victim.
The appeal is dismissed with the modification of the sentence of the appellant. We, therefore, alter the conviction of the appellant from Section 302 to Section 304 Part-I and reduce the sentence to rigorous imprisonment for 10 (ten) years with a fine of Tk.1,000.00 (one thousand), in default to pay the fine, the appellant shall suffer rigorous imprisonment for 15(fifteen) days more. :..Abdus Samad(Md.) VS The State, [10 LM (AD) 436]
Sections 302/34- Modification of sentence of death- It is well settled that the confessional statement can be the sole basis of conviction if it is made voluntarily and it is true. In the instant case, the confessional statement of the appellant is voluntary and true as well as this confessional statement supports the depositions of eye witnesses, PWs 14 and 15.
Decision cited [66 DLR(AD)199] as well as the circumstances of this case, we are of the view that justice would be sufficiently met, if the sentence of death of the appellant Md. Humayun be commuted to one of imprisonment for life. The criminal appeal is dismissed with modification of sentence of death. ... Humayun (Md.) =VS= The State, [10 LM (AD) 446]
Sections 302/34- Respond to the society's cry for justice against the criminal The savage nature of the crime has shocked our judicial conscious; the murder was cold-blooded and brutal without any provocation. There are no extenuating or mitigating circumstances. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". On these facts declining to confirm the death sentence will, in our view, stultify the course of justice. Therefore, there is no justification to commute the death penalty to imprisonment for life. Khorshed(Md.) =VS= The State, [10 LM (AD) 458]
Section 302-
The chain of circumstances was complete and it was the husband who committed the murder of his wife by giving crowbar blow It is the duty of the Court to award appropriate punishment in exercise its discretion. Facts and circumstances of this case show that it was not an attack on account of any provocation or mental derange. The act of bringing out a knife from showcase and abruptly inflicting the same on the person of the victim in the most brutal manner with severe cruelty inflicting number of injuries in a calculated manner on a helpless housewife. The killing of wife in a gruesome and diabolical manner will irrefutably be taken into consideration as aggravating circum-stances. The appellant indulged in grotesque crime of murdering his wife in presence of his daughters in a place which was the most secured place for the victim. Such killing shocks our juridical conscience. The appellant was in a position of trust but he betrayed with all his family members killing his wife who was the mother of his three children. The sentence of death of the appellant as awarded by the Tribunal and upheld by the High Court Division is hereby affirmed. ...Sirajul Islam @ Siraj =VS= The State, [10 LM (AD) 605]
Sections 302/34- The murder was cold-blooded and brutal without any provocation- The savage nature of the crime has shocked our judicial conscious; the murder was cold-blooded and brutal without any provocation. There are no extenuating or mitigating circumstances. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for such heinous crime the most deterrent punishment for wanton and brutal murder is not given, the case of deterrent punishment will lose its relevance. Therefore, there is no justification to commute the death penalty to imprisonment for life....Syed Abdullah Al Masud @ Tipu VS The State, [10 LM (AD) 674]
Section 302/34
Inconsistency in the evidence the order of
conviction under Sections 302/34 of the Penal Code has been illegal. In view of
the facts and circumstances this con- tention cannot be brushed aside altogether.
There is no evidence of any conspiracy or pre
plan or premeditation on the part of the two appellants nor it could be proved
that they inflicted any injuries upon the deceased nevertheless they joined
Aynul Sheikh at the time of occurrence. There is however no evidence that the
appellants intended to cause the death of the victim. From the facts and
circumstances of the case we think that the acts of the two appellants
constitute at best an offence of culpable homicide not amounting to murder punishable
under Section 304, Part I of the Penal Code. We are, therefore, of the view
that ends of justice would be met if the two appellants are convicted there-
under. Aynul Sheikh and another vs. The State represented by the Deputy
Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal) 4ADC 354
Section 302/34- The charge of offence not proved beyond reasonable doubt We find that the trial court as well as the High Court has erred in law in holding that the charge against the two accused stood proved. We are of the opinion that the prosecution has failed to prove the charge of offence punishable under Section 302/34 IPC against the two accused. We further hold that the charge of offence punishable under Section 25 of the Arms Act, 1959 against accused Ajit @Dara Singh is also not proved beyond reasonable doubt. Pawan =VS= State of Haryana, [3 LM (SC) 71]
Section 302 & 392- The charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time- The charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld.......Raj Kumar =VS= State (NCT of Delhi), [3 LM (SC) 74]
Section-302- We direct the Sessions Judge, who is seized of the trial of the respondents' case in question, to ensure that the trial is completed on merits within one year from the date of this order strictly in accordance with law. Depending upon the evidence adduced by the prosecution, the Sessions Judge has ample power to alter/amend/add any charge by taking recourse to powers under Section 216 of the Cr.P.C. notwithstanding the High Court altering the charge at this stage. The appeal fails and is accordingly dismissed. The order granting interim stay is recalled. .....State of Haryana =VS= Rajesh Aggarwal, [5 LM (SC) 99]
Section 302- Death Sentence: Indian Context- Since the eclipse of the British suzerainty in 1947, Indian law and practice on death sentence went through periodic evolution.
While Section 302 of the substantive law, i.e., the Penal Code has remained static in allowing discretion in imposing either death sentence or life imprisonment, the abjective law, i.e., the Code of Criminal Procedure (Cr.P.C.) made all the differences.
Uptil 1955, death sentence was the rule while life imprisonment stood as exception, because the British made Cr.P.C. of 1898, required the Court concerned to assign reason when it opted not to pass death sentence.
During the period between 1955 and April 1974, the amended Cr.P.C. removed the requirement of assigning reason in either case, leaving it to the Court's discretion, and the judicial view was that death sentence remained the Rule while life term, an exception.
In 1973, Indian Parliament resolved to deface the made in UK Cr.P.C. and instead go for a home baked one. Under the new Cr.P.C. (of 1973) regime a Court in passing a death sentence is obliged to assign "special reason" (Section 354(3).
Indian Supreme Court maintains that the implication of the new regime is that life imprisonment is now the rule and death sentence exception (Abraham-v-State of MP, AIR 1976 S.C. 2196).
Indian Parliament, however, found no reason to abolish death penalty, and tacitly lent support to the view, Lord Macaulay's team expressed, when they inserted Section 302 in the draft Penal Code in 1860, which was in following terms;
"First among the punishment provided for offences by this case stands death. No argument that has been brought to our notice has satisfied us that it would be desirable wholly to dispense with this punishment. But we are convinced that it ought to be very sparingly inflicted; and we propose to employ it only in cases where either murder or the highest offence against the state has been committed".
Indian Supreme Court also rejected the contention more than once that death sentence is ultravires the Constitution (in Jagmohan-v-State, AIR 1973 S.C. 947, before 1973 Cr.P.C. and in Bachan Singh- v-State of Punjab, AIR 1980 S.C. 898, Alauddin Miah-v-State of Bihar, AIR 1989 S.C. 1456, Swami Sharddananda (2)-v- State of Karnataka, (2008) 13 S.C.C. 767, (post 1973 Cr.P.c.)
In interpreting Section 354(3) of the new Cr.P.C. Indian Supreme Court ordained in Bachan Singh-v-State of Punjab (1980) 2 S.C.C. 684 that the new Cr.P.C. means that death sentence can only be imposed in "rarest of the rare cases".
Until 01.04.1974 the law as regards sentencing a person found guilty of murder, was no different from ours.
In propounding the "rarest of rare" theory a Constitution Bench of the Indian Supreme Court, rejecting however the plea that the law allowing death sentence was repugnant to constitutional mandate, expressed in Bachan Singh - V-State of Punjab (1980 2 SCC 684) that legislative policy in Section 354(3) of the 1973 Code is that for a person convicted of murder, life imprisonment is the rule and death sentence, an exception, and mitigating circumstances must be given due consideration. The Supreme Court also ordained that a balance between aggravating and mitigating circumstances must be struck.
"Rarest of rare" theory came up for Supreme Court's holistic scrutiny shortly after that Court innovated this principle in Bachan Singh in 1980. It was the hall mark case of Manchi Singh-V-State of Punjab (1983 3 SCC 470). In elaborating this theory the Supreme Court surmoned that for practical application the "rarest of rare" principle must be read and understood in the background of the five categories of murder cases enumerated in it, and thus finally standardised and classified the cases, from which two Constitution Benches, (in Jagmohan and Bachi Singh) resolutely refrained from in the past.
In quick succession Machhi Singh-V-State of Punjab came up before the Indian Supreme Court with an inundation of onerous task of penological dissection on sentencing in murder cases. Unlike Bachan Singh, vires of death sentencing provision was not challenged, it was a normal appeal case.
In Manchi Singh, affirming capital punishment, the Supreme Court put itself in the position of the community and observed that though the community revered and protected life because the very humanistic edifice is constructed on the foundation of reverence for life principle, it may yet withdraw the protection and demand death penalty (page 487-89, para 32-37), keeping, nevertheless, in mind, the "rarest of rare matrix propounded in Bachan Singh. The Apex Court observed,
"32. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the Judicial Power Centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti social or abhorrent nature of the crime, such as, for instance: 1. Manner of commission of murder.
33. When the murder is committed in an extremely brutal, grotesque, diobolical, revolting or dastardly manner so as to arose intense and extreme indignation of the community. For instance,
i) when the house of the victim is set aflame with the end in view to roast him alive in the house,
ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death, iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
11. Motive for commission of murder
34. when the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward, (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-avis whom the murderer is in a dominating position or position of trust, or (c) a murder is committed in the course of betrayal of the motherland.
111. Anti Social or socially abhorrent nature of the crime.
35. (a) when murder of a member of a schedule cast or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of "bride burning" and what are known as "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV) Magnitute of Crime.
36. when the crime is enormouse in proportion. For instance when multiple murders, say all or almost all the members of a family or large number of persons of a particular caste, community or locality are committed. V. Personality of victim of murder;
37. when the victim of murder is (a) an innocent child who could not have, as has not provided even an excuse, much less, a provocation for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons".
It will emerge from the following discussions that the number of "rarest of rare' case have by no means remained in shallow captivity. The list is quite a flared one. (Paras:1010-1022); ... Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]
Section 302- Culpable homicide is not murder If the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without pre- meditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner- The High Court has evidently ignored the evidence, bearing upon the nature of the incident. The death was attributable to the assault by the respondent on the deceased, during the course of the incident. Having regard to the above facts and circumstances of the case, it is evident that the injury which was caused to the deceased was [within the meaning of Section 300 (Fourthly)] of a nature that the person committing the act knew that it was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.
We are affirmatively of the view that the judgment of the High Court is manifestly perverse and is totally contrary to the evidence on the record. The interference of this Court is warranted to obviate a complete failure or miscarriage of justice.
