Evidence Act, 1872 | Criminal AD Cases | Case Reference

Evidence Act [I of 1872]

Section 3-Confession of a co- accused is a type of evidence which is very weak in nature, as it does not come within the definition of "evidence". State vs Abdul Kader @Mobile Kader, 67 DLR (AD) 6

Section 3-If there is no other evidence against co-accused except the confession, then, the confession by itself being merely a matter to be taken into consideration, and not being an evidence under section 3, no conviction of the co- accused could be given relying on such confession. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 3

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

Section 3

The Appellate Division further opined that normally, the Appellate 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 the Appellate Division to step in and correct the erroneous decision of the High Court Division. In consideration of the evidence on record as discussed, the Appellate Division is of the view that all the convict appellants are entitled to get the benefit of doubt. In such view of the matter, the order of conviction and sentence of the appellants is liable to be set aside. Abu Taher and others Vs. The State. (Criminal) 17 ALR (AD) 6-17

Sections 3 & 30

The Evidence Act (I of 1872)

Sections 3 & 30 r/w

Nari-O-Shishu Nirjatan Daman Ain, 2000

Sections 9(2)/30 r/w

The Penal Code, 1860

Section 201/403/411

Confessional statement suffered from meager and lack of independent corroboration. So, on the basis of such confession, conviction of the appellant cannot be sustained in accordance with law– We have discussed the deposition of the star witnesses of this case thoroughly but we find no corroboration of the evidences with each other, rather, we find material contradiction in the testimonies of the P.Ws. with the extra- judicial confession of the co-accused Mosila and in fact there is no extra-judicial confession of the condemned appellant. Therefore, the opinion of the High Court Division does not reflect the real facts and circumstances of the instant case.

The confession made by a co-accused Mosila in the facts and circumstances of the instant case cannot be said that it is corroborated by other evidence and, as such, it cannot be the sole basis of conviction of another co-accused. The Criminal Appeal No.21 of 2015 is allowed. The Appellant Saley Akram alias Polash is acquitted from charges levelled against him. ...Saley Akram alias Polash =VS= The State, (Criminal), 2021(1) [10 LM (AD) 360] 

Sections 3, 8, 30

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

Sections 3 and 30

The Evidence Act, 1872

Sections 3 and 30

The Penal Code, 1860

Section 396

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

Section 3-A statement under section 342 CrPC is not evidence within the meaning of section 3 of the Evidence Act. Shah Alam vs State 42 DLR (AD) 31.

Section 3-A witness for the prosecution does not become partisan per se nor an eyewitness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole, State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Section 3- Only because of relationship witnesses evidence cannot be thrown away unless the evidence is found to be untrue or tainted with motive. Yogeshwar Gope vs State 58 DLR (AD) 73.

Sections 3 and 5-Circumstantial evidence -Its conclusiveness assessment of evidence- This is a case in which a minor boy, the victim of murder, was called away by and seen in the company of the two young accused for the last time before disappearance and then some time thereafter the body of the victim was found out. The fact of calling away of victim Khairul by accused Khasru was satisfactorily established as the first circumstance in support of the prosecution and witnesses have also satisfactorily proved that the victim travelled with the two accused from their village Noapara to a distant place called Takerhat by bus and got down there at 4-00/4-30 PM on 4-1-79. This is the second circumstance proved against the accused. From this point onward upto the time of recovery of the body of Khairul at about 3-00/3-30 PM on the following day the accused were alleged to have been seen along with the deceased, the third circumstance in the absence of ocular evidence of murder, by PWs 11 and 12. The High Court Division rejected their evidence due to apparent contradiction between their evidence and the statement made by them before the police and also for the reason that their identification of the accused in the TI Parade had lost all significance in view of the fact that they had chance to see the accused. There has been no violation of any norm or procedure in assessing the evidence of the said two witnesses for which the finding of fact made by the High Court Division could be disturbed. The position, therefore, comes to this that the third circumstance, that of, seeing the three boys together near the bank of the river where the victim's body was found was not satisfactorily established. The circumstances of the case can never be said to be conclusive as to the guilt of accused Khasru and his brother Nowab. The High Court Division has correctly applied the rule as to circumstantial evidence in the facts of the present case. State vs Khasru @ Syed Mostafa Hossain 43 DLR (AD) 182.

Section 5-The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in crossexamination by the defence. Samad Sikdar vs State 50 DLR (AD) 24.

Section 5- Mere placing no reliance upon confessional statement of the accused and non- examination of the Magistrate who held TI Parade are no grounds for acquittal where the order of conviction and sentence is based on other sufficient and reliable legal evidence on record. Abdul Hashem vs State 52 DLR (AD) 117.

Section 5- Calling and taking away of the victim by the appellant Billal and co-convict Saiful from his residence half an hour before his murder, recovery of the body of the victim, Billal's offer of love and threat to the PW 2 Mok- seda, and abscondence of Billal immediately after the occurrence are circumstances to lead to the conclusion that he abetted the murder. Billal vs State 52 DLR (AD) 143.

Section 5-It is unfortunate that for not seizing the lungi of PW I the positive testimony of this witness and other witnesses who spoke about the presence of PW 1 in the occurrence have been discarded.

"Evidence false in part is false in entirety" As a matter of fact this maxim is not supported by any authority and has got no relevance in the pre- sent time. Mahmudul Islam alias Ratan vs State 53 DLR (AD) 1.

Section 5-When a wife met with an unnatural death while in custody of the husband and also while in his house the husband is to explain under what cir- cumstance the wife met with her death. Ilias Hussain vs State 54 DLR (AD) 78.

Section 5- Assessment of evidence by the Appellate Division-In the matter of assessment of evidence trial Court's view is given great weight and when its finding is accepted as correct on reassessment by the Appellate Court, then the Appellate Division does not like to interfere. But when in accepting the evidence it is found that established principles of assessment of evidence have not been followed, then the Appellate Court's finding cannot claim sanctity (per Shahabuddin Ahmed CJ concurred by MΗ Rahman and ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253.

Section 5-Appreciation of evidence-if there is contradiction of a substantial kind or a big difference as to time as given by witness and proved by other circumstances, then the time as to the occurrence may become doubtful and the Court can disbelieve the prosecution case. The opinion of the doctor has been so narrowly construed as would betray even ordinary common sense. Considering all aspects of the matter, there has been a manifest disregard of the accepted principles of appreciation of evidence and conse- quently a miscarriage of justice. State vs Abdus Sattar 43 DLR (AD) 44.

Section 5- Chance witness-He is found to be at the place of occurrence by chance or coinci- dence at the time the offence was committed. His evidence need not be rejected outright, but it is to be weighed with caution and may be viewed With suspicion if witnesses are partisan or inimically disposed towards the accused. State vs Md Shafiqul Islam 43 DLR (AD) 92.

