Nari-o-Shishu Nirjatan Daman Ain, 2000 | AD Cases | Case Reference

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

Sections 2(Ka), 5, 7 and 30-No doubt that the act of the appellants attracts the definition of 'অপহরণ' defined in section 2(Kha) of the Ain, and therefore, they have committed an offence punishable under section 7 of the Ain. Besides, section 30 of the Ain relates to the abetment or instigate the offence punishable under the Ain. The conjunction 'or' has been used before the expression 'অপরাধটি সংঘটনেরর চেষ্টা করা'. This use of conjunction 'or' before the said expression 'অপরাধটি সংঘটনের চেষ্টা করা' makes it clear that the said expression is used in disjunctive. Therefore, the appellants Md Shahin and Ariful Islam Asha had abetted the offence of abduction. (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Sections 2(Ka) and 7-After school hours, Trisha was going home, but was prevented by the appellants from going there and she had to go to Khapara lane because of the chase led by the appellants and thus, she was compelled to go from one place to other within the meaning of section 2(Kha) of the Ain and chasing definitely involved the element of threat within the meaning of definition of "অপহরণ". The appellants committed the offence under section 7 of the Ain. High Court Division suffered from the intuition that "কোন স্থান হইতে কোন ব্যক্তিকে অন্যত্র যাইতে বাধ্য করা" must be a far place. High Court Division was obsessed with the definition of abduction as given in section 362 of the Penal Code in coming to the finding that there had been no abduction, but there was an attempt to abduct. (PER MD ABDUL WAHHAB MIAH J, MAJORITY). Mehedi Hasan @Modern (Md) vs State, 66 DLR (AD) 111

Nari-O-Shishu Nirjatan Daman Ain, 2000;

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

sections 4 and 10

The law is well settled that there must be some circumstances of a compelling nature together with prolonged custody which would merit consideration for commutation. ...Anowar Talukder Vs. The State, (Criminal), 17 SCOB [2023] AD 69 

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

sections 4 and 10

The condemned prisoner has been languishing with the agony of death in the condemned cell for almost 18 years not due to any fault of his own. That being the situation, the fact of prolonged incarceration together with the discussion that we made above fortified with the recently passed decision of this Division can be considered as a mitigating circumstances and for that reason we are inclined to modify the order of sentence and commute the sentence of death to that of imprisonment for life. ...Anowar Talukder Vs. The State, (Criminal), 17 SCOB [2023] AD 69

Section 7-There is no doubt that the accused have committed a heinous offence. However, where any special law gives specific benefit to an accused, then he deserves to be treated in accordance with such beneficial provisions. Under the second proviso to section 51, an accused found guilty of any offence, even one carrying the sentence of death or life imprisonment, may be sentenced in exceptional circumstances to imprisonment for a maximum period of ten years. Even upon conviction under section 7 of the Ain, accused Asha may not be sentenced to 14 years in prison. The sentence that may be lawfully imposed is a maximum of ten years' imprisonment. (PER MUHAMMAD IMMAN ALI J, MINORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Section 7-In order to do complete justice, we invoke our power under article 104 of the Constitution and dispose of the appeal finally without sending the case back on remand for trial afresh by the concerned Tribunal, under the Ain, 2000. (PER MD ABDUL WAHHAB MIAH J, MAJORITY) Mehedi Hasan @Modern (Md) vs State, 66 DLR (AD) 111

Section 7-Crime against humanity- There is no doubt that the trial is without jurisdiction but, by the same time, it cannot be ignored that the act committed by the appellants is barbarous one. Their act shakes the conscience of the people at large. The act of the accused is not only a crime against humanity but also barbaric. (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111

Sections 7 and 9(3)

The High Court Division absolute the Rule and acquitted the accused the state filed leave petition, the Appellate Division observed that the victim, as informant, lodged the First Information Report naming the accused respondent as one of the perpetrators involved in abducting and raping her. She maintained her story of abduction and rape in her deposition before the Court. The trial Court upon assessment of the evidence convicted and sentenced the respondent along with others, although the trial took place in the absence of all the accused persons, the case is remanded to the trial Court so far as it relates to accused respondent Robin with the direction to allow the accused to cross-examine the witnesses, if he so desires and to conclude the trial in accordance with law. The accused respondent Robin be enlarged on bail to the satisfaction of the trial Court till conclusion of the trial. The State-Vs.-Robin. 4 ALR (AD) 2014 (2) 168

Sections 7,9(1) and 30- The victim declined to be examined medically she admitted in her cross-examination that she met and talked to the inmates of the house including a sister of the accused and her husband as well as other persons who visited the house. When she was taken to another village, she stated that people asked her questions. There is no mention that she complained to them about her abduction or rape. The informant alleged to have narrated the occurrence first of all to one Rokeya. Begum, a neighbour who was not examined by the prosecution in the absence of any reason for not calling her as a witness a negative inference can drawn against the prosecution for not examining her. The State -Vs. Md. Palash 5 ALR (AD)2015(1) 84

Sections 7/30

Ad-interim anticipatory bail– Section 498 of the Code of Criminal Procedure for anticipatory bail before the High Court Division. After hearing the parties by the impugned order dated 22.04.2014 the High Court Division granted ad-interim anticipatory bail to the accused respondents. The Chief Judicial Magistrate, Sylhet is directed to secure appearance of the accused-respondents, namely (1) Ali Amzad, son of Abdul Mannan @ Monoi Miah of village Shirajpara, (2) Md. Nazim Uddin, son of late Ibrahim Ali of village Rarai, (3) Abdul Mannan and (4) Moinul Islam, both sons of late Junab Ali of No. 6 Sultanpur Union, all of Police Station-Jokigonj, District-Sylhet in connection with Criminal petition for leave to appeal No. 273 of 2014 filed against the order dated 22.4.2014 passed by the High Court Division in Criminal Miscellaneous Case No. 18030 of 2014 corresponding to G.R. No. 40 of 2014 arising out of Jokigonj Police Station Case No. 07 dated 10.03.2014 in the Court of Chief Judicial Magistrate, Sylhet immediately and enlarge them on bail to his own satisfaction. .....DC, Sylhet =VS= Md. Shahjahan, (Criminal), 2017 (2)– [3 LM (AD) 547] 