We allow the appeal and while setting aside the judgment of the High Court, restore the conviction of the respondent by the Trial Court under Section 302 of the Penal Code. The respondent is sentenced to suffer imprisonment for life. The respondent shall forthwith surrender to his sentence....State of Rajasthan =VS= Leela Ram @ Leela Dhar, [6 LM (SC) 118]
Section 302/201/34
The High Court Division committed error of
law in upholding the conviction and sentence of the petitioners of the basis of
confessional statement of accused petitioner Zinnah Sheikh but the so-called
confession was exculpatory in nature as the prosecution failed to adduce any
corroborative witness in support of the so-called confessional statement; it is
argued that without corroborative evidence the confession of a co-accused
Exhibit-4 cannot be used against other accuseds and as a result there has
occasioned serious failure of justice. Mazid Sheikh @ Mazid vs The State (Syed
J.R. Mudassir Husain J) (Criminal)3ADC 62
Sections 302/148/149
The accused on dock were examined under Section 342 of the Code of Crim- inal Procedure to which they pleaded not guilty and repeated their innocence. The defence did not however examine any witnesses on their behalf. The State vs. Abdul Kashem Member (Md. Has- san Ameen J) (Civil) 6 ADC 88
Section 302/34
We have already found earlier that the
prosecution has been able to prove the presence of the accused appellants in
the early morning near a 'Pan Boroj' where there is no locality. So, in all
fairness it can be said that the prosecution case has been able to prove the
assembly of the accused appellants for murdering the deceased. There is no
explanation as to why the accused appellants assemble by the side of a village
path way in odd hours of the day. Srwardi Shaikh vs The State (Syed JR Mudassir
Husain J) (Criminal) 3ADC 66
Section 302/34
It appears that the learned Judges having
properly discussed and considered the prosecution witnesses came to the finding
that the petitioner Mostafa inflicted 'Falah' blow on the chest the victim
Habibur Rahman with intention to kill him and the victim Habibur Rahman fell
down on the ground and died on the spot then and there. Mostafa alias Mosto vs
The State (Sved J. R. Mudassir Husain J) (Criminal) 3ADC 179
Sections 302, 201/34
The right question the High Court Division as required to ask itself was whether the circumstances proved in the case were incapable of any other hypothesis than that of the guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt against the accused or not. The State vs Khandker Zillul Bari& Zahirul Alam Kamal (Amirul Kabir Chowdhury J) (Criminal) 3ADC 253
Section 302/34
Failure of the prosecution to prove the
motive as imputed by it will have no impact in the facts and circumstances of
the case. Yogashwar Gope vs The State (Amirul Kabir Chowdhury J) (Criminal)
3ADC 400
Section 302
It is not safe to base conviction on retracted
confession alone without coroboration in material particulars in sup- port of
the guilt of the accused in the instant case and the P.W. I Md. Abdur Rahman
father of deceased Rubel at the time of lodging First Information Report did
not suspect any body in the killing of Rubel and Mantu and P.W.3 Jebunnessa,
who deposed in the Court that she found the appellant fleeing away by crossing
boundary wall of Rubels house did not make such state- ment before Investigation.
Md. Golam Murtuza @ Isphi vs The state (Syed J. R. Mudassir Husain J)
(Criminal) 3ADC 407 Section 302/149
P. O and manner of occurrence in court one
year three months after a complete departure was introduced from the case in
first information report dying declaration and charge sheet the courts below
ought to have disbelieved the prosecution case and acquitted the accused
appellant due to blatant and a total change of P. O and manner of occurrence
which are far flung and irreconcilable and the change is stock lock and barrel.
Farukur Rahman @ Farook (2) vs The State (Syed J.R. Mudassir Husain J)
(Criminal)3ADC 411
Section—302
In a case where two persons have been murdered at dead of night, it is but natural to inform the police first about the occurrence. Non-mentioning of any name in the F.I.R. rings a truth in the F.I.R. Shahjahan Sardar and others Vs. The State 13BLD(AD)58
Section 302/34
...of evidence given by a Hostile with A
witness even if he is declared hostile, the whole of his evidence affect ing
the parties, favorably of unfavorably should be considered and that if the
evidence of the hostile witness fits in with the attending circumstances it may
be accepted and considered along with other evidence. Abdur Rouf Sarder vs The State
(Amirul Kabir Chowdhury J)(Criminal) 3ADC 585
Section 302/34
There is allegation against the accused
respondent who is the principal accused and against others of firing gun shots
and thereby murdering the deceased husband of the informant who was a popular
Ward Commissioner and thus there is allegation of involvement of the accused
respondent in the commission of the said sensational murder of late Ward
Commissioner Shaukat Ali and as the case is still being investigated with
allegation of threat and tempering with the evidence/witnesses his bail should
be cancelled and the ought to remain in custody for securing the ends of
justice. Runu Akhter vs Md. Barkat (Boston) (Mohammad Fazlul Karim J)
(Criminal) 3ADC 668
Section 302/34
Inconsistency in the evidence the order of
conviction under Sections 302/34 of the Penal Code has been illegal. In view of
the facts and circumstances this contention cannot be brushed aside altogether.
There is no evidence of any conspiracy or pre
plan or premeditation on the part of the two appellants nor it could be proved
that they inflicted any injuries upon the deceased nevertheless they joined
Aynul Sheikh at the time of occurrence. There is however no evidence that the
appellants intended to cause the death of the victim. From the facts and
circumstances of the case we think that the acts of the two appellants
constitute at best an offence of culpable homicide not amounting to murder punishable
under Section 304, Part I of the Penal Code. We are, therefore, of the view
that ends of justice would be met if the two appellants are convicted there-
under. Aynul Sheikh and another vs. The State represented by the Deputy
Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal)4ADC 354
Section 302/34
Making the rule absolute thereby allowing
bail to the respondent. The State. represented by the Deputy vs. Kamal Uddin @
Pichchi Kamal (Amirul Kabir Chowdhury J) (Criminal)4ADC 619
Section 302/34
This petition for leave to appeal as well as
Jail Appeal Preferred by condemned prisoner. It appears that the petitioner
raised a plea of alibi but failed to substantiate his claim by landing
evidence. It further appears that there is no denial to the fact that the
deceased were living in the house of the accused-petitioner (P.O. house) on the
date and he (accused-petitioner) ever took any attempt to save the life of the
deceased. Paritosh Rudra vs. The State (Md. Hassan Ameen 1) (Criminal) 4ADC 702
Section 302/34
Confessional statements were duly recorded in
due compliance with the provisions embodied in section 164 Cr. P.C. and does
not at all demonstrate that those are not inculpatory and so the Court can rely
upon those confessional statements. Md. Foridur Rahman@ Forid @ Reza vs. The
State (Md. Tafazzul Islam J) (Criminal)4ADC 715
Section 302
During pendency of the appeal the petitioners
moved the High Court Division for bail and the High Court Division by the
judgment and order dated 23 August 2005 allowed the prayer for bail. Md. Maimul
Islam Md. Mainul Islam Moinud alias Suja vs. The State (Amirul Kabir Chowdhury
J) (Criminal) 4ADC 803
Section 302/324/326/448/34
It appears that the High Court Division as well as this Court elaborately considered the points raised now by the learned Counsel and accordingly decided the case. A review is never meant to rehear a matter which has been heard and decided finally. Yogashwar Gope vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 982
Section 302/34
Dismissing the appeal and consequent
thereupon affirmed the judgment and order dated 09-07-1990 passed by the
Session Judge. If at the time of trial, the offender not below the age of 16
years at the time framing charge for trial can be held together with adult and
no separate trial is necessary. Mona alias Zillur Rahman vs The State (Abu
Sayeed Ahammed 1) (Criminal) 3ADC 505
Recovery
In absence of any evidence
of dacoity by any of the witness and in absence of any recovery of any article
taken away during the dacoity from the possession of any of the accused person
it can be safely said that the prosecution has hopelessly failed to prove the
case of dacoity and therefore the charge under section 396 of the Penal Code
must fail on the ground of absence of evidence to prove any of the ingredient
of section 391 of the Penal Code. The State Vs Md. Abdul Ali and others, 20BLD
(HCD) 327
Non-recovery of the
deadbody
Even in a case of
non-recovery of the deadbody of a victim a conviction can be se- cured for an
offence of murder under section 302 of the Penal Code if there be legal and
sufficient evidence on record to prove the commission of murder by the accused.
In the face of clear evidence of eye-witnesses proving murder of the victim by
the accused by inflicting assaults on his person and the sub- sequent removal
of the deadbody by the ac- cused persons for the purpose of causing disappearance
thereof, conviction of the appel- lant under sections 302/34 of the Penal Code
is justified. There is no warrant of law altering the charge from section 302
to section 364 of the Penal Code merely because the dead body was not
recovered. Shaha and others Vs The State 17BLD(AD)241
Section 302/34
As per provisions of section 133 and illustration (b) of section 114 of the Evidence Act the evidence of an accomplice is unworthy of credit, unless he is corroborated in material particulars because an accomplice who betrays his associates is not a fair witness. Faruque @Jamai Faruque & L.M. Liakat Ali Laskar vs The State (M. M. Ruhul Amin J)(Criminal)2ADC 165
In case where allegation had been made that a husband had murdered his wife, whether the husband had a duty to explain how and by whom she was murdered—the Public Prosecutor, whether is supposed to know the law and has a responsibility to work with devotion. In case where the allegations had been that a husband had murdered his wife and then absconded, the husband in such a situation had a duty to explain how his wife was murdered and by whom she was murdered and in case of non-explanation by the husband or his silence in the matter or he having absconded immediately after the murder, would be considered to be a good ground for a finding that the husband is guilty of murder of his wife if, however, there is no suggestion or circumstances to show to the contrary that other inmates of the house also used to beat her and killing her in the process. (ii) The Public Prosecutor is supposed to know the law and has a responsibility to work with devotion keeping in mind that he is representing not a party but the people in the administration of criminal justice. The State Vs. Nurul Huq 13BLD (HCD)99 Ref: 172 I.C.374; 39C.L.J 123; AIR 1977 (SC)1116; 126 I.C.689; 62 I.C. 545; P.L.D. 1964 (SC)813; 31DLR 312; 16 D.L.R (Dacca) 598; A.I.R 1973(SC)2474—Cited
Right of an accused to be
defended by a lawyer
It provides that every
person accused of an offence before a criminal Court has a right to be defended
by a lawyer. When the offence is punishable with death, he is entitled to be
defended at the expense of the State. Nurun Nahar Zaman Vs. The State and
another, 15 BLD(HCD) 537
Right of an accused to be
defended Before the trial proceeds against an undefended accused charged with
an offence which provides capital punishment, it is necessary that State
defence be arranged for him. It is all the more necessary when he is tried in
absentia. Gopal Chandra Chakraborty Vs. The State, 15BLD(HCD) 224
Ref: 27DLR(AD) 1; 46 DLR
175-Cited
Section—302
Circumstantial evidence—Chain of circumstances wanting—presumption that deceased was last found in the company of accused—whether the accused is the killer of the deceased. The circumstantial evidence found against the accused is incapable of explanation on any reasonable theory except that of the guilt of the accused his persons. Accused presumed to be innocent of the charge till guilt is established by legal evidence. Principle to be followed in criminal case based on circumstantial evidence. It is the fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that the accused and accused only was the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused. Last seen theory—in the absence of any eye-witness to the murder and in the absence of any positive evidence that appellant Malai was found, following deceased Siddique Ali with sharp cutting weapons in hand and in the absence of any overt act on the part of the deceased it cannot be said with reasonable certainty that appellant Malai was responsible for the murder of deceased Siddique Ali Litigation—litigation existing between the accused and some of the witnesses is not enough to bear grudge by the accused so as to commit the offence of murder, rather such litigation sometime can be taken as a cause for false implication. Malai Miah Vs. The State (1993) 13BLD (HCD) 277
Section—302
When admittedly a wife sleeps at night with the husband in a room or hut not approachable by others, whether the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record? When admittedly a wife sleeps at night with the husband in a room or hut which is not approachable by others and there is no probable circumstance explaining the cause of death of the wife and she is found to have been killed by in a brutal manner by strangulation, the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record against him. Abdul Hamid @ Sofaruddin Vs. The State, 13BLD(HCD)563 Ref: 38DLR235; 40 DLR (AD) 139—Cited