Section 5-Wife-killing case-In such a case, there could be no eye-witness of the occurrence, apart from inmates of the house who may refuse to tell the truth. The neighbours may not also come forward to depose. The prosecution is, therefore, necessarily to rely on circumstantial evidence. State vs Md Shafiqul Islam 43 DLR (AD) 92.

Section 5- Evidence of persons falling in the category of interested witnesses must be closely scrutinised. They should not be accepted on their face value. Their evidence cannot be rejected outright simply because they are interested wit- nesses. Nowabul Alam vs State 45 DLR (AD) 140

Section 5-It is well-settled that the prosecution case is never proved by suggestions made by the defence to prosecution witnesses. The Court cannot accept what is favourable to the prosecution and ignore the true purpose of suggesstion: Per Mustafa Kamal J writing the majority Judgment. Nowabul Alam vs State 45 DLR (AD) 140.

Section 5- Demeanour of witnesses-The observation of the demeanour of witness by the trial Court is not dismissed lightly by the Appe- llate Court, unless there are intrinsic weaknesses and blatant contradictions in his evidence. Abdul Hai Sikder vs State 43 DLR (AD) 95.

Section 5-Credibility of witness-Judges of the High Court Division have not considered the material discrepancies, contradictions and omi- ssions of eye-witnesses for which an error has crept in the judgment resulting in the conviction of the appellants. On consideration of the evidence particularly of the eye-witnesses, the appellants are held to be entitled to the benefit of doubt and acquitted. Nurul Islam vs State 43 DLR (AD) 6.

Section 5- Demeanour of witness, apprecia- tion of when a finding of fact is based upon the credibility of evidence involving appreciation of the demeanour of witnesses, the view of the trial Court is entitled to great weight. State vs MM Rafiqul Hyder 45 DLR (AD) 13.

Section 5

The evidence of interested, inter-related and partisan witness

Their evidence must be closely scrutinized before it is accepted. The correct principle in respect of the evidence of persons falling in the category of interested, interrelated and partisan witnesses is that it must be closely and critically scrutinized. It should not be accepted on its face value. Since interested witnesses may have a motive of falsely implicating the accused persons, their evidence has to cross the hurdle of critical appreciation. As their evidence cannot be thrown out mechanically because of their interestedness, so their evidence cannot be accepted mechanically without a critical examination.

The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than a rule of law.

The High Court was obviously wrong in holding that no corroboration was necessary in this case and failed to scrutinise the evidence of interested eye-witnesses with infirmities in their evidence. It is unsafe to rely on such evidence for sustaining a conviction on a capital charge without corroboration, either circumstantial or ocular. (Per. Mustafa Kamal, J delivering the majority judgment)

There is no rule of law that if independent witnesses are not available in a case, a conviction cannot be sustained on the evidence of eye witnesses who are relations and partisan witnesses. If found to be trustworthy, conviction can be based on the evidence of such interested witnesses.

When both the parties are equally powerful and divided in two hostile groups, at the present day no body likes to involve himself in a group rivalry between two strong factions of people. In such a case, it is indeed difficult for the prosecution to examine independent witnesses as the villagers would be reluctant to side with any of the parties who had longstanding enmity and rivalry between them. Furthermore, the witnesses as well as the accused being interrelated amongst themselves and enemically disposed of towards one another, it was difficult for the prosecution to examine independent witnesses. Moreover, it does not appear from the record that any independent witness who had seen the occurrence & was withheld by the prosecution to find fault with it. (Per Latifur Rahman,.J-delivering dissenting judgment) Nowabul Alam and others Vs The State, 15BLD(AD)54

Sections 5, 60

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

Section 8

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

Section 8- Murder charge resting on circumstantial evidence-Accused's motive in calling out and accompanying the victim boy- There is absolutely no material on record to show that anybody had at any stage expressed any sus- picion that the accused might have had any evil motive in calling out the victim. All that the father said at the trial was that the motive for murder was to give him pain. This is no motive. He did not say why the young accused would cause him pain. There is also no material to suggest even that there might have been some immediate and on-the-spot reason for the accused to cause violence to the victim or that they were acting at some others' behest-Per ATM Afzal J with whom Shahabu- ddin Ahmed CJ and MH Rahman J concurred. State vs Khasru @Syed Mostafa Hossain 43 DLR (AD) 182.

Section 8- Motive (by majority): Evidence of motive, when necessary there is no reference at all in the dying declaration to any fact or circumstances for which it can be even remotely inferred that there was any reason whatever for which the appellant was likely to make an attempt on the life of the deceased nor is there any reason for the deceased to suspect the appellant as his possible killer. In a case of this nature based only upon the dying declaration there should have been some evidence of motive although motive may not be proved in case of direct evidence or as an ingredient of the offence. Sk Shamsur Rahman vs State 42 DLR (AD) 200.

Section 8-For lack of motive, the ocular evidence of injured witnesses and other eye- witnesses should not be discarded, specially in view of the fact that their evidence has not at all been shaken in the cross-examination. Ershad Ali Sikder vs State 57 DLR (AD) 75.

Section 8-The Court does not, subscribe to the view of the learned Counsel that for every offence the prosecution must prove the motive if otherwise there is reason to believe as to the guilt of the accused. State vs Kh. Zillul Bari 57 DLR (AD) 129.

Section 8(j)- Prosecution for rape-Ques- tion of corroboration. It has long been a rule of practice for insisting on corroboration of the statement of the prosecutrix. If the Judge feels that without corroboration in a particular case the conviction can be sustained then he should give indication that he had the rule of caution in his mind and then should proceed to give reasons for considering it unnecessary to require corrobo- ration and for considering that it was safe to convict the accused without corroboration. Saidur Rahman Neuton vs State 45 DLR (AD) 66.