Section 7/9(3) r/w

Penal Code, 1860

Sections 363/376/302/201/34

The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment– In the instant case the appellants committed rape upon a defenseless innocent college student and brutally murdered her in her way to college. The atrocity committed by them as evident from their confessional statements is extremely shocking and that reflects such mental depravity of the appellants that they deserve no other punishment than death in order to meet the society’s cry for justice. .....Nur Alam Howlader @Pachu @Sumon @Nurul Alam =VS= State, (Criminal), 2022(2) [13 LM (AD) 395] 

Sections 8/30 r/w

The Penal Code, 1860

Sections 302/201/34

The Code of Criminal Procedure, 1898

Section 35A

Where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death– All the appeals are dismissed with modification of sentence. The sentence of death of the appellants, namely, Noor Mohammad alias Kalu alias Kalu Chor alias Kalu Dakat, son of Montaz Ali Momtaz Ali, of Village-Kutipara, Salanga, Police Station-Salanga, District-Sirajgonj (in Criminal Appeal No.4 of 2013); Md. Ershad Ali @ Ershad, son of Md. Yousuf Ali Mondal and Abul Kalam @ Kalam, son of late Kuddus Ali, both of Village-Bormohoni Dhakhinpara, Police Station-Salanga, District-Sirajgonj (in Jail Appeal No.9(a) of 2021); and Md. Md. Ashraful Islam @Kana Rintu@Mintu, son of Md. Sohorab Ali Mondal, of Village-Bormohoni Dhakhinpara, Police Station-Salanga, District-Sirajgonj (in Jail Appeal No.14 of 2021) is commuted to imprisonment for life and also to pay a fine of Tk.20,000.00(twenty thousand) each, in default, to suffer rigorous imprisonment for 6(six) months more. However, they will get the benefit of section 35A of the Code of Criminal Procedure in calculation of their sentence and other remission as admissible under the Jail Code. .....Noor Mohammad @Kalu @Kalu Chor @Kalo Dakat =VS= The State, (Criminal), 2022(1) [12 LM (AD) 401] 

Sections 9(1) and 30

Granting bail to the accused- respondent for a period of 6 (six) months during pendency of the appeal.

The Appellate Division finds that the High Court Division was not justified at all to grant this accused-respondent bail during pendency of the appeal. In the circumstances the Appellate Division set aside the impugned order of the High Court Division granting bail to the accused- respondent. The High Court Division will dispose of the Criminal Appeal No. 4236 of 2006 expeditiously. This criminal petition for leave to appeal is accordingly disposed of. The State -Vs.- Hafej Bakaul (Criminal) 21 ALR (AD) 55-56

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 9(2) - Victim was gang-raped

The Appellate Division finds no reason why the victim Mahima would falsely im- plicate these four accused persons letting the real rapists escape. Victim was gang- raped and immediate after that occurrence of gang-rape she disclosed the names of these accused persons as rapists to her near relations. The Appellate Division find no reason not to believe these statements of the victim Mahima as true. Uzzal @ Elias Hossain -Vs. The State. (Criminal) 11 ALR (AD) 47-55

Section 9(2)-Charge framing date is the relevant date for considering the age of the accused under the Children Act, 1974

The Appellate Division has given our anxious thought to the age of the victim who was 20 years old at the time of the oc- currence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. The Appel- late Division is inclined to commute the sentence of death to one of imprisonment of life. Accordingly, the criminal appeal is dismissed and the sentence of death is modified to one of imprisonment for life. Manik-Vs. The State (Criminal) 8 ALR (AD) 59-65

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] 

Section 9(3)- Reducing the sentence from death to imprisonment.

The Appellate Division affirmed that the High Court Division considering tender age of the respondents, the facts that the res- pondents were in death cell for a long pe- riod and other circumstances, reduced the sentence from death to imprisonment for life. The State -Vs. Noor Islam and others (Criminal) 8 ALR (AD) 196-197

Section 9Ka read with Cr. PC Section 561A-Uttering of abusive language will not amount to pro-voca- tion to commit suicide and does not con- stitute abetement unless something more is done in pursuance of the said utter- ance of abuses.

The Appellate Division held that prima- facie uttering of abusive language do not disclose an offence under section 9Ka of the Ain and therefore the accused appellant ought not to be tried upon the charge, Ac- cordingly, we find merit in the appeal. Thus theappeal is allowed.

Dr. A.P.M. Sohrabu-zzaman -Vs. The State, represented by the Deputy Com- missioner, Dhaka (Criminal) 12 ALR (AD) 38-44

Section 9(3)/30 read with Code of Criminal Procedure [V of 1898]

Sections 161, 164 and 364- When the voluntary character of the confession and truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. A confession may form the legal basis of conviction if the court is satisfied that it was true and was voluntarily made.

Since confessional statement of the co- accused is not admissible against the accused Sujon and there was no other substantive evidence to connect him with the occurrence, the Appellate Division is of the view that the learned Courts below committed an error of law in convicting accused Sujon.