Section—302
Motive
When there is sufficient direct evidence to prove an offence, motive is immaterial and has no importance. While trying a case under section 302 of the Penal Code or hearing an appeal involving section 302, the Court must not consider first the motive of the murder, because motive is a matter of speculation and it rests in the mind and special knowledge of the accused persons. Motive is not a necessary ingredient of an offence under section 302 of the Penal Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, specially when the case is based on circumstantial evidence. [Per Mustafa Kamal, J] The State Vs Giasuddin and others, 18 BLD(AD)254
Section—302 Plea of alibi In a wife killing case it is always presumed that the husband was with the deceased-wife at the time of occurrence, unless any alibi is set up by the defence. In that case the burden of proving such plea rests on the husband in order to absolve him of any criminal liability. Abdus Salam Vs The State, 19BLD (HCD)98
Section—302
Since the sentence prescribed under section 302 of the Penal Code is death or imprisonment for life, the Court before recording a conviction must be satisfied beyond reasonable doubts about the guilt of the accused persons on careful scrutiny of the evidence on record. A conviction even on grave suspicion and high probability is not tenable in law. Md. Jiaur Rahman Vs. The State, 15BLD (HCD)459
Section 302/34, 304
There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part 1 of the Penal Code. Aynul Sheikh & Jaber Sheikh vs The State (Amirul Kabir Chowdhury J) (Criminal) 2ADC 863
Section 302/109
Under section 134 of the Evidence Act believing of only eye-witness is legally permissible and conviction can be based on the sole evidence of only one eye- witness if found to be trustworthy. Md. Yousuf Bepari vs The State (M.M. Ruhul Amin J)(Criminal) 2ADC 871
Section—302
Sentence
Sentence is a complex matter which needs special considerations in the context of proved facts. In the instant case the broad facts that stare at the face are that there were hot altercations and exchange of hot words between the parties immediately preceding the occurrence and there was grappling by Salam and 2 others on one side and victim Jalal on the other and in the course of such quarrel and on the hit of passion condemned prisoner Abdul Aziz Mina inflected dagger blows on the victim. Under such circumstances, it is to be found that the condemned prisoner had no premeditation for killing victim Jalal and he acted on the heat of passion. The sentence of death is therefore commuted to a sentence of imprisonment for life. The State Vs Abdul Aziz Mina, 16BLD(HCD)183
Sections—302/109
In view of the fact that the condemned prisoner did not inflict any injury on victim Hazera, although he was a silent spectator to the cruel and gruesome murder of his wife by his companions, who were acquitted for want of legal evidence, it is reasonable to hold that he could not be convicted under section 302 of the Penal Code but should be found guilty for abetment under sections 302/109 of the Penal Code. Abdul Awal Vs. The State, 14BLD(AD)224
Sections—302134 Evidence Act, 1872(1 of 1872) Section—3 There is complete chain of circumstances that the appellants assaulted deceased victim Biswajit severely and dealt fatal blow causing his death when appellant Guizar participated in the occurrence most actively and he was found by PW4 for the last time with the deceased victim when Gulzar was chasing by the eastern side of the khal and the circumstances of the case taken cumulatively are forming a claim so complete that there is no escaped from the conclusion that the murder of victim Biswajit was committed by the appellant Gulzar and his associates and none else. Guizar Biswas and others Vs The State,20BLD(HCD)550
Sections—302/34
The wife of the deceased deposed in Court that she had recognised the assailants of her husband and accused Akkel Ali gave channy blow, Delwar gave dao blow, accused Omar Ali gave Lathi blow and accused Quasem gave rifle blow on her husband who succumbed to the injuries on 15.6.1989 in the hospital which is corroborated by PWs. 1,2, 3, 4, 6 and 8 and the dying declaration and there is nothing to disbelieve the credibility of their evidences and hence the prosecution proved the case beyond all reasonable doubt and therefore the conviction and sentences under section 302/34 of the Penal Code against the condemned convict is sustainable. The State Vs Akkel Ali and ors, 20BLD (HCD)484
Sections—302/34 and 201/34
Non-recovery of the deadbody
Even in a case of non-recovery of the deadbody of a victim a conviction can be secured for an offence of murder under section 302 of the Penal Code if there be legal and sufficient evidence on record to prove the commission of murder by the accused. In the face of clear evidence of eye-witnesses proving murder of the victim by the accused by inflicting assaults on his person and the subsequent removal of the deadbody by the accused persons for the purpose of causing disappearance thereof, Conviction of the appellant under sections 302/34 of the Penal Code is justified. There is no warrant of law altering the charge from section 302 to section 364 of the Penal Code merely because the dead body was not recovered. Shaha and others Vs The State 17BLD (AD)241
Sections—302 and 302/149
A conviction under section 302 of the Penal Code and a conviction under sections 302/149 of the Penal Code are different kinds of conviction as section 302 of the Penal Code involves direct and personal liability of the accused whereas sections 302/149 of the Penal Code involve a vicarious liability. The trial Court convicted the accused-appellant under sections 302/149 of the Penal Code and as such the High Court Division was wrong in affirming the order of conviction and sentence under section 302 of the Penal Code. Altaf Hossain Vs The State, 18BLD (AD)231
Sections—302, 304 and 326
The line of demarcation between culpable homicide and grievous hurt is rather thin. In the former case injury must be such as is likely to cause death whereas in the latter case that is likely to endanger life. Offence of culpable homicide pre-supposes an intention or knowledge of likelihood of causing death. In the absence of such intention or knowledge the offence committed may be a grievous hurt notwithstanding death being caused. Humayun Matubbar Vs The State, 18 BLD (HCD) 492
Section 300— When the victim went to bed with her husband and was found subsequently dead there, he bears a serious obligation to account for her death. Abdus Sukur Mia vs State 48 DLR 228.
Section 300— When all that the accused intended was to strike his wife and the strike by mistake hit their newly born baby which had led to the killing, such of the accused falls within the purview of exception I of section 300. State vs Abdul Howlader 48 DLR 257.
Sections 300 & 302— As there is a possibility that before the occurrence there might have been some sort of altercation between the accused and the deceased or loss of temper by the accused, it cannot be held that it was a premeditated murder. State vs Abdul Khaleque 46 DLR 353.
Sections 300 & 396— The word murder appearing in section 396 of the Penal Code and the word murder appearing in section 300 of the” Penal Code is not the same thing. In section 396 the liability of commission of murder is conjoint while commission of murder as defined under section 300 is absolutely an individual liability. Arzan @ Iman Ali vs State 48 DLR 287.
Section 302— Motive is not a necessary ingredient of an offence under section 302 of the Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, especially when the case is based on circumstantial evidence. State, represented by the Solicitor, Government of the People’s Republic of Bangladesh vs Giasuddin and others 51 DLR (AD) 103
Sections 302 & 302/149— The High Court Division affirmed the order of conviction and sentence as passed by the trial Court forgetting altogether that the conviction of the appellant was recorded by the trial Court under section 302/149 of the Penal Code which is a completely different kind of conviction from one under section 302 directly where the liability is personal and in the former case the liability is vicarious. Altaf Hossain vs State 50 DLR (AD) 120.
Section 300
Explanation 4— Accused Abdul Aziz Mina has acted in a cruel and unusual manner and also took undue advantage in inflicting 4 knife blows on the person of victim Jalal which ultimately caused his death. Therefore, the offence as committed by accused Abdul Aziz Mina does not in any way attract the provision of Exception 4 of section 300 but attracts the provision of section 300 that it is a voluntary infliction of knife blows with the intention of causing death and as such accused Abdul Aziz Mina cannot escape the liability of causing homicide amounting to murder. Abdul Aziz Mina and others vs State 48 DLR 382.
Sections 302/34— Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life. Appellate Division in some cases opined /mat a convict may be enlarged on bail if there is no chance of disposal of the appeal within the period of his sentence. A convict who is sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division. Bail granted to appellant-opposite-party Abdul Momin Sarder on 11-1-96 is cancelled and he is directed to surrender to his bail bond forthwith. State vs Abdul Momin Sardar 50 DLR 588.
Sections 302/149— Without a proper finding that the accused had a common object conviction with the aid of section 149 of the Penal Code is illegal. State vs Raisuddin and others 48 DLR 517.
Sections 302/34— Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life. State vs Abdul Momin Sardar 50 DLR 588
In view of the allegations and the evidence
on record, we are of the view that these accused appellants could not be guilty
on evidence under section 302/149 of the Penal Code for being a number of
unlawful assembly having the common object of committing murder of the
victims.......Accordingly, the accused appellants in Criminal Appeal No.38 of
2003 are convicted under section 148 of the Penal Code. Abdul Aziz &
Monowar Hossain vs The State (Mohammad Fazlul Karim J)(Criminal) 2ADC 882
Section 302/34
In the instant case we have considered the
surrounding circumstances, including the place, time of the alleged occurrence
and kind of witnesses produced to support evidence of P.W.2 and we are in
agreement with the High Court Division that under the circumstances the testimony
of P.W.2 is not sufficient to maintain conviction and more so her evidence
also, in the facts and circum- stances, could not be relied upon to be
true.........(6). The State vs Muktu Mia and ors (Amirul Kabir Chowdhury J) (Criminal)
2ADC 1002
Section 304(Part-1), 307 & 323- Dispute between the parties regarding land-The trial Court went on to state that, after going through the entire evidence, the incident itself was doubtful, and also commented on the fact that there was some semi-digested food in the stomach of the deceased. The medical evidence shows that it was 2 to 3 hours in the stomach before the deceased was fired upon, and this showed that the incident could not have taken place at 6.00 a.m. at all, the trial Court acquitted all the three accused before it. In an appeal filed by the State, the High Court convicted the accused No.3, the SLP petitioner before us under Section 304 Part-I of the Indian Penal Code for the death of Umesh Shukla; Section 307 for the unsuccessful murder attempt on Savitri Devi PW-3, who is the appellant before us under Section 323 and sentenced the accused to 10 years rigorous imprisonment under Section 304 Part-I, three years rigorous imprisonment under Section 307 and six months rigorous imprisonment under Section 323 together with fine. The other two accused, with whom we are not concerned, were sentenced under Section 323 of the Indian Penal Code for six months. The appellant in Criminal Appeal No. 1159 of 2007 is on bail. His bail bonds shall stand cancelled. The appellant shall be taken into custody forthwith to serve out the remaining sentence. Hari Shankar Shukla =VS= State of Uttar Pradesh, [3 LM (SC) 61]
Section 304B r/w 34- No common intention Both the courts below have erred in law in holding that the charge under Section 304B read with Section 34 IPC stood proved as against the present appellants. In our opinion, in view of the evidence discussed above, it cannot be said that it is proved beyond reasonable doubt that the present appellants, who are sister-in-law and brother-in-law of the deceased, tortured the victim for any demand of dowry. In our opinion, in the present case which is based on circumstantial evidence it cannot be said that appellants had any common intention with the husband of the deceased in commission of the crime. It is sufficiently shown on the record that they used to live in a different village. Therefore, we are inclined to allow the present appeal. Bibi Parwana Khatoon =VS= State of Bihar, [3 LM (SC) 55]
Sections 302 & 304— By inclusion of the offence of the above ordinance in the schedule to the Special Powers Act the jurisdiction of the Sessions Court has been ousted. Now, as the death is proved but not for demand of dowry, the present case is sent back to the Sessions Court for trial. Firoz Miah vs State 51 DLR 37
Sections 302 & 304 Part II— The accused persons might have given the deceased a serious beating to effect divorce of his second wife and this resulted in his death. The offence committed by them does not attract sections 302/109, it attracts provision of section 304 Part II of the Penal Code. Shahajahan Talukder @ Manik and others vs State 47 DLR 198.