Section 8

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

Section 8

It has been held in a number of cases that even an innocent man may feel paniky and may try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-preservation. The fact of absconding is no doubt a relevant piece of evidence to be considered along with other evidence but its value would always depend on circumstances of each case. (Per S.K. Sinha, J minority view). Sree Rabindra Nath Roy @ Rabindra and another -Vs-The State 1 ALR (AD) 189

Section 8

The Evidence Act, 1872

Section 8

The Penal Code, 1860

Section 302

The Code of Criminal Procedure, 1898

Section 35A

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

Section 8

Code of Criminal Procedure

Section 164 and

Section 8 of the Evidence Act:

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

Section 8

Motive is a relevant fact behind a crime:

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

Section 8

Subsequent conduct of any party to a proceeding is relevant if it is in reference to such proceeding or is in reference to any fact in issue therein or relevant thereto. However, such evidence will have to be tested and scrutinized like any other piece of evidence. Criminal intention may be inferred from subsequent conduct of the accused. Md. Zahangir @ Thotkata Zahangir -Vs. The State (Criminal) 23 ALR (AD) 52

Section 8-Normally, there is a motive behind every criminal act that is why the court while examining the complicity of an accused tries to ascertain as to what was the motive on the part of the accused to commit the crime in question. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 9

The idea of holding T.I. parade is to test the veracity of the witness on the question of his capability to identify an unknown person whom he has seen only once:

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

Sections 9 and 157

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

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

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

Section 10

The Evidence Act, 1872

Section 10 and

The Penal Code, 1860

Sections 120B and 302/34

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

Section 10

The Penal Code, 1860

Section 34 r/w

The Evidence Act, 1872

Section 10

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

Section 10

Penal Code, 1860

Section 34:

Evidence Act, 1872

Section 10:

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

Section 10-Bazlu made the confessional statement after his arrest and that too after the alleged criminal conspiracy culminated with the killing of deceased. So, the confessional statement of accused-Bazlu cannot be used as evidence against Mobile Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 10-Section 10 of the Act cannot be so widely construed so as to include a statement made by a person in reference to past acts done in actual course of carrying out conspiracy after it was completed. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 10 -In a case of conspiracy the confession of a co-accused can be used as evidence against other co- accused'

The Appellate Division observed that the language of section 10 is so clear that no further explanation is necessary, that is, fixing the period of conspiracy is important to apply section 10 of the Evidence Act. It is only during the existence of the conspiracy. Narrative of past acts after the conspiracy has been carried out into effect is not relevant. A statement made by one conspirator in the absence of the other with reference to the past acts done in the actual carrying out of the conspiracy after it has been completed, is not admissible under section 10. The words 'common intention' signify a common intention existing at the time when the thing was said, done or written by any one of them. In Bazlur Huda, this court discarded the confessions of Farooque Rahaman, Sultan Shahriar and Mohiuddin (Artillery) observing that those confessions were not relevant fact to prove the charge of conspiracy and then on assessment of the oral evidence found that the prosecution has been able to prove the charge of conspiracy against the accused. The High Court Division wrongly applied the ratio of those cases. Similar views have been taken in Mobile Quader V. State (Criminal Appeal Nos. 22-24 of 2010). In view of the above consistent views expressed by the Privy Council and Supreme Courts of India, Pakistan and Bangladesh, there is hardly any scope to consider the confessions of three accused to prove the charge under section 120B of the Penal Code. Even if the charge under sections 320/120B is failed, there will be no difficulty in maintaining the sentences of the appellants and co-accused on alteration of the charge. Mufti Abdul Hannan Munshi alias Abul Kalam and another -Vs.- The State (Criminal) 19 ALR (AD) 126-141

Section 11

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

Sections 11, 32 and 137

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

Sections 17 to 31-Under the Scheme of the Evidence Act confession is included in the category of 'admission' spelt out in sections 17 to 31. A confession is admissible in evidence because the maker acknowledges a fact in issue to his detriment. The maker acknowledges his/her culpability provided it is true and voluntary. Section 24 is a rule of exclusion, that is to say, if the confession is not voluntary it is not admissible. It must be free from inducement, threat or promise. It must also be free from police influence. Its wording shows that prima-facie a con- fession is to be deemed relevant without formal proof of voluntariness. The ground of reception is the same as that of 'admis- sion'. The language used in this section shows prima-facie that a confession duly recorded as required by law is deemed to be relevant. The expression 'confession' has been defined by Stephen in his 'Digest of the Law of Evidence' that 'A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed the crime. Mufti Abdul Hannan Munshi alias Abul Kalam and another Vs. The State (Criminal) 19 ALR (AD) 126-141

Section 18

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

Section 23

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

Sections 24 and 27

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

Section 24

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

Section 24

The Evidence Act, 1872

Section 24

The Penal Code

Section 302

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

Section 24

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

Section 24-It is only when the statement of the accused can be read as a plenary admission of guilt in clear terms that it can be taken as a confe- ssion of the crime. State vs MM Rafiqul Hyder 45 DLR (AD) 13.

Section 24- Confessional statement-There being no corroboration on any material particular of the confessional statement, it is unsafe to maintain conviction of the respondents under sections 302/34. Penal Code thereon, though respondent Abid Ali implicated himself in the statement to be an offender. State vs Shafique 43 DLR (AD) 203.

Section 27

Provisions of Section 27 of the Evidence Act impose conditions for unwrapping the cover of ban against admissibility of statement of the accused to the Police which are (1) a fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence, (3) he should have been in custody of a Police Officer when he supplied the information, (4) the fact so discovered should have been deposed to by the witness. Md. Zahangir @ Thotkata Zahangir Vs. The State (Criminal) 23 ALR (AD) 52

Section 27

The Penal Code, 1860

Sections 302/34

The Evidence Act

Section 27

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

Section 27

The Arms Act, 1878

Section 19A r/w

Evidence Act [I of 1872]

Section 27

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

Section 27

Since statement under section 27 of the Evidence Act is alleged to be frequently misused by the police, the courts are required to be vigilant about its application:

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

Section 27

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

Section 27

The Evidence Act, 1872

Section 27

Nari-0-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995

Section 10(1)

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

Section 27

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

Section 30-Confession by co-accused-Its worth in the absence of corroboration-A confession made by a co-accused in a joint trial for the same offence affecting himself and others may be taken into consideration. The confession of such an accused may lend assurance to the other evi- dence on record. Babor Ali Molla vs State 44 DLR (AD) 10.

Section 30-Evidence adduced by prose- cution For appreciation of its quality and worth -Broad facts of the case recounted. Appreciation of oral evidence-So-called confession by a co- accused (appellant Daud) relied upon by the trial Court that confession is no confession in the eye of law as it was a testimony against the other accused without the maker having involved him- self. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30-If the principal evidence in the case namely direct oral evidence does not qualify to be trustworthy the alleged confession is of no avail to the prosecution for sustaining the order of conviction. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30-Examination and analysis of oral evidence High Court Division failed to give due and proper consideration to the well established principles governing appreciation of evidence in a case where there is possibility of false implication because of existing dispute and enmity between the parties Where the witne- ssess are related and partisan and have a strong motive to depose falsely, their evidence must be put to the strictest scrutiny having regard to the attendant circumstances. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30-Neither the trial Court nor the High Court Division scanned the evidence in an analytical manner. After all these infirmities on the side of the prosecution the trial Court and the High Court Division should have entertained reasonable doubt as to the alleged participation of the appellants in the throwing of bombs. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30- The extra judicial confession made in Police Station in presence of constables who had arrested the confessing accused and the police officer who had investigated the ease is inadmissible in evidence, Mofazzal Hossain Mollah vs State 45 DLR (AD) 175.