The Appellate Division observed that 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, the Appellate Division does not find any mitigating circumstances to commute the sentence. Aziz @ Azizul @ Azid -Vs. The State (Criminal) 23 ALR (AD) 05

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

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 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 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 9(3)

The Code of Criminal Procedure, 1898

Section 342

The case is remanded to the trial Court for giving an opportunity to the respondent to cross-examine the prosecution witnesses– In view of the fact that the accused respondent did not appear in the trial, and was therefore unable to cross-examine the prosecution witnesses, Appellate Division is of the view that ends of justice will be met if the case is remanded to the trial Court for giving an opportunity to the respondent to cross-examine the prosecution witnesses, if he so desires and also in order that the Court may examine the accused under section 342 of the Code of Criminal Procedure. The criminal petition for leave to appeal is disposed of. The impugned judgement and order is set-aside. The case is remanded to the trial Court so far as it relates to accused respondent Robin with the direction to allow the accused to cross-examine the witnesses, if he so desires and to conclude the trial in accordance with law. The accused respondent Robin be enlarged on bail to the satisfaction of the trial Court till conclusion of the trial. .....The State =VS= Robin, (Criminal), 2022(1) [12 LM (AD) 677] 

Section 9(3)

Death sentence– Offence as perpetrated by the accused is a crime against humanity. No woman including a minor girl is safe at the hands of such monsters as the convict. As such, the only punishment which the convict deserves is death sentence. Appellate Division does not find any cogent and legal ground to interfere with the judgement and order of conviction and sentence as stated above. The conviction and sentence of death passed by the Tribunal in Nari-O-Shishu Case No.44 of 2006 which was maintained by the High Court Division is upheld. ...Milon(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 399] 

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, [10 LM (AD) 360] 

Section 9(1)/30

Granting bail to the accused-respondent for a period of 6(six) months. The accused-respondent was convicted under section 9(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced to suffer imprisonment for life and to pay a fine of Tk. 5,000/—, in default, to suffer rigorous imprisonment for 4(four) months more.

We find that the High Court Division was not justified at all to grant this accused-respondent bail during pendency of the appeal. In the circumstances we set aside the impugned order of the High Court Division granting bail to the accused-respondent. .....The State =VS= Hafej Bakaul, (Criminal), 2016-[1 LM (AD) 594]

Section 9(2)

Charge framing date is the relevant date for considering the age of the accused under the Children Act, 1974 –

The Appellate Division has given our anxious thought to the age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. The Appellate Division is inclined to commute the sentence of death to one of imprisonment of life. Accordingly, the criminal appeal is dismissed and the sentence of death is modified to one of imprisonment for life. .....Manik =VS= The State, (Criminal), 2016-[1 LM (AD) 520] 

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, (Criminal), 2021(1) [10 LM (AD) 697] 

Section 9(3) and 30

Charge of rape based on confessional statement of co-accused and other evidence held proved beyond doubt.

The Appellate Division as well as the High Court Division held the confessional statements of the accused clearly inculcator and the trial court was in serious error while terming the same exculpatory. The charges are also held to have been proved beyond all reasonable doubt and thereupon convicted and sentenced the convict- appellants. Aminur Rahman and others Vs. Fatema Beguni and the state 13 MLR (2008) (AD) 249.

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 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 9(2)

The Code of Criminal Procedure

Section 35A

The condemned-appellant was an adolescent at the time of commission of the offence–– Having taken into consideration all the facts and circumstances of the case, Appellate Division is of the view that on consideration of his age at the time of commission of the offence, the condemned-appellant should be given a chance so that after suffering the prolong sentence, he could lead an orderly life and become a law abiding citizen of this country. Therefore, this Division is inclined to commute the sentence of death imposed upon the condemned-appellant to imprisonment for life. .....Shamim @ Shamim Reza (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD) 260] 

Section 9Ka

The imperative ingredients of 9Ka of the Ain are that there must be an act of abetment of committing suicide of a female (নারীর আত্মহত্যা করিতে প্ররোচিত করিবার.....") that there must be a wilful act of the accused "[ব্যাক্তির ইচ্ছাকৃত (wilful) কোন কার্য]"; that the said wilful act is done without the consent of the victim or against her will [...নারীর সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে] that the said wilful act violates her modesty [...কার্য দ্বারা সম্ভ্রমহানী] and that violation of her modesty is the direct cause of her to instigate suicide by his aforesaid act " সম্ভ্রমহানী হইবার প্রত্যক্ষ কারনে কোন নারী আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিতে প্ররোচিত করিবার] .....Dr APM Sohrab-uz-zaman =VS=State, (Criminal), 2016-[1 LM (AD) 466] 

Section 9(Ka) r/w

The Code of Criminal Procedure

Section-561A

Quashment– Abetment of suicide–

Considering the facts and circumstances as revealed from the prosecution papers our considered view is that there was no direct incitement or mensrea on the part of the appellant which comes within the definition of abetment of suicide. In this case, the materials on record, prima-facie, do not disclose an offence under section 9Ka of the Ain and therefore the accused appellant ought not to be tried upon the charge. The judgment and order of the High Court Division is set aside and the proceeding is quashed. .....Dr APM Sohrab-uz-zaman =VS=State, (Criminal), 2016-[1 LM (AD) 466] 

Section 9Ka-Section 9Ka provides that, "নারীর সম্মতিছাড়া বা ইচ্ছার বিরুদ্ধে "সম্ভ্রমহানী" anticipated a non-consensual act of such a nature where there has been violation of modesty. The word modesty is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account for her sex. The word modesty has not been defined in the Ain or in the Penal Code. Dr APM Sohrab-uz- zaman vs State, 68 DLR (AD) 331