Sections 302/34— Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life. State vs Abdul Momin Sardar 50 DLR 588.
Sections 302 & 326— The injury inflicted did not cause instant death. The victim was alive for about 11/2 months at the hospital. This shows the injury inflicted was not likely to cause death, but it endangered the life and ultimately resulted in death. The appellant therefore is guilty under section 326 of the Penal Code. Humayun Matubbar vs State 51 DLR 433
Section 302/120B – Murder committed in consequence of conspiracy Charge of murder has to be proved by the evidence, facts and circumstances of the case. Guilt of the accused cannot be proved by his character. Circumstance must be of such nature that it leads to the irresistible conclusion as to the guilt of the accused and must be incompatible with the innocence of the accused. The conspiracy alleged must not be remote so to have no nexus with the commission of the murder. Further the witness to such conspiracy must be natural and must be worthy of credence and inspire confidence of the court. State and another Vs. Shahidur Rahman @ Shahid and another 14 MLR (2009) (AD) 358.
Penal Code, 1860
Section 302/34 – Charge of murder proved by circumstantial and other corroborative evidence including confessional statement Sentence of death is held to be appropriate. The charge of cold blooded murder of her daughter with the participation of the co-convict in a gruesome manner appears to have been proved beyond doubt by strong circumstantial evidence and confessional statement of the condemned prisoner corroborated by other independent evidence and there being no mitigating factor the High Court Division having been in complete agreement with the trial court confirmed the death sentence under section 374 of the Code of Criminal Procedure. The State Vs. Rokeya Begum and another 11 MLR (2006) (HC) 63.
Penal Code, 1860
Section 302/34 – Participation of all the accuseds in furtherance of their common intention to commit murder is essential to attract section 34. Conviction and sentence can well be based on the evidence of a solitary eyewitness and extra-judicial dying declaration. Section 34 of the Penal Code, 1860 is attracted when the accused in furtherance of their common intention participated in the commission of the murder. Conviction and sentence based on the evidence of a solitary eye witness and the extra-judicial dying declaration are held by the apex court perfectly justified. Enamul Huq and another Vs. The State 11 MLR (2006) (AD) 422.
Penal Code, 1860
Section 302 – Liability of husband in wife killing case
Commutation of sentence of death into life imprisonment in the absence of any extenuating circumstances is held by the apex court not appropriate. Law has by now been well settled that the husband while they were living in the same house at the time of occurrence has liability to explain as to how his wife was killed. When the husband fails to offer any satisfactory explanation presumption raises as to the guilt of the husband and the plea of his innocence falls to the ground. Abu Sayed (Saked) Vs. The State 12 MLR (2007) (AD) 101.
Penal Code, 1860
Section 302/34 – Sentence of death is commuted to life imprisonment in view of absence of special brutality in committing the murder. Though the charge under section 302/34 of the Penal Code was found established beyond all reasonable doubt by the prosecution, the High Court Division in the Death Reference commuted the sentence of death into imprisonment for life in view of the death of the deceased being committed without special brutality. The apex court held the decision of the High Court Division perfectly justified. State Vs. Joinal Fakir and another 13 MLR (2008) (AD) 62.
Penal Code, 1860
Section 302 and 304 – Several injuries inflicted even though not on the vital part of the body of the deceased which are likely to cause death and when in consequence thereof the death actually occurred, certainly constitute affiance punishable under section 302 of the Penal Code and not under section 304. Syed Nurul Azim Babar Vs. The State 14 MLR (2009) (AD) 364.
Penal Code, 1860
Section 302/34 – Acquittal of accused in a murder case on ground of benefit of doubt based on hypothesis not supported by materials on record has been strongly disapproved by the apex court – The inmates of the house in whose presence the deceased was murdered at dead of night are the natural witnesses whose evidence cannot be discarded by reason of their relationship with the deceased. Though corroboration by independent witness in a case where enmity exists between the witness and the accused is a rule of prudence but it is not inflexible rule. When time of occurrence is specifically mentioned by the prosecution in the F.I.R non-mention of the age of the injury of the deceased in the post mortem examination report is immaterial. State Vs. Abdul Kader alias Kada and others 13 MLR (2008) (AD) 86.
Penal Code, 1860
Section 302 – When charge is established beyond all reasonable doubt with reliable evidence conviction and sentence awarded thereon can well be sustained. Allegation of enmity does not always diminish the evidentiary value of ocular evidence. Again absence of blood in the place of occurence by itself does not render ground to disbelieve the prosecution case. Motive when attributed but not proved is not also always fatal to the prosecution case. Yogashwar Gape Vs. The State 11 MLR (2006) (AD) 226.
Code, 1860
Section 302 – Liability of husband in a case of murder of his wife when he was not in the house of occurrence at the relevant time.
Evidence Act, 1872
Section 106 – Liability of the husband to explain how his wife met her death. In this jail appeal the condemned prisoner, from the evidence on record, is found by the Appellate Division, was not in the P.O. house at or about the time of occurrence and as such he cannot be held liable under section 106 of the Evidence Act to explain as to how his wife and three years old daughter met their tragic death. In that view of the matter the apex court held that the prosecution could not prove the charge beyond all reasonable doubt and allowed the appeal. Mokter Hossain Khan (Md.) Vs. The State 13 MLR (2008) (AD) 186.
Penal Code, 1860
Section 302/ 333 I 224/34 – Charge has to be proved by consistent and reliable evidences.
Evidence Act, 1872
Section 114 (g) – Withholding material witness/ evidence raises adverse presumption against prosecution case
The trial court convicted accused and awarded death penalty. The High Court arterial evidence which created doubt as to the time, place and manner of occurrence and came to the finding that the deceased might have received injuries elsewhere and accordingly rejected the Death reference and acquitted the accused which the Appellate Division found appropriate and dismissed the appeal preferred by the state. State Vs. Md. Mukul alias Swapan 13 MLR (2008) (AD) 246.
Penal Code, 1860
Section 302 – Husband liability to explain the circumstances under which his wife was done to death. Law is well settled that the husband is under the obligation to explain as to how his wife met her death when both of them were residing in the same house at the relevant time. In the instant case the husband convict-appellant having failed to offer any satisfactory explanation was sentenced to death by the trial court which the High Court Division in the facts and circumstances commuted into imprisonment for life. The Appellate Division upheld the sentence since commuted as perfectly justified. Abul Hossain Vs. The State 14 MLR (2009) (AD) 30.
Section, 302/34
High Court Division without dis- cussing the evidence on record as required under law in a very slip shod manner set aside the order of conviction and sentence on certain untenable and flimsy grounds. The State vs. Nantu Biswas (Md. Abdul Matin J) (Criminal) 6 ADC 897
Sections 302/34
The High Court Division without dis- cussing the evidence on record as re- quired under law in a very slip shod manner set aside the order of convic- tion and sentence on certain untenable and flimsy grounds. The State vs. Nantu Biswas and others (Md. Abdul Matin J) (Criminal) 6 ADC 254
Penal Code, 1860
Section 302- In case of murder with extreme brutality death is the proper sentence
Where there is mitigating circumstance the alternative sentence of imprisonment for life is the appropriate sentence. Sentence must be proportionate to the nature and gravity of the offence. State Vs. Anjuara Khatun 12 MLR (2007) (HC) 214.
Penal Code, 1860
Section 302/34 – Sentence for the offence of murder is either death or imprisonment for life When the charge of murder under section 302 read with section 34 of the Penal Code is proved beyond doubt, the trial court shall have to award upon conviction of the accused the sentence of either death or the sentence of imprisonment for life in cases where there is certain extenuating circumstances. The learned judges of the High Court Division took serious view about the poor knowledge of the Additional Sessions Judge who awarded sentence of 7 years rigorous imprisonment to eight accused under section 302/34 of the Penal Code. Rasheduzzaman @ Nayon and eight others Vs. The State 12 MLR (2007) (HC) 128.
Penal Code, 1860
Section 302 – Conviction and sentence not based on any legal evidence are not sustainable Convicting the appellant on the basis of evidence of court witnesses and acquitting the other 41 accused including those against whom there are sufficient convincing evidence of ocular witness by the cryptic and unintelligible judgment are viewed by the learned judges of the High Court Division with strong disapproval who also expressed their surprise at the failure of the state functionaries in not preferring appeal against the acquittal in such a case of double murder committed in broad day light. Kala Mia Vs. The State 12 MLR (2007) (HC) 232.
Penal Code, 1860
Section 302/34- Charge of murder committed in furtherance of common intention. Evidence of witnesses related to each other who appear to be natural and reliable cannot be discarded only on the ground of their relationship. In the instant case the vital witnesses though related to each other consistently proved the charge and as such the learned judges of the High Court Division having found nothing to interfere with the conviction and sentence dismissed the appeal with certain modification as to appropriate section of law and entitlement of the benefit under section 35A Cr.P.C. Abu Sayed Gain alias Sáyed Ahméd Gain and another Vs. The State 14 MLR (2009) (HC) 237.
Penal Code, 1860
Sections 302 and 304 – Culpable homicide when committed without the intention to cause death or in a state of provocation and loss of self-control falls under section 304 of the Penal Code
In the instant case it is clearly established that the accused appellant caused the injury on the head of the deceased in the midst of quarrel and in a state of loss of self-control. The victim died in the next day of the occurrence. The offence in the facts and circumstances falls within the ambit of section 304 and not under section 302. The learned judges of the High Court Division having regard to the position of law upheld the conviction but altered the sentence of imprisonment for life into 10 years RI under section 304 of the Penal Code. Aynul Huq Vs. The State 14 MLR (2009) (HC) 278.
Penal Code, 1860
Section 302/201- Husband liability in a wife killing case when both of them were living in the same house at the time of occurrence
In the instant case the plea taken by the husband as to the wife committing suicide having failed and the charge of murder established beyond all reasonable doubt pointing unerringly at the guilt of the husband the conviction and sentence as modified by the High Court Division are affirmed by the apex court. Azam Reza Vs. The State 15 MLR (2010) (AD) 219.