Section 30

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

Section 30

Nari-O-Shishu Nirjaton Daman Ain, 2000

Sections 9(3)/30 and

The Evidence Act

Section 30

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

Section 30

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

Section 30

The Code of Criminal Procedure, 1898

Section 164

The Evidence Act, 1872

Section 30

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

Section 30

The Evidence Act, 1872

Section 30

The Penal Code, 1860

Section 302/34

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

Section 30

Nari-O-Shishu Nirjatan Daman Ain, 2000

Section 9(3)/30 r/w

The Evidence Act, 1872

Section 30

The Penal Code, 1860

Sections 302/ 34

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

Section 30

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

Section 30

The Evidence Act, 1872

Section 30

Nari-O-Shishu Nirjatan Daman Ain, 2000

Section 9(3)

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

Section 30

A confessional statement of a co- accused is only evidence against the maker but the same has no evidentiary value against other co-accused except only to lend assurance to other evidence. A confessional statement of a co-accused is a matter for consideration against another accused if tried jointly with him.

The Appellate Division observed that the confessional statement of a co-accused is admissible against other persons in the sense that it may be taken into consideration against them along with other evidence. But for this section 30, the confessional statement of one accused will be inadmissible in evidence against another accused in view of section 3 of the Evidence Act. The statement of a co- accused does not fall within the definition of evidence as given in section 3 of the Evidence Act. The simple reason is that it is not made on oath; that it is not made in presence of the accused and that its ve- racity is not tested by cross-examination. It is, therefore, a very weak evidence against co-accused if it is regarded as evidence under section 30. Alamgir Hossain. -Vs.- The State. (Criminal) 17 ALR (AD) 1-6

Section 30-Confession of a co-accused cannot be treated as substantive evidence against the other person to find him guilty of the offence charged with and it would require other evidence whether direct or circumstantial linking such a person with the crime, before a confession made by a co-accused can be adverted to in adjudging the guilt of that person. State vs Abdul Kader @Mobile Kader, 67 DLR (AD) 6

Section 30-When more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confes- sion as against such other of such persons as well as against the person who makes such confession. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 30-In view of the other evidence against accused-Mobile Quader, we can very much consider and use the confessional statement of co-accused within the meaning of section 30 of the Act with the other evidence adduced in the case in seeing his link or connection with the killing. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 30-Retraction of a confes- sion has no bearing whatsoever if it was voluntarily made so far the maker is concerned. It is, however, very weak type of a fact like any other fact and it cannot be the basis for conviction of co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 30-If the confessional statement is found true and voluntary, it can form the basis for conviction even if retracted so far the maker is concerned but it cannot be used against co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Sections 31 and 80-An admission is the best evidence that the opponent can rely upon, and though not conclusive is decisive of the matter unless successfully with- drawn or proved erroneous. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 32(1) -The main tests for determining the genuineness of a dying declaration requires three criterions:-

(1) whether intrinsically it rings true,

(II) whether there is no chance of mistake on the part of the dying man in indentifying or naming his assailant and

(III) whether it is free from prompting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case. Rashed-Vs.- The State (Criminal) 16 ALR (AD) 52-58

Section 32(1)-Dying declaration-Its probative value (by majority): A dying declaration although a piece of substantive evidence has always been viewed with some degree of caution as the matter is not liable to cross-examination. It stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and common human experience. When there is a record of such statement of the deceased the Court has to satisfy itself, in the first place, as to the genuineness of the same keeping in view all the evidence and circumstances in which the statement of the deceased was said to have been recorded. The alleged dying declaration, the only piece of evidence against the appellant, having not been free from reasonable doubt, the accused is entitled to the benefit of doubt. Sk Shamsur Rahman vs State 42 DLR (AD) 200.

Section 32(1)-Dying declaration- Statement of a person about the cause of his death or circumstances leading to his death is substan- tive evidence under section 32(1) of the Evidence Act-If found reliable, it may by itself be basis for conviction even without corroboration.

Statement falling under section 32(1) of the Evidence Act is called a "dying declaration" in ordinary parlance-A dying declaration may be recorded by any person who is available and it may be written or it may be verbal or it may be indicated by signs and gestures in answer to questions even-There is no requirement of law that a dying declaration should be recorded by a Magistrate as in the case of the confessional statement of an accused under section 164(3) CrPC. Nurjahan Begum vs State 42 DLR (AD) 130.

Section 32(1) Legislature in its wisdom has put a dying declaration at par with evidence on oath for the simple reason that a man under the apprehension of death is not likely to speak falsehood and involve innocent persons in preference to his assailant.

When a Probationer Officer actually recorded the statement in presence of, and under the observation of the Superior Officer (PW 9), there was hardly any wrong in his Evidence that he recorded it in presence of the witnesses. Nurjahan Begum vs State 42 DLR (AD) 130.

Sections 32(1)- Section 32(1) of the Act has made any statement, written or verbal, of a dead person admissible in evidence when these statements are as regards any facts and circumstances which resulted in his/her death irrespective of the fact whether the person who made those statements was under expectation of death or not at the time of making those statements. Syed Sajjad Mainuddin Hasan @Hasan vs State, 70 DLR (AD) 70

Section 32(1)-Section 32(1) of the Evidence Act has made any statement, written or verbal, of a dead person admissible in evidence when these statements are as regards any facts and circumstances which resulted in his/her death irrespective of the fact whether the person who made those statements was under expectation of death or not at the time of making those statements. In the present case the prosecution's case is that the said bathroom incident led accused Hasan to hatch the con- spiracy to cause rape and murder of the victim Shajneen and resultantly she was raped and murdered. So, to take the evidence of P.Ws.3, 4 and 5 as to this bath- room incident in evidence the prosecution has to prove prove that being enraged by this bathroom incident accused Hasan made conspiracy to cause rape and murder of victim Shajneen and consequently Shaj- neen was raped and murdered.

Syed Sajjad Mainuddin Hasan @ Hasan -Vs.- The State (Criminal) 9 ALR (AD) 189-212

Section 32-Dying declaration

A conviction can be based upon a dy- ing declaration if it is found true, volun- tary and free from being tutored or in- fluenced by others.