Section 9Ka-Neither the telephone conversation nor the alleged conduct of the appellant as revealed from the FIR and charge-sheet could have been the direct cause (প্রত্যক্ষ কারণে) of the commission of suicide as required under section 9ka of the Ain. It can be said that the act which, as claimed by the respondent, instigated suicide and caused her death, cannot be accepted for the causal link of the sad demise of the deceased with the act as described in the charge-sheet against the appellant, is not present to form the offence which can fit to call within the ambit of section 9Ka of the Ain. Dr APM Sohrabuzzaman vs State, 68 DLR (AD) 331

Section 9(Ka) Suicide and abetment -Uttering of abusive language will not amount to provocation to commit suicide and does not constitute abetment unless something more is done in pursuance of the said utterance of abuses. Dr APM Sohrab- uz-zaman vs State represented by the Deputy Commissioner, Dhaka, 68 DLR (AD) 331

Section 9Ka-The wilful act was done without the consent of the victim or against her will is totally irrelevant here since they are husband and wife. The phone call was between two consensual adults, i.e. married couple. Dr APM Sohrabuzzaman vs State, 68 DLR (AD) 331

Section 9Ka-There must be an act of abetment of committing suicide of a female (নারীর আত্মহত্যা করিতে প্ররোচিত করিবার......"; that there must be a willful act of the accused "[ব্যক্তির ইচ্ছাকৃত (willful) কোন কার্য]"; that the willful act is done without the consent of the victim or against her will [...... নারীর সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে] that the willful act violates her modesty [...... কার্য দ্বারা সম্ভ্রমহানী] and that violation of her modesty is the direct cause of her to instigate suicide by his act [সম্ভ্রমহানী হইবার প্রত্যক্ষ কারণে কোন নারী আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিতে প্ররোচিত করিবার] Dr APM Sohrabuzzaman vs State, 68 DLR (AD) 331

Section 10 read with Penal Code

Sections 143/448/385 and 506

A case which is not proved due to lack of evidence does not necessarily mean that it was false.

The Appellate Division observed that it must be realized that there is an ocean of difference between a case being false and a one being not proved due to lack of evi- dence. A case which is not proved due to lack of evidence does not necessarily mean that it was false. Moreover, the High Court Division has observed that on the selfsame matter the complainant petitioner obtained a money decree by way of compensation and there was no reason or satisfactory ground to admit the complainant's appeal and, accordingly, dismissed the appeal summarily. Appellate Division does not find any reason to interfere with the decision of the High Court Division. Accordingly, petition is dismissed. প্রমাণের অভাবে মামলা প্রমাণিত না হলে এ অজুহাতে বলা যাবে না মামলাটি মিথ্যা।

আপীল বিভাগ লক্ষ্য করেছেন একটা মিথ্যা মামলা এবং একটি মামলা যেখানে মূলত প্রমানের অভাবে মামলাটি প্রমাণিত হয়নি এই দুইয়ের মধ্যে বিরাট পার্থক্য রয়েছে। সে মামলাটি সাক্ষ্য প্রমাণের অভাবে প্রমাণ হয় নি সেটি মিথ্যা তা বলা যাবে না। এছাড়া, হাইকোর্ট বিভাগ দেখেছেন যে, অভিযোগকারী পিটিশনার ক্ষতিপূরণ স্বরূপ একটি মানি ডিক্রী প্রাপ্ত হয়েছেন এবং অভিযোগকারীর আপীলটি গ্রহণ করার ব্যাপারে তেমন কোন সন্তোষজনক যুক্তি/কারণ দেখা যায় না এবং তাই আপীলটি তারা সরাসরি খারিজ করে দিয়েছেন। হাইকোর্ট বিভাগের সিদ্ধান্তে হস্তক্ষেপ করার মত তেমন কোন যুক্তি আপীল বিভাগ দেখছেন না বিধায় আপীলের অনুমতি চেয়ে যে, দেওয়ানী পিটিশনটি পেশ করা হয়েছে সেটি খারিজ করা হয়েছে।

Md. Shibli -Vs.-Salma Sultana Hashi and another (Criminal) 7 ALR (AD) 96

Section 11-In order to convict a person and to sentence him under clause-(ka) of section 11, there must be evidence that a person so charged either caused death of fa a 'নারী' or attempted to cause death of a 'নারী'

The Appellate Division held that the tes- timony of PW 2 (the victim) that the ac- cused allegedly throttled her only; the Doctor was called in for her treatment after 8(eight) hours of the occurrence and that the victim gave birth to a child at 3 o' clock in the night, following the date of occur- rence, i.e. after 18 hours and did not also care to consider whether the act of throt- tling by the accused at all falls within the phrase 'grievous hurt' and thus fell into an error in finding the accused guilty under section 11(ka) of the Ain, 2000. Therefore, the order of conviction of the accused un- der section 11(ka) of the Ain, 2000 and the sentence awarded thereunder cannot be sustained. Md. Nurul Huda Vs. The State, represented by the Deputy Commis- sioner Lalmonirhat. (Criminal) 11 ALR (AD) 5-12

Section 10 r/w

Penal Code [XLV OF 1860]

Sections 143/448/385 and 506

A case which is not proved due to lack of evidence does not necessarily mean that it was false.