Culpable
homicide
Mere
killing of a person or mere causing a person's death is not murder, culpable
homicide or even any criminal offence but it is so when caused with certain
guilty knowledge. The essential difference between mere "culpable
homicide" and "culpable homicide amounting to murder" is the
degree of probability of causing death. When death is prob- able, it is
culpable homicide but when death is most probable, it is murder. Penal Code,
Ss. 299 & 300 The State Vs. Ashraf Ali and others, 14BLD(AD)127
Penal Code, 1860
Sections 302 and 304 – Absence of intention to cause the death brings the offence of culpable homicide not amounting to murder within the ambit of section 304 of the Penal Code. State Vs. Jahedul Islam @ Moulvi Babu 14 MLR (2009) (AD) 258. Penal Code, 1860 Section 302 – Charge of murder when established beyond all reasonable doubt and when there is no mitigating factor, the death is held to be the proper sentence. When the wife who was living with his husband in the same house and the defence was found false and the charge of murder stood proved beyond all reasonable doubt and there exists no mitigating factor the apex court held the sentence of death perfectly justified. Alamuddin alias Sha pan Vs. The State 14 MLR (2009) (AD) 301.
Penal Code, 1860
Section 302/34 – Charge of murder
Section 300 Exception 4 – Ingredients of exception when not established, the accused cannot get the benefit of this exception. In the instant case the accused could not fulfil the ingredients of section 300, exception 4 and on the contrary the prosecution having established the charge under section 302/34 of the Penal Code beyond all reasonable doubt the High Court Division dismissed the appeal which the Appellate Division found nothing to interfere. Mohammad Mostafa alias Dayemuddin and another Vs. The State 24 MLR (2009) (AD) 334.
Penal Code, 1860
Section 302 – Charge of murder when found based on confessional statement of accused supported by other relevant evidence-Convict appellant was last seen with the victim. The chapati used in committing the murder of the victim was recovered at the showing of the accused who surrendered before the police and made confessional statement recorded under section 164 Cr.P.C. The confession was found voluntary and true. The unbroken chain of events of the occurrence unerringly pointing at the guilt of the accused were proved beyond all reasonable doubts. The Appellate Division held the convict-appellant has been rightly convicted and sentenced. Shajahan Ali (Md.) alias Md. Shajahan Vs. The State, represented by the Deputy Commissioner, Kishoreganj 14 MLR (2009) (AD) 325.
Penal Code, 1860
Section 302/34- Charge of murder- Evidence of partisan witness when does not appear to be tainted with bias can well form the basis of conviction. Non-examination of some of the chargesheeted witnesses when does not cause any prejudice to the accused, it does not raise any presumption adverse to the prosecution. Zakir Hossain and another Vs. The State 14 MLR (2009) (AD) 211.
Penal Code, 1860
Section 302/34 – Charge of murder- Recognition of the accused in the light of full moon. Evidence of witness cannot be discarded on the ground of relationship with the deceased. The trial court upon scrutiny of evidence on record and the facts and circumstances convicted the accused and awarded the sentence of death. The High Court Division accepted the reference. The Appellate Division affirmed the conviction and sentence as being perfectly justified. Talebuddin (Taleb) ( Vs. The State 15 MLR (2010) (AD) 454.
Penal Code, 1860
Section 302- Charge of murder must be proved beyond all reasonable doubt by evidence of independent and reliable witness. The judge must be more scrutinizing to exclude the possibility of false implication of the accused when there is enmity between the parties. Sharafat Mondal and others Vs. The State 11 MLR (2006) (HC) 168.
Penal Code, 1860
Section 302 – Penalty of life imprisonment is held to be appropriate in a case based on circumstantial evidence. Where in a case prosecution is entirely based on circumstantial evidence and there is no ocular evidence of the occurrence and the accused is defended by inexperienced lawyer appointed by the state, the learned judges of the High Court Division held the sentence of imprisonment for life to be appropriate instead of the death sentence and accordingly commuted the sentence of death into one of imprisonment for life. Md. Hashem Vs. The State 11 MLR (2006) (HC) 45. Penal Code, 1860 Section 302 – Charge of murder must be proved beyond all reasonable doubt by consistent and reliable evidence. Conflict between medical evidence and ocular evidence as to the injuries and non-examination of material witness give rise to adverse presumption against the prosecution case, resulting in the acquittal of the accused on benefit of doubt. ljmaruddin alias Dana Miah Vs. The State 11 MLR (2006) (MC) 231.
Penal Code, 1860
Sections 302/34,382- Charge of murder and theft – When the evidences are sharply contradictory- No conviction sustainable in law. When the evidences given during trial sharply contradict with the recitals of the FIR as to recognition and of the names of the accused, the prosecution story becomes doubtful and as such the conviction and sentence awarded thereupon cannot be sustained. Neza @ Nizamuddin and others Vs. The State 11 MLR (2006) (HC) 299.
Penal Code, 1860
Section 302 – Charge of murder Section 84- Exception as to criminal liability- Plea of insanity has to be proved by the defence Code of Criminal Procedure, 1898 Section 465- Procedure of trial of person of unsound mind When the defence established by preponderance of convincing evidences that the accused-appellant was not mentally sound and was incapable of understanding the nature of his act, he is entitled to the exemption as provided under section 84 of the Penal Code. The learned judges of the High Court Division found the trial judge failed to follow the procedure of trial as contemplated under section 465 Cr.P.C which vitiated the trial and as such set- aside the conviction and sentence giving the convict-appellant benefit of section 84 of the Penal Code. Wally Ahmed alias Babi Vs. The State 13 MLR (2008) (HC) 375.
Penal Code, 1860
Section 302/34- Charge of murder and the nature of proof-The cardinal principle of criminal jurisprudence is that an accused shall be presumed to be innocent until his guilt is proved by consistent evidence beyond all reasonable doubt. In case of two versions coming from the prosecution side the one more favourable to the accused shall be accepted. When the charge depends entirely upon circumstantial evidence, such circumstance having unbroken chain of events must be so strong unerringly pointing at the guilt of the accused and nothing else. Contradictions in evidence on material joints made the prosecution case doubtful. Dabir Uddin and others Vs. The State 14 MLR (2009) (HC) 181.
Penal Code, 1860
Sections 302/34, 417 – Appeal against acquittal – Government did not prefer appeal against acquittal. The informant preferred this appeal. The victim was murdered in a broad day light. The learned judges of the High Court Division upon scrutiny found sufficient evidence on record which can well warrant conviction of the accused. Accordingly the appeal is allowed and the order of acquittal is, set aside and the case is sent back for retrial and disposal. Mokdus Ail Vs. Afiz Ali and others 15 MLR (2010) (HC) 318.
Section 303- The provisions of sub- sections (2) and (4) of section 6 deprive a tribunal from discharging it's constitu tional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus, there is no gainsaying that sub-sections (2) and (4) of section 6 of the Ain as well as section 303 of the Code run contrary to those statutory safe-guards which give a tribunal the discretion in the matter of imposing sentence. Bangladesh Legal Aid and Services Trust (BLAST) vs State, 67 DLR (AD) 185
Section 304/326- In the facts and circumstances we are of the view that ends of justice would best be met if the appeal is disposed of with the direction to the convict respondent Nos. 1 and 2 to take steps for getting the appeal heard and disposed of within five months from date. Abdus Sobhan vs Faruque Ahmed Sunan (Amirul Kabir Chowdhury J) (Criminal) 2ADC 866
The Penal Code (XLV of 1860)
Section 304, 324
We have already found that the doctor who held post mortem examination over the deadbody of the deceased found (1) One healed stitched wound (oblique) on front of the right parietal bone measur ing I" in length. (2) Three abreasinon marks on anterior aspect of left shin each measuring ½"X", "X4" amd "X 1/4" which were healed and scab were formed. In the opinion of the doctor death of the deceased was due to com- plications of the above mentioned injuries which were ante-mortem and homicidal in nature. Mashuq Mia @ Iqbal vs The State (M. M. Ruhul Amin J) (Criminal) 3ADC 57
Section 304- Ordinarily, an order of acquittal is not interfered with but to meet the cause of justice we find it a fit case for interference with the order of acquittal of the accused respondent. We have no hesitation to hold that Nuru Mira had been rightly convicted for the murder of Amjad and that reversal of his conviction by the appellate Court is totally unjustified as its finding as to the nature of the fatal injury of Amjad is based on surmises. The State vs Nuru Mira (Shahabuddin Ahmed CJ) (Criminal) 2ADC 867
Section 304- There are some exceptions when culpable homicide is not murder We are satisfied that the ingredients of murder as explained in Section 300 of the IPC are missing in this case. The intention of Tularam was to cause bodily injury to Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was such an injury that could possibly cause his death. This knowledge must be attributed to Tularam. Under the circumstances, the conviction of Tularam of an offence punishable under Section 302 of the IPC is set aside but he is convicted of an offence punishable under the second part of Section 304 of the IPC. The appellant has been behind bars for almost 14 years. His sentence is altered to the period of incarceration he has already undergone. He be released forthwith. .....Tularam VS State of Madhya Pradesh, [5 LM (SC) 101]
Section 304 (Part I)- Though the accused No.1 was not having intention to commit murder of the deceased but the act was to cause bodily injury which was likely to cause death. Therefore, the High Court found that he would be responsible for commission of culpable homicide not amounting to murder punishable under Section 304 (Part I) of IPC. The High Court after scanning the entire evidence also held that the respondents were not having an intention to commit murder of the deceased Rajesh. We do not find any infirmity in the judgment of the High Court. State of Madhya Pradesh =VS= Gangabishan, [5 LM (SC) 104]
Sections 304B and 498A- The father- in-law and mother-in-law of the deceased, one Shanti Devi, have been convicted under Sections 304B and 498A of the Indian Penal Code, 1860 (for short, 'the IPC). They have been sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304B IPC and for a period of one year for the offence under Section 498A IPC- Demands for dowry by the accusedappellants as well as the husband and illtreatment/ cruelty on failure to meet the said demands is evident from the evidence of PW6. From the evidence of PW1, it is clear that the death was on account of burn injuries suffered by the deceased which injuries were caused by use of kerosene. In the light of the aforesaid evidence, this Court has no hesitation in holding that all the three ingredients necessary to draw the presumption of commission of the offence under Section 304B IPC have been proved and established by the prosecution. The offence under Section 498A must also be held to be proved against the accused persons. We. therefore, have no hesitation in dismissing the appeal and in affirming the conviction and sentence imposed by the High Court. Jagdish Chand -VS- State of Haryana, (6 LM (SC) 133]
Section 304 Part I— The accused was free to inflict as many blows as he liked—That he dealt merely one blow shows that he did not intend to kill the victim. The killing cannot be termed murder. State vs Khalilur Rahman 48 DLR 184.
Section 304 Part II— There was none to stop Rashid to deal repeated blows if he had the intention to kill—he merely had struck one blow which eliminates the intention to kill. Therefore, the intention to kill is lacking—It is not a case of culpable homicide amounting to murder but a culpable homicide not amounting to murder. Abdul Khaleque and others vs State 48 DLR 446.