The persons who record the dying decla- ration must take care in recording the statement of the declarant/victim. A dying declaration is recorded when the attending doctor suspects that there is little chance of survival of the victim and intimates the near ones about his condition or the inves- tigating officer so that the investigation of- ficer can arrange for recording the dying declaration. If the dying man is capable of making a statement, any person may record his statement in the language of the maker. There is no hard and first rule in recording the such statement. It may be recorded by the investigation officer himself or by the attending doctor or by any relation of the victim. The court can act upon the dying declaration without being recorded by a Magistrate if the statement of the witness who proves the recording is found to be true and voluntary. Tofayel Ahmed @ Josef -Vs.- The State (Criminal) 8 ALR (AD) 45-54

Section 32 read with

Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]

Section 9(2) -The Appellate Division observed that it is evident that when any statement is made by a person as to cause of his death or as to any of the circumstances which resulted in his death, the same is admissible in evidence in a case in which the cause of death of that person comes into question. The expression "any of the circumstances of the transaction which re- sulted in his death" in the clause (1) of sec- tion 32 is wider than the expression "the cause of his death". The words "resulted in his death" do not mean "caused his death". Death may be homicidal or suicidal and, therefore, the word 'death' includes sui- cidal death. So, the statement of a person, who commits suicide, also is admissible under section 32 of the Evidence Act in any proceeding in which the cause of his death comes into question provided the statement relates to the cause of his committing suicide or exhibits circumstances leading to his suicidal death. Uzzal @ Elias Hossain -Vs. The State. (Criminal) 11 ALR (AD) 47-55

Section 32-Non disclosure of the appellant name of the name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it.

The Appellate Division observed that the High Court Division ought to have consi- dered the non-disclosure of the appellant name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it so far the ap- pellant is concerned particularly when there is admitted enmity between the parties. Tofayel Ahmed @ Josef -Vs.- The State (Criminal) 8 ALR (AD) 45-54

Section 32

Dying declaration–

A conviction can be based upon a dying declaration if it is found true, voluntary and free from being tutored or influenced by others.

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

Section 32

Non disclosure of the appellant name of the name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it–

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

Section 32(1)

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

Section 32(1)

Evidence Act 1872,

Section 32(1) read with

Section 162(2) of Code of Criminal Procedure, 1898

Whether a dying declaration recorded by an Investigating Officer is admissible in evidence:

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

Section 32(1)

Dying declaration,

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

Section 32(1)

Dying declaration–

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

Sections 32, 33

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

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

Section 45-Medical evidence is only corro- borative in nature-Ocular evidence of the eye- witness which substantially corroborates the major injuries on the person of the deceased must be accepted. Abdul Quddus vs State 43 DLR (AD) 234.

Section 45-The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint, expert. State vs Raihan Ali Khandker 50 DLR (AD) 23.

Sections 45 & 73- The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

Section 45-The findings made in the impugned judgment and also in the case of Mohiuddin Khan Alamgir [15 BLC 107, Para 97] shall be deemed to have been modified in respect of the assessment made by the PWD officials in that the assessment of valuation of any property made by PWD officials shall have evidentiary value when no such assessment is made and accepted as correct by another independent department of the Government authorized in that behalf. State vs Faisal Morshed Khan, 66 DLR (AD) 236

Section 45-There may be a situation when there is no assessment of valuation by any competent authority of the Government exercising power in that behalf and in such a case, the Anti- Corruption Commission has no other option but to take the assistance of the PWD officials in making assessment of the valuation of any property. Therefore, it cannot be said that the assessment of valuation made by the PWD officials does not have any evidentiary value in all situations. State vs Faisal Morshed Khan 66 DLR (AD) 236

Section 57

Courts can take judicial notice of the ordinary course of events–

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

Section 57

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

Sections 57 & 60

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

Sections 57 & 60-The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Section 57, 81, 78(2)

The Court may take judicial notice under Section 57 of the Evidence Act certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary.

A report in a news paper or magazine is only hearsay evidence. It is not one of the documents referred to in section 78(2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuiness attached under section 81 to a magazine report cannot be treated as proof the facts reported therein. (Per S. K. Sinha, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State (Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386] 

Sections 60, 5

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

Sections 63-If a true copy of a document is proved by the maker on oath giving explanation that the original is missing from the record, it satisfies the requirement of secondary evidence within the meaning of section 63 of the Act. Where secondary evidence of the contents of a document alleged to have been destroyed/ untraceable is admitted by the court of first instance without objection, even without any foundation for the reception of secondary evidence having been laid down, the opponent is estopped from taking any objection to the admissibility of such documentary evidence in the appellate Court. Even oral evidence of the contents of the original document can be proved when the original is admitted to have been lost. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Section 65(c)-Where a party can show that non-production was not due to his own default or neglect, secondary evidence would be admissible under this clause to adduce secondary evidence. It is not enough to show that the party who wants to use it cannot produce it because it was not registered. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 66-A confession made by an accused in connection with another case is found to be relevant in connection with other case and if the offences committed in course of the same transaction and if the confession has been duly recorded in accordance with law. Secondary evidence after fulfillment of the requirements of section 66 may be adduced to prove the confession and if the person making the confession is accused in both or all the incidents of commission of offences. Mufti Abdul Hannan Munshi @ Abul Kalam vs State, 69 DLR (AD) 490

Sections 67 and 68

The prosecution did not produce the scribe and the witnesses. No explanation has been given by the prosecution for withholding the scribe of exhibit (Ka), which is the sheet anchor of the case to prove the charges. The compromise petition has been reproduced in the judgment of the High Court Division and on perusal of the same, we find nothing therein that the accused persons have admitted their involvement in the incident. Therefore, this compromise petition has not improved the prosecution case in any manner. Thus the prosecution has miserably failed to prove the charges against the appellants by adducing legal evidence to connect them in the incident. The Tribunal as well as the High Court Divison has totally overlooked this aspect of the matter and convicted the appellants on hypothesis. (Per S.K. Sinha, J minority view). Sree Rabindra Nath Roy @ Rabindra and another -Vs- The State 1 ALR (AD)189

Sections 73 & 45-The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

Section-78(6)

Duplicate copy of the Certificate– The authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan–

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

Section 80

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

Section 80-Omnia Praesumuntur rite et solemniter esse acta donee probetur in contrarium, which means all things are presumed to have been done regularly and with due formality until contrary is proved (Ballentine's Law Dictionary). When a deposition or confession is taken by a public servant, there is a degree of sanctity and solemnity which affords a sufficient guarantee for the presumption that everything was formally, correctly and duly done. The presumption to be raised under this section which deals with depositions or confessions of offenders is considerably wider than those under section 79, which provides about presumptions so as to genuineness of certificates, certified copies and certified by other documents, that is to say, where a person acts in an official capacity, it shall be presumed that he was duly appointed and it has been applied to a great variety of officers. The presumption embraced not only the genuineness of the confession but also that it was duly taken and given under the circumstances recorded therein. It deals not only with relevancy but also with proof, if it was recorded in accordance with law. On the strength of these presumptions it dispenses with the necessity of formal proof by direct evidence what it would otherwise be necessary to prove. Mufti Abdul Hannan Munshi alias Abul Kalam and another -Vs.- The State (Criminal) 19 ALR (AD) 126-141

Section 80-It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer vs State 46 DLR 212.