The Appellate Division observed that it must be realized that there is an ocean of difference between a case being false and a one being not proved due to lack of evidence. A case which is not proved due to lack of evidence does not necessarily mean that it was false. Moreover, the High Court Division has observed that on the selfsame matter the complainant petitioner obtained a money decree by way of compensation and there was no reason or satisfactory ground to admit the complainant’s appeal and, accordingly, dismissed the appeal summarily. Appellate Division does not find any reason to interfere with the decision of the High Court Division. Accordingly, petition is dismissed. .....Md. Shibli =VS= Salma Sultana Hashi & another, (Criminal), 2016-[1 LM (AD) 545] 

Sections 10, 9(4)(kha)

We are also of the view that the High Court Division altered the conviction from Section 10 to Section 9(4)(kha) of the Ain and thereby enhanced the sentence imposed upon the convict-petitioner without giving show cause notice or issuing any Rule upon him and such enhancement has been done without following the due process of law as provided in the statute. The judgment and order of the High Court Division passed in Criminal Appeal No.4692 of 2015 dated 13.06.2016 is set aside. However, since the allegation of Section 10 of the Ain, 2000 has been proved by adducing witnesses from the prosecution side, the judgment and order of the Tribunal is thus restored. ...Mujibur Rahman(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 505] 

Section 11(ka)

Sentence of death– Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain of 2000 offers only one sentence which is the death penalty. Apart from this, the brutality shown by the condemned prisoner which was also supported by the medical evidence should not meet the mercy of this Division. We also hold the view that the way of dealing the weapon as has been dealt by the condemned convict leaves no room for doubt that the dealing of scythe (Hashua) was the result of premeditation and cool calculation with intention to cause death and thereby committed murder rendering him to be convicted under section 11(Ka) of the Nari-o-Shishu Nijatan Damon Ain and there is no extenuating circumstances to alter the sentence. .....Ismail Hossain(Md.) =VS= The State, (Criminal), 2022(1) [12 LM (AD) 536] 

Section 11(Ka)

In section 11(Ka) of the Ain of 2000, it is provided that if death is caused by husband or husband’s, parents, guardians, relations or other persons to a woman for dowry, only one sentence of death has been provided leaving no discretionary power for the tribunal to award a lesser sentence on extraneous consideration. This provision is to the same extent ultra vires the Constitution. …BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] 

Sections 11(Ka)/30

Code of Criminal Procedure

Section 35A

Imprisonment for life instead of capital punishment– The killing of the victim was certainly terrible, however, there appears a few Mitigating Circumstance in the instant case, and these may be described as follows-

i) the deceased left 02 kids alive of 05 and 01 years of age. If the appellant, that is the father of the said kids executed these kids of the circumstances will become orphans;

ii) the present appellant detained in the condemn cell of jail for almost 14 years;

iii) there is no Previous Conviction or Previous Record (PC/PR) of the offender;

iv) in the present case the impression of offence on society, state etc. are limited to a certain locality and no such cross country effect was recorded in any way;

v) absence of any material to believe that if allowed to live he poses a grave and serious threat to the society.

Appellate Division opines that though there is no uncertainty that the appellant has committed a repulsive crime, even so for this, this Division believes that internment for life will serve as sufficient punishment and penitence for his actions. This Division believes that there is hope for reformation, rehabilitation. Hence, this Division is inclined to impose imprisonment for life instead of capital punishment. ...Anwar Sheikh(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 344] 

Sections 11(ka)

Death sentence– When the wife was in custody of the accused, the accused has to explain how his wife met death– Appellate Division is of the view that the prosecution has been able to prove the case beyond reasonable doubt that the appellant Md. Abdul Latif murdered the deceased on demand of dowry and the High Court Division correctly confirmed the conviction and sentence of death of the appellant passed by the Nari O Shishu Nirjatan Daman, Tribunal, Sirajganj. Therefore, this Division finds no cogent reason to interfere with the judgment and order passed by the High Court Division. ...Abdul Latif(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 216] 

Section 11(Ka)

Code of Criminal Procedure, 1898

Section 342

Sentence is commuted to imprisonment for life– The procedural defect can be cured by sending the case back on remand before the Tribunal for examining the appellant afresh under section 342 of the Code, but from the materials on record of the case at hand, it appears that the appellant has been in condemned cell for more than 15 (fifteen) years suffering the pangs of death and at this stage if this case is sent back on remand, it would take many years to dispose of the case and the appellant has to undergo the sufferings. After considering all these aspects, Appellate Division is at this stage inclined to dispose of the appeal instead of sending the case back on remand to the trial Court.

The appellant has been convicted under section 11(Ka) of the Nari O Shishu Nirjatan Daman Ain, 2000 for murder of his wife and sentenced to death. In section 11(ka) of the Ain the only punishment for murder for demand of dowry is death. It is the discretion of the court to impose death penalty considering the gravity of the offence. To measure the gravity of the offence or appropriate circumstances to impose death penalty is the judicial function. The Court shall scrutinize the relevant facts and circumstances to impose punishment in respect of each case; this discretionary power of the Court can be curtailed by no means.

The Jail Appeal is dismissed with modification of sentence. The sentence of the appellant is commuted to imprisonment for life with a fine of Tk.5,000.00, in default to suffer simple imprisonment for 15(fifteen) days more. ...Mohasin Mollah(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 222] 

Section 11(Ka)

Sentenced him to death–

The High Court Division also directed the trial judge to conclude the trial expeditiously and to keep the accused in custody till conclusion of the trial. The learned advocate, however, could not deny the fact that both the trial court and also the High Court Division have found that this accused-petitioner murdered his wife. We direct the trial court concerned to conclude the trail of the case against this accused-petitioner within 6(six) months from the date of receipt of the copy of this order. .....Lokman Sarder =VS= The State, (Criminal), 2016-[1 LM (AD) 579] 