Section 304 (Part I)- The Appellate Division is of the view that the offence attracts section 304 of the Penal Code, which contains two parts. The evidence on record proved that the appellant intentionally inflicted the injury/injuries with a pistol aiming the abdomen and chest either to cause death or to cause such bodily injury which is likely to cause death and therefore, his act attracts Part 1 of section 304 of the Penal Code. Since the appellant used a pistol and shot at chest, he deserves the maximum sentence provided in Part I of Section 304 and shall also liable to fine....... Tofayel Ahmed =VS= The State, [1 LM (AD) 511]
Sections 304(Part I, II) r/w sec. 300- Culpable homicide- An offence of culpable homicide may or may not amount to murder but all murders are culpable homicide. Even if the culpable homicide attracts section 300, if any of the special exceptions provided in section 300 is attracted, then also the offence will be culpable homicide not amounting to murder punishable under either part I or Part II of section 304. It depends upon the facts and circumstances of each case. Khalil Peada VS The State, [4 LM (AD) 374]
Section 304 (Part II)- High Court Division has totally misread the medical evidence The High Court Division has totally ignored that aspect of the matter and wrongly held that the appellants caused the injuries with deadly weapons resulting to the death of the victim. It has totally misread the medical evidence. The case attracts an offence of culpable homicide not amounting to murder and accordingly, we covert the conviction of the appellants to one under section 304 Part II of the Penal Code and reduce their sentence for the period they have already under gone. The appellants be set at liberty at once if not wanted connection in any other case. The appeal is dismissed with the modification of the conviction and sentence.Firoz Ali =VS= The State, [5 LM (AD) 223]
Section 304(Part II) r/w sec. 302/34- Culpable homicide- It is admitted by the informant in his deposition that there was land dispute. The High Court Division noted that accused Nayan gave only one blow to the left knee which is not a vital part of the body showing that he did not intend to kill the victim for which the killing cannot be termed as murder. The High Court Division concluded that it is not a case of culpable homicide amounting to murder, but one of culpable homicide not amounting to murder and, accordingly, altered the conviction to one under the second part of section 304 of the Penal Code...... The State VS Nayan, [4 LM (AD) 523]
Penal Code, 1860
Section 304- Offence of culpable homicide not amounting to murder- Postmortem Examination Report when does not support, the prosecution case becomes doubtful. Since the postmortem report categorically states that the deceased died of some disease and the evidences of the P.W.s are discrepant on material points, the learned judges of the High Court Division found the charge not established beyond doubt and as such acquitted the convict-appellants. Sheringir Mollah and others Vs. The State 13 MLR (2008) (HC) 341.
Penal Code, 1860
Section 304/34 – Conviction cannot be based on omnibus statement of the prosecution witness Charge must be established by specific and reliable evidence. Several accuseds cannot be convicted on the basis of omnibus statements of the prosecution witness. When the evidence of the eye witnesses do not support the injuries of the victim mentioned in the post mortem report and the evidence of the other material witness stand in sharp contradiction, the learned judges of the High Court Division held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. The State 11 MLR (2006) (HC) 437.
Free Fight
When it is clear from the
evidence that the free fight between the parties took place following an
altercation, it stands out that death of the victim was caused without any premeditation
in a sudden fight in the heat of the passion and the accused having not acted
in a cruel or unusual manner, this readily brings the case under section 304
Part I of the Penal Code. Abul Kalam Azad Vs. The State, 14BLD (HCD) 401 Ref:
PLD 1950(Lahore)90; 14BLD(1994) 33: 40 DLR 443-Cited
Section—304 Part II
On scrutiny and careful analysis of the evidence of the P.Ws it appears that accused Shamsul Huq did not foresee that throwing of brick towards victim Kastura Bibi would cause death to her. He had no intention to cause death or to cause such bodily injury as was likely to cause death. Victim sustained violent blow on the abdominal wall by the brick thrown towards her chest and got senseless but death occurred when accused Abdul Hoque (since deceased) pressed her on the neck resulting in her spontaneous death. Death would not have occurred if accused Abdul Hoque would not have played the part of pressing the victim on her neck. Accused Shamsul Huq had no premeditated intention to kill the victim and the intention to kill is lacking in the instant case. Although, he had no intention to kill the victim, it must be held that he had the knowledge that such throwing of brick was likely to cause her death and the act done by him was both rash and indiscreet and as such accused Shamsul Huq is liable for the commission of an offence punishable under section 304 Part II of the Penal Code. Abdul Jabbar and another Vs. The State, 18BLD(HCD)109 Ref: 5BLD(AD)198; 6BLD(AD)318; 10 BLD (AD)210; 5BLD 129; 8BLD 129; 48DLR 446—Cited
Penal Code, 1860
Section 304 – Part I – Offence of culpable homicide not amounting to murder-
Section 34- Is attracted when the accuseds in furtherance of their common intention participate in commission of the offence
Section 34 does not create substantive offence. It lays down the principle of joint liability. Participation in the commission of an offence in furtherance of common intention attracts the section. Fundamental principle of administration of criminal justice is that until an accused is conclusively proved to be guilty of an offence beyond all reasonable doubt he shall be presumed to be innocent. An accused may be acquitted on the benefit of doubt. But such benefit of doubt must be based on evidence on record and the facts and circumstances of the case and not be imaginary or fanciful doubt based on surmise or conjecture.
Section 313/324/326/34
During pendency of the appeal the respondent
Md. Alauddin filed an appli- cation for bail and he was fugitive from trial for
many days during the trial but still was allowed bail by the High Court
Division.
Appellate Division after hearing the matter
passed an order to stay the order of bail granted by the High Court Division
till disposal of criminal appeal before the High Court Division directing the parties
to take steps for expeditious disposal of criminal appeal and accordingly the
paper books being pre- pared have been filed and the appeal has been made ready
for hearing. Md. Tofeil Ahmed vs. Md. Alauddin and another (Amirul Kabir
Chowdhury J) (Criminal) 4ADC 895
Penal Code, 1860
Section 314- Charge of causing miscarriage with the consent of the victim falls under part-I of Section 314
Miscarriage was caused to the victim Anwara Begum by administering herbal plant in her uterus as a result of which she died in the Hospital. From the evidence it appeared that she was a consenting party to the miscarriage. In that view of the matter the charge falls under part I of section 314 of the Penal Code punishable with imprisonment for a term which may extend to 10 years. But the convict appellant has been awarded a sentence of imprisonment for life. The learned judge of the High Court Division upon consideration of the evidence on record allowed the appeal in part with modification, of sentence for five years imprisonment. Raquib Sheikh (Md.) Vs. The State 11 MLR (2006) (HC) 80.
Sections 319 and 320-Hurt has been defined in section 319 of the Penal Code and grievous hurt has been defined in section 320 thereof. In the Ain, 2000, the word 'hurt' has not been defined and consequently the meaning might constitute 'grievous' or 'simple' hurt. Nurul Huda (Md) vs State, represented by the DC. Lalmonirhat, 67 DLR (AD) 231
Sections 320, 325 & 326— There is no evidence that any of the injuries endangered the life of any of the victim. There was no fracture, the victims were discharged from the hospital after treatment of several days. There is no evidence to show that any of the victim suffered severe bodily pain for a period of 20 days or unable to follow his ordinary pursuits. So the conviction under sections 326 and 325 of the Penal Code is not proper and legal. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457
Section 323- An occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence On scrutiny of the post- mortem report, we find that no particular mention has been made of existence or non-existence of any injury to the eyes of the victim, as there is no specific column in the form of the post-mortem report for the eyes. On the other hand, the inquest report shows that injury to the eyes was noted by the SI of Police. The evidence of PWs 1 and 4 supports the FIR story that the accused-appellant caused an injury to the left eye of the victim with a bamboo stick.
There remains no doubt that an occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence. However, in view of the facts and circumstances of the case. The alleged nature of the injury caused by the accused-appellant, we are of the opinion that conviction under section 323 of the Penal Code would be more appropriate and that the ends of justice will be sufficiently met if the sentence of the appellant is modified to the period already undergone by him in custody. Tthe appeal is dismissed with the modification of conviction and sentence. ...Rafiqul Islam Howlader(Md) =VS= State, [8 LM (AD) 630]
Sections 323/364/379- The police has submitted charge sheet against the accused persons and the trial court also, on examination and consideration of the materials on record, found a prima facie case against the accused persons. So, The framing of charge against them was not illegal. ...Selim (Md) VS State, [8 LM (AD) 360]
Section 325 r/w Section 34- The awarding of sentence for an offence punishable under Section 325 read with Section 34 IPC is concerned, the High Court was of the opinion that the respondents have already undergone some reasonable length of jail sentence as under- trials and the same, in our opinion, appears to be sufficient. It is more so because, in addition, a fine of Rs.50,000/- was also awarded. This would meet the ends of justice. We find no reason to interfere on this issue too for the following reasons. Subhash Chander Bansal =VS= Gian Chand, [4 LM (SC) 121]
Section 326A— The offence of gouging out eyes falls with section 326A of the Penal Code. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529.
Section 326/302/109/34
That the instant petition has been filed with
oblique motive to delay and drag the disposal of the case as previously also a
number of applications have been unsuccessfully filed at the instance of
accused persons one after another and that the accused petitioner himself made
prayer to transfer the case from the court of Druto Bichar Tribunal, Court No.1
alleging bias of the learned Judge and accordingly the High Court Division
passed an order. Md. Sahidul @ Sahidul Hossain Hannan vs. The State (Amirul
Kabir Chowdhury J) (Criminal 4ADC 794
The Penal Code (XLV of 1860)
Section 326A
That there being inordinate delay in lodging
the F. I. R and there being no evidenced whatsoever of recognition of the
accused the Judgment passed by the High Court Division is not above board. The
State vs Moniruzzaman Kazi alias Thanda Kazi (Syed J. R. Mudassir Husain CJ)
(Criminal)3ADC 392
Section 326 r/w sections 149 and 304- We are of the view that conviction of the petitioner under section 326 read with sections 149 and 304 of the Penal Code was not justified. The evidence on record reveals that the leave-petitioner, in fact, committed the offence under section 323 of the Penal Code. Therefore, the leave- petitioner is acquitted of the charge under sections 149/326 and 324 of the Penal Code but he, is, however, convicted under section 323 of the Penal Code and his sentence is reduced to the period he has already undergone. ..... Jaher Miah (Md.) =VS= The State, [4 LM (AD) 366]
Section 328, 420
That the prosecution witnesses having been
believed by the learned trial Judge. the High Court Division erred in law in
discarding the evidence of the prosecution witnesses for some artificial
reasons not warranted by law. The State vs Abul Kalam (Amirul Kabir Chowdhury
J) (Criminal) 3ADC 87
Section 336/34, 366, 365
Courts below failed to appreciate that the
informant of the case is not the law ful guardian or custodian of victim Rahim
Kahtoon and the victim was not taken out of the keeping or lawful custody of
the informant and in the instant case none of the courts below considered the
evidence of D. W. I the admit- ted mother of the victim where she stat- ed that
her daughter was not kidnapped by anybody but was given marriage to accused
Rashid by herself and as such no offence under Section 366/34 of the Penal Code
was constituted and the petitioners were not liable to be convicted for the
offence as alleged. Dulal @ Md. Dulal Talukder vs The State (Amirul Kabir
Chowdhury J) (Criminal)3ADC 422
Section 341/320/302/34
The story of the alleged dying declaration
also appear to be concocted P. W. 2 did not divulge the story of her recording
a dying declaration to anybody else for a long period and the recorded declaration
did not see the light of the day at least within who months from its date . A
dying declaration recorded by a close relative of the victim and which was kept
secret for an unusual period cannot inspire confidence and apparently appears
to have been concocted with ulterior motive. Mainul Islam vs The State (Amirul
Kabir Chowhdury J) (Criminal) 3ADC 424
Section 342— An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence. Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman and others vs State 51 DLR (AD) 33
Sections 361, 363 & 366A— Age of majority and guardianship—Decision as to custody of a minor pending criminal proceedings—Neither personal law nor Majority Act is relevant for the purpose. The statute that holds good is the Penal Code. If the allegations are that of kidnapping of a minor girl, then for the purpose of her custody, the court has to proceed on the basis that she is a minor if she is under 16. If however the allegations are that of procuration of a minor girl, the court has to proceed on the basis that a girl is a minor who is under 18. Wahed Ali Dewan vs State and another 46 DLR (AD) 10.