Section 80- Presumption as to confession- Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the acts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to There must not be any reason for doubt as to the truth of he statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD) 186.

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

Section 101

Prosecution must prove the charge against an accused beyond any shadow of reasonable doubt– In a criminal case the prosecution must prove the charge brought against an accused beyond any shadow of reasonable doubt. Criminal cases are not like civil cases. In criminal case the accused may only take the plea of not guilty and the burden is entirely upon the prosecution to prove its case. Cross-examination is not also necessary on the entire deposition of a witness as it may damage the defence case. Non-cross-examination on a certain fact would not make the deposition of a witness on that point admitted facts. (Minority View), (Per Madam Justice Zinnat Ara). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, (Criminal), 2020 [9 LM (AD) 593] 

Section 102

The Negotiable Instruments Act, 1881

Section 138, 140

The Evidence Act, 1872

Section 102

According to section 102 of the Evidence Act, 1872 the burden of proof is upon the respondent to prove that though she was the director of the company, the offence has been committed without her knowledge or that she was a non-executive director of the company and she was not involved in day-to-day affairs of the company etc.

The innocence of the respondent No.1, the director, has to be proved before the Court by adducing evidence and thus, the director, respondent No.1 has to face the trial. Only after taking evidence during trial if the director, respondent No.1 herein, is found that she was not to be a person-in-charge of the affairs of the company at the relevant time of the issuance of the cheque only then she may be exonerated from the charge. ...Phoenix Finance and Investment Ltd. =VS= Yeasmin Ahmed, [10 LM (AD) 522] 

Sections 103 & 106- Burden of proving alibi in wife-killing case-It is true that the burden of proving a plea of alibi or any other plea specifically set up by an accused-husband for absolving him of criminal liability lies on him. But this burden is somewhat lighter than that of the prosecution. The accused could be considered to have discharged his burden if he succeeds in creating a reasonable belief in the existence of circumstances that would absolve him of criminal liability, but the prosecution is to discharge its burden by establishing the guilt of the accused. An accused's burden is lighter, because the court is to consider his plea only after, and not before, the prosecution leads evidence for sustaining a conviction. When the prosecution failed to prove that the husband was in his house where his wife was murdered, he cannot be saddled with any onus to prove his innocence. State vs Mafuzzal Hossain Pramanik 43 DLR (AD) 64A.

Section 105

The Penal Code, 1860

Section 84

The Evidence Act, 1872

Section 105

Accused respondent was of unsound mind from 22.6.1999 i.e. 8(eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused-respondent, at the time of commission of the offence on 13.10.1998– On scrutinizing the materials on record, specifically the Medical reports (Exhibits-A,B,C and D), submitted by the DWs we have already found that the defence has been able to prove that the accused respondent was of unsound mind from 22.6.1999 i.e. 8(eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused-respondent, at the time of commission of the offence on 13.10.1998, as required under section 84 of the Penal Code and section 105 of the Evidence Act by providing sufficient evidence, he cannot get any benefit under section 84 of the Penal Code nor under Chapter XXXIV of the Criminal Procedure Code. Plea of insanity or of unsoundness of mind of the accused-respondent being not prima facie found, the Court is not obligated to take recourse to the provisions as laid down in Chapter XXXIV of the Criminal Procedure Code.

The impugned judgment and order of acquittal passed by the High Court Division is hereby set aside and the judgment and order of conviction and sentence passed by the trial court is hereby affirmed. ...State =VS= Abu Hanifa @ Hanif Uddin, (Criminal), 2020 [9 LM (AD) 262] 

Section 105-When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him and the court shall presume the absence of such circumstances.

Practically, in a locality if a person is of unsound mind and remains so for a period of 7/8 years people residing nearby would be aware of his mental condition.

The Appellate Division held that it appears that PWs. 2, 4, 6 and 8 stated that the accused was a person of unsound mind. Although, PW. 7 also stated that the accused-respondent was of unsound mind but he did not clarify whether he was of unsound mind at the time of occurrence. PW-2 stated that the accused was of unsound mind for about 7/8 years but she could not say that he was of unsound mind at the time of occurrence. PWs. 3 and 5 stated that they do not know whether at the time of occurrence the accused was of unsound mind. The house of PWs. 3, 5 and 7 are located within 100, 50/60 and 200/300 yards respectively but only PW.7 stated that he knew accused-respondent was of unsound mind whereas PWs. 3 and 5 stated that they did not know whether the accused was of unsound mind. Practically, in a locality if a person is of unsound mind and remains so for a period of 7/8 years people residing nearby would be aware of his mental condition. So in this case if the accused-respondent would have been ac- tually a man of unsound mind then all the PWs residing nearby would know the same and would specifically mention the duration or length of unsoundness of mind. State -Vs. Abu Hanifa @ Hanif Uddin son of Md. Musa Ali, Village- Barak, PS- Haluaghat, District Mymensing. (Criminal) 18 ALR (AD) 47-54

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

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

Section 106-In the absence of evidence as to the presence of the condemned-petitioner in the occurrence house with his family the condemned- petitioner cannot be taken to be liable to prove the fact as to how his wife and 3(three) year old daughter met their death. Mukter Hossain Khan vs State 60 DLR (AD) 44.

Section 106-Normally, there is no burden on the accused to offer the reason of death of a person for which he is tried. But when the deceased is living with the accused in the same house he is to explain how the death occurred. State vs Khandker Zillul Bari 57 DLR (AD) 129.

Section 106

Code of Criminal Procedure, 1898

Section 35A

Penal Code, 1860

Section 302

Evidence Act, 1872

Section 106

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

Section106

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

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

Section 106 read with

Penal Code (XLV of 1860) 

Section 302-Conviction of an accused can be based on circumstantial evidence alone. 