Section 11(ka) r/w

The Penal Code

Section 302

The murder was cold blooded and brutal without any provocation– Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 provides for capital punishment only. Therefore, the High Court Division took the view that it could not take any lenient view in respect of awarding punishment to the condemned-appellant. Moreover, in the present case, the savage nature of crime has shocked our judicial conscience. The murder was cold blooded and brutal without any provocation. Therefore, the submissions of the learned Advocate for the appellant that imprisonment for life may be awarded to the appellant by converting his conviction from 11 (ka) of the Nari-O-Shishu Nirjatan Daman Ain to section 302 of the Penal Code do not hold good on the facts and in circumstances of the case in hand. Moreover, demand of Tk.10000/- as dowry has been proved by the satisfactory evidence as found by both the Courts below. ...Abdul Haque(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 472] 

Section 11(Ka) r/w

The Penal Code

Section 302

Modifications of sentence– The appellant has been convicted under section 11(Ka) of the Ain, 2000 read with Section 302 of the Penal Code by the High Court Division. From the materials on record, it is found that the appellant No.1 Shahan Shah Sikder (Tito) has been in condemned cell for more than 13 (thirteen) years suffering the pangs of death.

Accordingly, the conviction of the appellant No.1 Shahan Shah Sikder (Tito), son of late Elias Sikder, Village-Tularampur, Police Station & District-Narail is maintained. However his sentence is reduced to imprisonment for life along with a fine of Tk.20,000.00. The jail authority of Jessore jail is directed to shift the convict-appellant No.1, Shahan Shah Sikder (Tito), son of Elias Sikder from condemned cell to regular prison forthwith. The appellant No.2, Aleya Begum, wife of Elias Sikder, Village-Tularampur, Police Station & District-Narail be acquitted of the charge leveled against her. Let her be set at liberty forthwith if not wanted in connection with any other case. ...Shahan Shah Sikder (Tito) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 630]

Section 11(ka)

Offence of causing death for dowry - Husband liable to explain how his wife met her death.

Law is well settled that the husband is under the liability to explain how his wife met with her death when the husband and the wife were living in the same house. But when it is not established that the husband was present in the same house at the time of occurrence, the husband does not have the liability to explain as to how his wife met her death. When the symptoms of committing suicide are present and the postmortem examination report is doubtful, the High Court Division acquitted the condemned prisoner which the Appellate Division found nothing to interfere with. State Vs. Md. Sadequl islam Tushar and others 15 MLR (2010) (AD) 147.

Section 11 (Ka)/30

The Penal Code, 1860

Section 302

The Code of Criminal Procedure, 1898

Section 35A

FIR is not a substantive evidence, it can be gathered from the statements made therein that the relationship between the husband and the wife was bitter because of demand of dowry by the husband. It is alleged in the FIR that Tk. 30,000/-was paid to the condemned-appellant at the time of marriage. ––Having taken into consideration all the facts and circumstances of the case, we are inclined to commute the sentence of death to imprisonment for life. .....Md. Mamun@ Mamun Ar Rashid =VS= The State, (Criminal), 2023(2) [15 LM (AD) 180]  

Section 11(Ka)/30

Penal Code

Section 302 and

Code of Criminal Procedure, 1898

Section 238

In section 238 of the Code, it has been provided that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and such combination is proved, he may be convicted of the minor offence though he was not charged with it. The section further provides that when a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted for commission of minor offence, although he is not charged with it. In the present case although the accused were charged with the offence of murder for dowry under Sections 11(Ka)/30 of the Ain, on the proven facts they were convicted for the offence of murder only under section 302/34 of the Penal Code. In terms of punishment, it is very much clear that an offence under Section 11(Ka) of the Act is graver than an offence punishable under section 302 of the Penal Code. Hence, an offence under section 302 of the Penal Code can be considered as a minor offence than that of an offence under Section 11(Ka) of the Ain and therefore, framing of charge was not required for conviction. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 

Section 11(Ka)/30

Penal Code

Section 302/34

Alternation of charge from 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 to Section 302 of the Penal Code will not cause prejudice to the accused:

In order to convict a person under minor offence, though charged under major offence, the ingredients constituting the offence under the minor offence should be common as that of the ingredients constituting major offence and to convict him, some of the ingredients of the major offence could be absent. Since the offence under Sections 11(Ka)/30 of the Ain is a graver offence wherein the charge as to killing of the wife has been framed along with charge of demanding dowry than that of the case under Section 302/34 where the charge of killing of any person is usually be brought against accused, we are of the view that the alternation of charge from 11(Ka) of the Ain to Section 302 of the Penal Code will not cause prejudice to the accused. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 

Section 11(Ka)/30

Penal Code

Sections 302/34

The High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case:

Our final conclusion is that the High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case. An Appellate Court has the same power as that of the trial Court i.e. the Tribunal and therefore, as an Appellate Court the High Court Division in the present case is competent to convert the conviction to secure the ends of justice. Undoubtedly such an Act of the High Court Division shall in no way prejudice the accused and State; otherwise order of remand shall entail unnecessary time, money and energy due to fruitless or useless prosecution and defence. Similarly, the Tribunal which is created under the Ain shall be deemed to be the Court of Sessions of original jurisdiction and, is entitled to alter/amend the charge framed under Section 11(Ka) of the Ain to one under Section 302 of the Penal Code and to dispose of the case finally in accordance with law if the accused is not otherwise prejudiced. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 

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 11(Ka)