Section 362-After school hours, Trisha was going home, but was prevented by the appellants from going there and she had to go to Khapara lane because of the chase led by the appellants and thus, she was compelled to go from one place to other within the meaning of section 2(Kha) of the Ain and chasing definitely involved the element of threat within the meaning of definition of "অপহরণ". The appellants committed the offence under section 7 of the Ain. High Court Division suffered from the intuition that "কোন স্থান হইতে কোন ব্যক্তিকে অন্যত্র যাইতে বাধ্য করা" must be a far place. High Court Division was obsessed with the definition of abduction as given in section 362 of the Penal Code in coming to the finding that there had been no abduction, but there was an attempt to abduct. (PER MD ABDUL WAHHAB MIAH J, MAJORITY). Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111
Sections—363 and 361
Custody of a victim girl, if the allegations are that of kidnapping of a minor girl out of the keeping of the lawful guardian. Kidnapping of a minor girl out of the keeping of the lawful guardian is an offence under Section 363 of the Penal Code. For the purpose of custody of the victim girl as may be prayed for in the criminal Court in a pending proceeding, the Court has to proceed on the basis that the female is a minor under sixteen years of age as laid down in section 361 of the Penal Code. For proving the offence of kidnapping the minority of the victim will have to be established at the trial. Md. Wahed Ali Dewan Vs. The State and another, 14BLD(AD)32
Sections 363 & 366A— A minor to be taken out of the lawful custody of her guardian as under section 363 must be a minor under 16. A minor under 18 would be referable to section 366A. She cannot be allowed to go whether she attains the age of 18 years. Dr Bimal Kanti Roy vs State and othrs 46 DLR 541.
Section 364/302/301/34
The petitioner was tried on the charge of
kidnapping one Raisuddin uncle of informant Abu Taher on 10.09.1991 and
thereafter murdering him and causing disappearance of evidence by conceal- ing
the dead body. Army Habilder Abdul Gafur vs. The State (Amirul Kabir Chowdhury
J) (Criminal)4ADC 988
Section 366A— The FIR was lodged under section 366A of the Penal Code. The offence under section 366A is related to a girl under the age of 18 years and not under the age of 16 years. Nurunnahar Khatun vs State 46 DLR 112.
Section 366A— In an interlocutory matter concerning custody of a girl, to give a final judgment on her age is to decide an aspect of the merit of the case which is decisive of the case itself. After the decision has been given that the girl is quite major above 18 years, can there be any purpose for a trial which is still pending? The learned Judges should have made it very clear that the finding made by them as to the age of the girl was only for the purpose of deciding the present custody of the victim girl and the trial Court was free to take its own decision upon considering the evidence to be led in the case. That having not been done, it must be said that the impugned judgment suffers from at least impropriety having usurped the powers of the trial Court in a pending criminal case. Khairunnessa vs Illy Begum & another 48 DLR (AD) 67.
Section 366A—Age of girl—Physical appearance—Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In some cases physical development may take place which may be regarded as precocious while in some other cases there may not be as much development as is natural with the passage of time. Having regard to the fact that the available materials supported the claim of the mother that the girl was aged about 15/16 years except the statement of the girl herself, the High Court Division cannot be said to have acted judiciously in ingnoring the materials and relying on the statement of the girl and their own observation of the girl. The mother has a reasonable grievance to make against the judgment which does not seem to have been passed upon a proper appreciation of the materials on record and far less keeping in view the welfare of the victim girl alleged to be a minor. Khairunnessa vs Illy Begum and another 48 DLR (AD) 67.
Section 375-Rape-The victim, being a minor, was not handed over to her parents who are her best well-wisher PW 1 being convener of Mohila Parishad under took the matter for prosecution beyond the knowledge of her parent. As such High Court Division disbelieved the entire story of commission of rape on the person of a minor girl which deserves no interference. (PER MD ANWARUL HAQUE J, MAJORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218
Section 375-Rape-A case of rape is not proved simply because the wearing apparel of the raped victim was not produced to the investigating officer and no expert examination took place, Sexual intercourse with a girl below the age of 14 years is ipso facto rape. (PER MD IMMAN ALI J, MINORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218
Section 375-Rape-A 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (PER MD IMMAN ALI J, MINORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218
Section 375-Rape-Section 2(গ) or the Ain, has explained 'rape', "ধর্ষণ শব্দটি” Penal Code (Act XLV of 1860) এর section 375 এ উল্লিখিত "rape" শব্দটির ন্যায় একই অর্থ বহন করিবে।" According to section 375 of Penal Code mere penetration is sufficient to constitute rape. Syed Sajjad Mainuddin Hasan @ Hasan vs State, 70 DLR (AD) 70
Section 376- Sentencing For Rape- According to Ashworth, the features of many rapes are severe emotional and psychological trauma, sometimes involving fear of pregnancy and sexually transmitted diseases and continuing sense of insecurity. Most rapes involve violence or threat thereof and other sexual indignities. The offence, in Hirsh and Jareborg's terms, poses a threat to physical integrity, which is compounded by humiliation and deprivation of privacy and autonomy. The typical effect on the victim is minimal well being and the culpability is generally high. (Para-866); ...Allama Delwar Hossain Sayedee VS Government of Bangladesh, [2 LM (AD) 76]
Section—376
The offence committed by accused appellant finds corroboration from the medical report, namely the report of P.W. 1 who found marks of violence on the person of the victim and opined that this is a case of rape. The evidence of the witnesses has clearly established that accused appellant committed the crime of rape on victim Kazal Rekha. The learned Judge has rightly found the accused guilty of the offence under section 376 of the Penal Code. Tofazzal Hossain Khan Vs The State, 17 BLD(HCD)306
Section—376
Cruelty To Woman (Determent Punishment) Ordinance, 1983 (LX of 1983)
Section—4(b)(c)
The High Court Diyision on consideration of evidence of PWs rightly found that accused-petitioner Bazlu raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim girl Mahinur Begum and as such the finding of conviction and sentence of the High Court Division are based on proper appreciation of evidence on record. Bazlu Talukder Vs The State, 20 BLD (AD) 227
Section 376- Committed rape- It is fairly well-settled that in the absence of external injury on the person of the prosecutrix, it cannot be concluded that the incident had taken place with the consent of the prosecutrix. It depends upon the facts and circumstances of each case. The impugned judgment of the High Court reversing the conviction of the respondent to acquittal, cannot be sustained and the same is liable to be set aside and the judgment of the trial court convicting the respondent under Section 376 I.P.C. is to be restored. The trial court has sentenced the respondent-accused undergo to imprisonment for a period of seven years. Accordingly the appeal preferred by the State is allowed and the conviction of the respondent-accused under Section 376 I.P.C. as passed by the trial court is restored. However, the period of sentence of seven years, as noted above, is reduced to four years. In case the respondent has not already undergone the sentence of imprisonment of four years, he is to surrender to custody within a period of fours weeks from today to serve the remaining sentence failing which he shall be taken to custody.......State of Madhya Pradesh -VS- Preetam, [5 LM (SC) 96]
Section 376- Sex after obtaining consent by false promise to marry is rape- Rape is a crime against the entire society and violates the human rights of the victim The accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellantaccused for the offence punishable under Section 376 of the IPC. The appellantaccused must face the consequences of the crime committed by him. We are of the opinion that both the Courts below have rightly convicted the appellantaccused under Section 376 of the IPC. We also maintain the conviction of the appellantaccused under Section 376 of the IPC. The sentence of 10 years' RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC. The present appeal is partly allowed to the aforesaid modification in the sentence only....Anurag Soni =VS= State of Chhattisgarh, [6 LM (SC) 77]
Section—379
When growing of the case crops by the complainant and the cutting and dishonestly and taking away of the same by the accused are proved, the accused is guilty of theft under section 379 of the Penal Code. In such circumstances, no plea of bonafide claim of right to the case land can save the accused from the criminal liability. Md. Motaleb Sardar and others Vs. The State and another, 19BLD(HCD)407
The
submission that having regard to the evidence of the informant that the
articles stolen from his house were worth about Tk. 5,000/- only, the Village
Court had exclusive jurisdiction to try the case and the learned Magistrate
acted illegally and without jurisdiction is an afterthought submission in that
neither in the trial Court nor before the High Court Division this question was
ever raised. The petitioner is not permitted to raise this question for the
first time before the Appellate Division. Haider Ali Khan Vs. The State, 14BLD
(AD)270
Section—379
Theft and bonafide claim of right
It is well-settled that a co-sharer in exclusive possession of a parcel of land is entitled to maintain his possession therein to the exclusion of his co-sharers until the ejmali property is partitioned by metes and bounds but before effecting such partition the co-sharers or co-owners out of possession have no right to disturb his possession, not to speak of cutting and taking away crops grown by him. In such a case the bonafide claim of right in the land cannot extend to cutting and taking away crops grown by a co-sharer in possession. Bonafide or contested claim of right is no defence against a charge under section 379 of the Penal Code for cutting and taking away crops grown by the co-sharer in possession. Nasiruddin Shah and others Vs Nazrul Islam and others, 18BLD (HCD) 634
Sections 379 & 447— When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others vs State and another 51 DLR 278.
Sections 383, 384, 386 & 387-The application of sections 386 and 387 of the Code are confined to cases which remain only upto the stage of 'threat', but once the act of extortion is actually committed, sections 383 and 384 of the Code come into play. Mustaq Ahmed vs State, 64 DLR 301
Sections 384, 511, 420 and 120B- Voice sample for the purpose of comparison- The Appellants demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks. The FIR was registered against the Appellants for offences under Sections 384, 511, 420 and 120B of the Penal code.
Our directions ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. Sudhir Chaudhary =VS= State (NCT of Delhi), [1 LM (SC) 615]
Section 385/109/34
Obtain bail in the instant case filed
against her under Sections 385/109 of the Penal Code. .....(2) Government of
Bangladesh vs. Sheikh Hasina and another (Md. Abdul Matin J) (Civil) 5ADC 541
Sections 386, 387 & 390— The distinguishing element between extortion and robbery or dacoity is not the presence of the offender but the presence of imminent fear and also the delivery of possession of goods to the offender, the actual delivery or possession of property by the person put in fear is the essence of the offence of extortion. Where a person through fear passively allows, his property to be taken away the offence committed will be robbery or dacoity and not extortion. The Special Tribunal had no jurisdiction to try this case as the offence alleged against does not come either under section 386 or section 387 of the Penal Code, but it is more in the nature of a robbery or a dacoity. Dulal Howlader and others vs State 48 DLR 269.