Appellate Division held that under the provisions of section 106 of the Evidence Act the husband has a special duty to explain what happened to his wife in the space of time when he was last seen with her and the time when her dead body was discovered since the victim was in his custody. It is the husband who is deemed to have special knowledge about the whereabouts of his wife and what happened to her in that interim period. The burden of proof is squarely on the husband to prove how his wife met her death. Shafiqul Islam @ Shafi-Vs.-The State 6 ALR (AD) 2015 (2)261

Evidence Act [I of 1872]

Section 106

The Appellate Division does not find any reason whatsoever to discard the findings of the learned Judge of the trial Court in this respect. Consequently, the Appellate Division agrees with the trial Court in holding that the petitioner having no explanation to discharge the onus as contemplated under section 106 of the Evidence Act, he was definitely involved in committing the murder. [31 ALR (AD) (2024) 18]

Section 106

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

Section 106

Evidence Act 1872,

Section 106 and

Nari-O-Shishu Nirjatan Daman Ain 2000,

Section 11(Ka)

Plea of alibi in a wife killing case:

In a wife killing case, it is always presumed that the husband was with the deceased wife at the time of occurrence unless any plea of alibi is set up by the defence. In that case, the burden of proving such plea rests on the husband in order to absolve him of any criminal liability. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 

Section 106

The burden to prove the plea of alibi is heavy on the accused and the plea of alibi cannot be proved by preponderance of probabilities:

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

 

Section 106

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

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

Section 106-No independent witness was examined by the Investigating Officer nor cited as witness in this case, thus creating doubt.

The Appellate Division finds that it is true that a case where section 106 of the Evidence Act is applicable, i.e. when the victim was last seen with the alleged ac- cused, the accused has a duty to explain how the victim died. However, in the in- stant case there is no independent corro- borative witness with regard to the de- ceased being in the company of the accused in spite of the fact that the houses of the victim's father and that of her husband are near to each other and they are surrounded by many other houses of persons who would be independent witnesses, but no independent witness was cited in the charge sheet or examined by the prosecution in support of the prosecution case. Moreover, the allegation of the victim having been killed by her husband on account of non- payment of dowry is belied by the fact that the victim was apparently killed after hav- ing been gang raped as indicted in the post mortem report and supported by the inquest report. The defence suggestion that the victim went out of her father's house to watch a show at the local school or that she may have been taken out of her father's house and raped and killed thereafter can- not be overlooked in view of the finding of the post mortem examination that the vic- tim was gang raped. The fact of the victim having been gang raped is not commensu- rate with the prosecution claim that the ac- cused, being the husband, killed his wife for dowry. The Appellate Division also note from the cross examination of P.W. 3 Md. Mofazzel Hossain, who is a brother of the informant that he stated ""আমার মেয়েকে অজ্ঞাত লোকে ধর্ষণ করে মারিয়াছে আমি বলতে পারিব না।" (emphasis added) which is clearly pre- varication, particularly in view of the fact that the post mortem examination report clearly indicates gang rape prior to murder. Accordingly, the criminal petition for leave to appeal is dismissed.

তদন্তে প্রমাণ সাপেক্ষে বাদীকে সর্বশেষ অভিযুক্ত আসামীর সাথে দেখা যায়। অভিযুক্ত আসামীর দায়িত্ব এটা ব্যাখ্যা করা কীভাবে ভিকটিম মারা গেল। সর্বোপরি বোঝা যাচ্ছে যৌতুক না দেবার কারণে গণধর্ষণের পর তার স্বামী দ্বারা খুন হয়েছে। পোষ্ট মর্টেম রিপোর্ট এবং অন্যান্য পরীক্ষা দ্বারা বোঝা যায়। বিবাদীর বক্তব্য হত্যার শিকার মহিলা তার বাবার বাড়ী গিয়েছিল স্থানীয় স্কুলে একটি অনুষ্ঠান দেখতে অথবা অথবা বাবার বাড়ীতে গিয়ে বাইরে বের হলে তাকে তুলে নিয়ে ধর্ষণ শেষে হত্যা করে। পোষ্ট মোর্টেম রিপোর্ট অনুযায়ী এটা লুকানোর কোন সুযোগ নেই। রাষ্ট্র পক্ষের আনীত অভিযোগ যে এটা স্বামী কর্তৃক যৌতুক না পাওয়ার কারণে তার স্ত্রীকে হত্যা করা হয়েছে এ বিষয়ে কোন সন্দেহ নেই। আপিল বিভাগ এটাও লক্ষ্য করেছে বিভিন্ন পরীক্ষার মাধ্যমে সাক্ষী ও জেরায় ৩ নং সাক্ষী মোঃ মোফাজ্জেল হোসাইন সে নিশ্চিত নির্দিষ্ট ঘটনার বর্ণনা করেছেন। ঘটনার পোষ্ট মোর্টেম রিপোর্ট পরিষ্কারভাবে নির্দেশ করছে যে মৃত্যুর আগে Victim গণধর্ষিত হয়েছে। ফলে লিভ টু আপীলে রাষ্ট্র পক্ষের আবেদন খারিজ। The State Vs. Md. Akinur Rahman (Criminal) 7 ALR (AD) 32

Section 108

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

Section 114 (g)

There is no doubt that it is not only the rule of law to examine a material witness to lend corroboration of a material fact but also that for such withholding the court may cast a serious reflection of the fairness of the trial. If it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference. Rashed Kabir alias Roman Vs. The State (Criminal) 22 ALR (AD) 54

Section 114(g) -In a case of circumstantial evidence no presumption can be drawn unless the circumstances proved are completely incompatible with the innocence of the accused.

The Appellate Division observed that if motive is a circumstance put forward in a criminal case, it must like any other incriminating circumstance be fully established. The prosecution has totally failed to prove the motive. Therefore, it failed to establish any additional support to the complicity of the appellants in the killing of the victim. The absence of motive is also a circumstance which is relevant for assessing the evidence. The circumstances proving the guilt of the appellants are, however, not weakened at all by the fact that the motive has not been established. It is only if the appellants know the fact of rape and killing in that case only, these facts can be taken as additional link. The High Court Division has totally ignored those aspects of the matter and illegally found the accused guilty. The appeals are allowed and the petitions are dismissed. The judgment of the High Court Division is set aside. M.A. Kader -Vs.- The State (Criminal) 9 ALR (AD) 57-74

Section 114 (g)-See also reported in Amzed Hossain Dulal. Vs. The State (Criminal) 9 ALR (AD) 216-219

Section 114(g)- The prosecution ought to gave examined the investigating officer as a witness to dispel the mystery around the two charge-sheets on the self-same occurrence, although for non-examination of investigating officer prosecution case will not fail in every case. Abdus Sobahan Howlader vs State 45 DLR (AD) 134.

Section 114(g)-Benefit of doubt-High Court Division has committed fundamental error in giving the accused the benefit of doubt despite the fact that the prosecution has been able to prove the charge beyond shadow of doubt. State vs Keramat Ali 63 DLR (AD) 102.

Section 118-Even a child witness can be relied on if he/she is capable of understanding and replying to the question intelligently. Abdul Quddus vs State 43 DLR (AD) 234.