Code of Criminal Procedure

Section 161

Sentencing him to death–– The learned Judge of Nari-O-Shishu Nirjatan Dimim Special Tribunal, Satkhira, after considering the evidence and materials on record, by the judgment and order of conviction and sentence dated 02.07.2008 convicted and sentenced the accused-respondent. ––Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the trial Court, the convict-appellant Md. Rezaul Islam Gazi alias Rezaul Islam preferred Criminal Appeal No. 4466 of 2008 and Jail Appeal No. 693 of 2008 before the High Court Division. The learned Judges of the High Court Division upon hearing the parties by the judgment and order dated 10.07.2013 rejected the death reference and allowed the criminal appeal and jail appeal and set aside the judgment and order of conviction sentence by the tribunal Court. ––The High Court Division found that the investigation officer (P.W.6) in his cross-examination clearly stated that the witnesses during examination under section 161 of the Code of Criminal Procedure stated that when the occurrence took place, accused Rezaul Islam was not present at the place of occurrence. The High Court Division further found that the cause of death could not be determined by the Medical Board in the absence of anypoison in the viscera report and that whether the death was homicidal in nature or not. The High Court Division also found that the prosecution witnesses could not prove that on night of occurrence accused Rezaul Islam was at his house. .....State =VS= Md. Rezaul Islam Gazi alias Rezaul Islam, (Criminal), 2023(1) [14 LM (AD) 451] 

Section 11(Ka)/30

The Penal Code, 1860

Sections 302/34

Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case–– The High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case. An Appellate Court has the same power as that of the trial Court i.e. the Tribunal and therefore, as an Appellate Court the High Court Division in the present case is competent to convert the conviction to secure the ends of justice. Undoubtedly such an Act of the High Court Division shall in no way prejudice the accused and State; otherwise order of remand shall entail unnecessary time, money and energy due to fruitless or useless prosecution and defence. Similarly, the Tribunal which is created under the Ain shall be deemed to be the Court of Sessions of original jurisdiction and, is entitled to alter/amend the charge framed under Section 11(Ka) of the Ain to one under Section 302 of the Penal Code and to dispose of the case finally in accordance with law if the accused is not otherwise prejudiced. .....The State =VS= Nurul Amin Baitha and another, (Criminal), 2023(1) [14 LM (AD) 615] 

Section 11(Ka)

In section 11(Ka) of the Ain of 2000, it is provided that if death is caused by husband or husband’s, parents, guardians, relations or other persons to a woman for dowry, only one sentence of death has been provided leaving no discretionary power for the tribunal to award a lesser sentence on extraneous consideration. This provision is to the same extent ultra vires the Constitution. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1 

Sections 11(ka)/30

Power of conversion of conviction from special law to general law:

The High Court Division was not right in converting the conviction under section 302/34 of the Penal Code from those of under section 11(ka)/30 of the Ain 2000, a special law, as it does not have that authority to do so unless charge is framed under section 302/34 of the Penal Code. …State Vs. Nurul Amin Baitha & another, (Criminal), 11 SCOB [2019] AD 13 

Section 11(Ka) and

Penal Code 1860, section 302:

When dowry demand has been proved and the murder was cold blooded, brutal and without provocation, death sentence should not be commuted:

The murder was cold blooded and brutal without any provocation. Therefore, the submissions of the learned Advocate for the appellant that imprisonment for life may be awarded to the appellant by converting his conviction from 11 (ka) of the Nari-OShishu Nirjatan Daman Ain to section 302 of the Penal Code do not hold good on the facts and in circumstances of the case in hand. Moreover, demand of Tk.10000/- as dowry has been proved by the satisfactory evidence as found by both the Courts below. …Md. Abdul Haque Vs. The State, (Criminal), 15 SCOB [2021] AD 58 

Section 11 (Ka)/30

When wife dies within the custody of her husband, the husband is to explain the of her death–– In the case of Nausher Ali Sarder others vs The State, 39 DLR (AD) 194 it has been held that death sentence was commuted to imprisonment for life because "bitter matrimonial relationship played a part in this nefarious situation and while inflicting sentence such relationships cannot be overlooked." ––This criminal appeal is dismissed. The conviction imposed upon the condemned-appellant under section 302 of the Penal Code passed by the trial Court and confirmed by the High Court Division is maintained but his sentence of death is commuted to one for imprisonment for life and also to pay a fine of Taka 10,000 (ten thousand), in default, to suffer rigorous imprisonment for 1 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure and other remissions as admissible under the Jail Code. .....Mamun @ Mamun Ar Rashid (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD) 264] 

Section 11(Ka)-The prosecution miserably failed to prove the case of dowry. So no case was proved under section 11(ka) of the Ain rather it has proved the case of murder under section 302 of the Penal Code. Invoking Article 104 of the Constitution, the sentence should be altered to imprisonment for life under section 302 of the Penal Code instead of death under section 11(ka) of the Ain, 2000. Anarul @ Anarul Huq vs State, 67 DLR (AD) 172

Section 11(Ka)- In order to convict a person and to sentence him under clause (ka) of section 11, there must be evidence that a person so charged either caused death of a 'নারী' or attempted to cause death of a 'নারী', Nurul Huda (Md) vs State, 67 DLR (AD) 231

Section 11(Ka)- There is a fine distinction in the degree of bodily injury between 'dangerous to life' and 'likely to cause death. Another type of bodily injury, which is sufficient in the ordinary course of nature to cause death, is also to be recognised. However, the injuries which prove fatal remotely by inter- current disease, such as tetanus, and erypsipelas should not be considered dangerous. Nurul Huda vs State (Cri) 67 DLR (AD) 231

Section 11(Ka) -It is a well settled legal proposition that the Appellate Division will not interfere with the judgment and order of acquittal, unless it can be shown that the findings of the High Court Divi- sion are perverse or it passed the order of acquittal on gross misreading of the evidence on record as well as on non consideration of material evidence or on misperception of law.