Section 391-In order to commit 'dacoity', there must be at least five persons as contemplated by section 391 of the Code. Naturally a question arises as to whether the four accused, can be convicted and sentenced under section 396 of the Code. There is an illuminating decision in the case of Abdul Wahed vs State, 8 DLR 50. Akbar Ali Lalu alias Roni vs State, 66 DLR 134
Section 391 and 396-Dacoity- Attempt in committing dacoity is also dacoity-Taking away of any booty from the victim or informant is not any pre- condition of dacoity rather an attempt in committing dacoity is also dacoity. State vs Delwar Hossain, 64 DLR 356
Section 395, 397, 109, 409, 414
In a suit of this kind the trial Court
and the appellate Court are not required to sit in judgment over the findings
of either the Enquiry Officer or the punish- ing authority as no Court has
jurisdic- tion to act as an appellate authority sit- ting on appeal over the
findings of a domestic tribunal. No Court has the jurisdiction to substitute its
own finding for that of the Enquiry Officer or the punishing authority, as the
case may be. The trial Court and the appellate Court cannot assume the role of
a fresh fact- finding body over which either the Enquiry Officer or the
punishing author- ity has already made their respective exercises in a domestic
proceeding. The Trading Corporatin of Bangladesh vs Kazi Abdul Hye (Mustafa
Kamal JKCivil) 2ADC 206
Section 396-The measure of punish- ment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Akbar Ali Lalu alias Roni vs State, 66 DLR 134
Section 396- Review- It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review- It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review. From the judgment of this Division, it appears that this Division, considering the evidence P.Ws. 21,22,24,25,26,27 and 30, drew conclusion that the arms, seized from the exclusive custody and control of the review petitioner, was used for killing of victim Khalaf which was a strong circumstance to connect the petitioner with the occurrence of killing the victim. It is evident that the petitioner is a professional and hardened criminal and that the offence was committed by him in a brutal and diabolical manner on a foreign diplomat, for which, the respect and image of the country in the international arena has been affected seriously so it is the duty of the Court to award appropriate punishment. Accordingly, the Courts did so. No excuse or circumstance can mitigate such a treacherous and cowardly act. The review petition is dismissed. ...Saiful Islam alias Mamun -VS- The State, [8 LM (AD) 623]
Section 396- We are also of the view that the offence under Section 396 IPC is to be viewed with seriousness, especially, when the dacoits are armed. But in the case in hand, the accused were not armed. Accused Babu @ Nawab Sahib is alleged to have sat on deceased Muthukrishnan and pressed his nose and mouth and is alleged to have tightened his neck with the rope. The occurrence was of the year 2002. Considering the long lapse of time and the facts and circumstances of the case, the sentence of imprisonment for life is modified as ten years as directed by the trial court. Shajahan =VS= State Rep. By Inspector of Police, [4 LM (SC) 115]
Section 396— Dacoity with murder—When a murder is not committed in the course of committing dacoity there can be no conviction under section 396 of the Penal Code. Since the prosecution has failed to prove the commission of dacoity and murder of victim Tajul by the condemned-prisoner and his associates by any cogent and reliable evidence the order of conviction is not sustainable in law. State vs Mesbahuddin 49 DLR 245.
Penal Code, 1860
Section 380 – Allegations of theft by husband against wife do not constitute punishable offence
Allegations of theft made by the husband against the wife during the subsistence of marriage do not constitute punishable offence. The learned judges of the High Court Division having found the proceedings abuse of the process of the court quashed the same in exercise of the power under section 561A Cr.P.C. Sabina Rahman Mukti and others Vs .The State 13 MLR (2008) (HC) 347
Penal Code, 1860
Section 394- Charge held established – Recognition by voice
Code of Criminal Procedure, 1898
Section 154 – Delay in lodging FIR when explained is not fatal for the prosecution
In the instant case the convict-petitioner remained absconding after his release on bail and the trial was held in his absence in which he was convicted and sentenced. The delay of two days in lodging F.I.R was satisfactorily explained. The plea that the petitioner is not the actual accused which the apex court rejected as it is raised at such a belated stage. It is further held the charges were amply proved and the recognition of the accused by voice was established. The Appellate Division in the facts and circumstances dismissed the leave petition. Rana (Md.) Vs. The State, represented by the Deputy Commissioner, Joypurhat 15 MLR (2010) (AD) 173.
Punishment for robbery
Punishment for voluntarily
causing hurt in committing robbery When it is found that robbery has been
committed by the accused persons without causing hurt to anybody, the offence
comes within the mischief of Section 392 and not under Section 394 of the Penal
Code. Gohar All and another Vs. The State, 16BLD(HCD)398
Penal Code, 1860
Section 394- Charge must be established by consistent and reliable evidence
In a criminal trial the charge framed should contain specifically the particulars of time, place and manner of occurrence.
Again the court must bring to the notice of the accused while being examined under section 342 Cr.P.C. The incriminating materials on record. The charge shall have to be proved by consistent and credible evidence. When the mandatory requirements are not complied with, such non-compliance causes prejudice to the accused occasioning failure of justice and as such the conviction and sentence passed therein cannot be sustained in law. Shahid Mia and another Vs. The State and another 13 MLR (2008) (HC) 303.
Section 392,411
The learned Advocate for the petitioner could not point out to any tangible mate- rial on record to substantiate the submission that petitioner was entitled to be discharged from the charge framed against him. Ali Akbor Khan vs The State (Md. Ruhul Amin J) (Criminal) 3ADC 64
Section—392
Punishment for robbery
Section—394
Punishment for voluntarily causing hurt in committing robbery
In view of the fact that the two appellants and some other unidentified persons illegally confined the informant shop-keeper and others in the shop and by curtailing their liberty forcibly looted away valuable goods from their possession but without causing hurt to anybody, the appellants committed the offence punishable under section 392 of the Penal Code not under section 394. Gohar Ali and another Vs. The State 16BLD (HCD) 398
Section—394
Non-examination of investigating officer does not always prejudice the accused
Admittedly the appellants remained in abscondence during the whole trial and in such a situation the non-examination of the investigating officer cannot be said to have caused any prejudice to the appellants. Gohar Ali and another Vs. The State 16 BLD (HCD) 398
Section 394
The informant was accompanied by other employees of the company at the time of occurrence and as such they are most natural witnesses of the occurrence. We are, therefore, of the view that examination of the said witnesses though belonging to informant's company has not damaged the prosecution case. Mohammad Salim Ahmed vs The State (Amirul Kabir Chowdhury J) (Criminal)3ADC 496
Penal Code, 1860
Section 395 and 397 – Offence of dacoity
Code of Criminal Procedure, 1898
Section 439- Allowing the benefit of acquittal to non-appealing convicts
Confessional statement of an accused cannot be used against other co-accused without corroboration. When the conviction and sentence is not based on any legal evidence the same cannot be sustained in the eye of law. Benefit of acquittal can well be allowed to non-appealing convicts. Abdus Sattar @ Sottar Vs. The State 11 MLR (2006) (HC) 367.
Section—395
Dacoity is usually committed at dead hours of the night and in that view of the matter the means of recognition is of vital importance. The Court is to scrutinise the evidence of witnesses with great care and caution in respect of recognition of the accused persons. Where the informant’s testimony remains uncorroborated and the identity of the accused is not established beyond reasonable doubts, it is unsafe to convict the accused persons. Kuti alias Bellal and others Vs. The State, 15BLD (HCD) 9
Section—395
In a case of dacoity committed in the darkness of night the question of recognition is of vital importance. When the only eye witness to the occurrence does not state in his evidence about the means of recognition of the alleged dacoits, the order of conviction cannot be sustained. Subal Chandra Das Vs. The State, 15 BLD (HCD) 121
Section 395, 397, 412
As the accused had no knowledge that the 13
barrels of oil recovered from his custody were the subject matter of the
dacoity and none of dacoits identified the accused to be in dishonest possesion
of the recovered 13 barrels of stolen oil and that the accused-petitioner has
been languishing in jail custody for the last 2 years and having been found
guilty under section 412 of the Penal Code, ends of justice would be best. Ali
Akbar@ Ali Abkar Dewan vs The state (Mohammad Fazlul Karim J) (Criminal) 3ADC 746
Section 396
It is on record that the accused Mafizuddin
was arrested on 22.08.1997 and he was produced before the recording Magistrate
on 24.08.1997 and there is no explanation for delay in producing the condemned
prisoner Mafizuddin before the recording Magistrate within the specified time.
The State vs Mofizuddin and others (M. M. Ruhul Amin J) (Criminal) 3ADC 840
Section 396
Dacoity was committed in the house of the
informant
In course of dacoity the informant, P.W.1,
recognized some dacoits. The police thereafter took up investigation, visited
the place of occurrence, prepared the sketch map with separate index, examined
witnesses and recorded their statement under section 161 of the Code of
Criminal Procedure: Saiful Islam Shaikh vs. The State, represented by the
Deputy Commissioner, Gopalgonj (Md. Joynul Abedin J) (Criminal) 4ADC 984
Section—396
In absence of any evidence of dacoity by any of the witness and in absence of any recover of any article taken away during the dacoity from the possession of any of the accused person it can be safely said that the prosecution has hopelessly failed to prove the case of dacoity and therefore the charge under section 396 P.C. must fail on the ground of absence of evidence to prove any of the ingredient of section 391 of the Penal Code. The State Vs Md. Abdul Ali and others Vs The State, 20BLD(HCD)327
When a
murder is not committed during commission of the dacoity there can be no
conviction under Section 396 of the Penal Code. The State Vs. Mesbahuddin,
16BLD (HCD)533
Penal Code, 1860
Section 396- Charge need to be proved by legal evidence-
Code of Criminal Procedure, 1898
Section 164- Confessional statement recorded by Magistrate after keeping the accused in police custody beyond the statutory period is held to be not voluntary. In case of capital punishment the charge must be proved by legal evidence beyond reasonable doubt. Confessional statement of an accused recorded under section 164 Cr.P.C. keeping him in police custody beyond the specified period without explanation is held not voluntary and as such cannot be the basis of conviction without independent corroborative evidence. State Vs. Mofizuddin and others 11 MLR (2006) (AD) 76.
Penal Code, 1860
Section 396- Offence of dacoity- Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266.
Penal Code, 1860
Section 396- For the Commission of dacoity with murder every member of the gang is equally liable.
Evidence Act, 1872
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 164 – Confessional statement of an accused has to be recorded in accordance with the provisions of section 364 Cr.P.C.
Absconsion 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.
Penal Code, 1860
Section 398- Charge held not proved beyond doubt when the evidences are sharply contradictory and material witnesses are withheld-
In the instant case the Investigating officer and the Magistrate who recorded the confessional statement of the convict appellant have not been examined by the prosecution without any satisfactory explanation. On the contrary the evidences of the witnesses so far examined are full of contradictions. In such circumstance the learned judges of the High Court Division held the charge not proved beyond reasonable doubt and acquitted the convict-appellants. Latif alias Md. Latif Miah and Rabiuzzal Hossain Vs. The State 13 MLR (2008) (HC) 410.
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