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

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

Section 134- The accused persons did not deny the occurrence but they denied their participation. Apart from PW 2 and PW 7 there are independent eye-witnesses like PW 6 who appeared at the scene immediately after the occurrence and PW 8 who deposed and corrobo- rated the informant. In the case of Khoka vs State reported in 4 BLC (AD) 86 this Division held that believing only one eye-witness conviction is legally permissible and conviction can be based on the sole evidence of only one witness. Zakir Hossain vs State 61 DLR (AD) 70.

Section 134-Number of witnesses- Conviction of the appellants can safely be based on the solitary evidence of the eye-witness PW 1. His evidence is full, complete and self-contained. It may not have received corroboration from other witnesses, but it stands fully corroborated by the circumstances of the case and the medical evidence on record. Its fullness and completeness are enough to justify the conviction. Abdul Hai Sikder vs State 43 DLR (AD) 95.

Section 134- The testimony of the solitary eye-witness could not be shaken in any manner by the defence in cross-examination for which it is difficult to disbelieve her testimony as she narrated the prosecution case in details. Abdul Quddus vs State 43 DLR (AD) 234.

Section 137-Statements elicited from a witness in cross-examination are a very important part of evidence before a Court Before drawing any inference from the testimony of a witness, the Court must consider the statements made in the examination-in-chief and those made in cross- examination by putting them in juxtaposition and see whether that witness has stood the test. Wajear Rahman Moral vs State 43 DLR (AD) 25.

Section 137-Contention as to facts- The defence cannot make an ingenuous argument that the prosecution story cannot be believed as they did not mention about the connecting doors in between the rooms as the defence did not put any suggestion as to non-existence of the same. Abdul Quddus vs State 43 DLR (AD) 234.

Section 137-Objection to the manner of cross-examination put to PWs 2 and 3 in a lump and similarly to the IO PW 9-Objection rightly taken when there was no such statement in the examination-in-chief of the witness. Taleb Ali vs State 40 DLR (AD) 240.

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

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

Sections 145 and 157

An FIR is not a substantive evidence in a case but it may be used either under section 145 to contradict the testimony given by the informant in court, or under section 157 to corroborate the testimony. The allegation in the FIR cannot be used to corroborate or contradict the evidence of the witnesses other than the informant. So, there is no earthly reason to disbelieve him. Rashed Kabir alias Roman Vs. The State (Criminal) 22 ALR (AD) 54

Section 145

The Appellate Division held that defence, by cross-examining the witnesses, could not make their testimonies as to the inflicting of blow by Shah Alam with ram dao on the deceased shaky. The defence did not even try to point out any contradiction in their testimonies within the meaning of section 145 of the Evidence Act by cross-examining the Investigation Officer on the question of inflicting ram dao blow by Shah Alam the High Court Division also failed to consider that the injury caused by Shah Alam upon the deceased with ram dao was clearly borne out from the post- mortem report. Therefore, Appellate Division found that accused Shah Alam committed an offence under section 307 of the Penal Code and he is liable to be punished accordingly. The State Vs. Abul Basher Tipu 3 ALR(2014)(1)(AD) 211

Section 154-Hostile witness a witness has gone back upon his previous statement and given in court evidence which is inconsistent with that statement does not make the witness hostile.

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

Section 154-Evidence of the witness, who has been declared hostile, would ipso facto not be of any worth for the prosecution, rather if on consideration of the evidence of such kind of witness it is found that evidence on record either has established the case of the prosecution or that prosecution case does not stand scrutiny then whatever order in any respect is made by the Court the same is very much sustainable in law. Mobarak Hossain alias Mobarak vs State 56 DLR (AD) 26.

Section 154- Hostile witness (by minority): The evidence of the two hostile witnesses cannot be rejected in whole or in part but the whole of the evidence so far as it affects both sides must be taken into consideration. Sk Shamsur Rahman vs State 42 DLR (AD) 200.

Section 154- Hostile witness-A witness is not necessarily hostile if he reveals the truth. Established practice, now forming a rule of law, regarding the evidence of a hostile witness is that the whole of his evidence so far as it affects both the parties, favourably or unfavourably, must be considered and the Court which gets the opportunity to observe his demeanour is at liberty to make assessment of the evidence. If corroboration from other sources is available to the evidence of hostile witness, there is no reason why his evidence shall be rejected outright. If the evidence of the hostile witness fits in with the attending circumstances, then it may be accepted and considered along with other evidence. Siddique Munshi vs State 44 DLR (AD) 169.

Sections 154 & 155-Evidence by eye- witness Vital omission in FIR and statement to the Investigation Officer make their substantive evidence unreliable. Babor Ali Molla vs State 44 DLR (AD) 10.

Section 155-The prosecution witnesses having not been declared hostile their evidence cannot be discarded only because they are favour- able to the accused. State vs MM Rafiqul Hyder 45 DLR (AD) 13.

Section 157-Previous statement, use of The statement of a witness made under section 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in Court (Per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253.

Section 157

The statement of a fact is required to be made at once or at least shortly after the event when a reasonable opportunity for making it present itself, this is not the mandatory requirement of the rule of law. What is reasonable time is a question of fact in each given case. No hard and fast rule can be laid down for it. The words 'at or about the time when the fact took place' used in the section means as early as can reasonably be expected in the circumstances of the case. Even if such statement is made within a reasonable proximity of time still such statement can be used for corroboration. The legislature would not have intended to limit the time factor to close proximity. Rashed Kabir alias Roman -Vs.- The State (Criminal) 22 ALR (AD) 54

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

Section 157 -The court is bound to reject the statements of those witnesses who did not furnish the complicity of the accused person 'at or about the time' of the occurrence. The discloser must be at once or at least shortly after the event when a reasonable opportunity of mak- ing it present itself.

The Appellate Division observed that the High Court Division failed to apply its judicial mind as section 157 of the Evi- dence Act provides an exception to the general rule excluding hearsay evidence and in order to bring a statement within the exception, the duty cast on the prosecution to establish by clear and unequivocal evi- dence the proximity of time between the taking place of the fact and making a sta- tutory statement before the investigation officer. The expression 'at or about the time' when the fact took place should be understood in the context according to the facts and circumstances of each case but this does not mean that in every case if the investigation officer recklessly or inten- tionally or for any other reason did not ex- amine the witnesses, the delay will be con- doned without any plausible explanation. 

The court is bound to reject the statements of those witnesses who did not furnish the complicity of the accused person 'at or about the time' of the occurrence. The dis- closer must be at once or at least shortly after the event when a reasonable opportu- nity of making it present itself. M.A. Kader Vs. The State (Criminal) 9 ALR (AD) 57-74

Section 162-When the witness de- parture from the original version, it is very difficult to rely on his/her as a trustworthy witness.

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