The Appellate Division held that the learned Judges considered every bit of evidence on record and also the provision of the section 11(Ka) of the Ain, 2000 and came to the definite finding that as on the date of occurrence, the respondent was not present at the house where the deceased was killed, he could not be connected with her killing and accordingly, acquitted him. The State -Vs. Harun Miah (Criminal) 15 ALR (AD) 126-127

Sections 11(Kha) and 30- Merely signing the salishnama does not necessarily imply that the complainant admitted the allegation brought against her.

The Appellate Division directed that the following paragraph be expunged from the judgement and order of the High Court Division: The trial court should have taken into consideration that the victim was not a person of good character particularly exhibit-X shows that she had an illicit connection with her brother-in-law (বড় ভগ্নিপতি) which had been admitted by herself in putting her signature in a salishnama, accordingly petition was dismissed.

সর্বশেষ আদালতে প্রমাণ না হওয়া প্রর্যন্ত অপবাদ দেয়া যাবেনা।

আপীল বিভাগ এই মর্মে নির্দেশ দিয়েছিলেন যে, হাইকোর্ট বিভাগের রায় ও আদেশ থেকে নিম্নোক্ত অনুচ্ছেদটি বাদ দেয়া হোক: 'Victim' উত্তম চরিত্রের লোক নয় বিশেষ করে প্রদর্শনী-১০-এর মধ্যে দেখা যায় যে, সে তার ভগ্নিপতির সঙ্গে একটা বেআইনী ও অনৈতিক সম্পর্ক গড়ে তুলেছিল সেটি একটি সালিশনামায় সই স্বাক্ষরের মাধ্যমে সে নিজেই স্বীকার করেছে এবং তাই পিটিশনটি খারিজ করা হয়।' The State Vs. Md. Rofizal Haque (Criminal) 7 ALR (AD) 24

Section 11(Kha) Conviction even without framing charge on a particular count.

The accused may be convicted of the offence which was proved against him although no charge was framed.

Ingredients of section 11(a) of the Nari- O-Shishu Nirjatan Daman Ain, 2000 are very much present in this case against the appellant-petitioner and in view of the provision of section 237 of the Code of Criminal Procedure he may be convicted of the offence which was proved against him although no charge was framed under section 11(a) as the same offences are of cognate nature, Conviction of the appellant-petitioner under section 11(a) was rightly found to be in accordance with law. Md. Harun-ur-Rashid vs TheState 3ALR(2014)(1)(AD) 104

Section 11(Kha) without framing charge on a particular count.

The accused may be convicted of the offence which was proved against him although no charge was framed.

Ingredients of section 11(a) of the Nari- O-Shishu Nirjatan Daman Ain, 2000 are very much present in this case against the appellant-petitioner and in view of the provision of section 237 of the Code of Criminal Procedure he may be convicted of the offence which was proved against him although no charge was framed under section 11(a) as the same offences are of cognate nature. Conviction of the appellant-petitioner under section 11(a) was rightly found to be in accordance with law. Md. Harun-ur-Rashid -Vs.- TheState 3ALR(2014)(1)(AD) 104

Section 11(Ga)

The High Court Division found that the incident of assault on the complainant is alleged to have occurred on 06.02.2009, whereas the accused husband claims to have divorced the complainant on 19.01.2009. The High Court Division observed that since the divorce took place earlier, the victim was not supposed to be present in the house of her husband after 19.01.2009. 

অভিযোগ করা হয় স্বামী তাকে নির্যাতন করেছে কিন্তু ভিকটিমকে এর পূর্বেই তালাক দেয়া হয়েছিল। The State -Vs. Md. Rofizal Haque 6 ALR (AD) 2015 (2)90

Section 17

Appellate Division helds that before proceeding with a case of false complaint or information against the informant or complainant, it would be prudent for the Court or Tribunal concerned to examine the materials on record to assess the prima facie nature of the allegation. It would be a futile exercise to proceed against the complainant/informant of a case charging him with having lodged a false case if the allegation of a false case having been brought by the accused is ultimately not likely to be substantiated in Court. A.K. Azad -Vs. Md. Mostafizur Rahman 6 ALR (AD) 2015 (2)44

Section 11(Ga) and 30

The Code of Criminal Procedure, 1898

Section 561A

It would be an illegal harassment of the respondents and invoking its inherent jurisdiction under section 561A of the Code of Criminal Procedure quashed the proceedings to secure ends of justice– It is clear that if a petition of complaint is filed, the Tribunal is to see whether any affidavit has been filed stating the facts that the complainant requested one police officer as mentioned in sub-section(1) or empowered person to receive the complaint and failed and if it is found that the affidavit has been filed stating that fact, then the Tribunal will examine the complainant and if satisfied will send the petition of complaint for enquiry to any Magistrate or any other person and the concerned person shall within 7(seven) days submit a report to the Tribunal. If the Tribunal is not satisfied then he will dismiss the complaint.

It is clear that there is no proof in support of this part of the requirement of law and as such, the Tribunal ought to have dismissed the complaint, but it without doing so took cognizance on the plea that there were prima-facie materials in support of the allegation against the accused, but that was not sufficient. The Tribunal has to be satisfied that proof of both the requirements were available in the report. Thus taking cognizance of the offence in the instant case was illegal. Appellate Division finds no illegality in the impugned judgment and order passed by the High Court Division. .....Umme Kulsum (Sweety) =VS= Md. Nazmul Islam, (Criminal), 2022(1) [12 LM (AD) 696]

Section 11(Ga)

The High Court Division found that the incident of assault on the complainant is alleged to have occurred on 06.02.2009, whereas the accused husband claims to have divorced the complainant on 19.01.2009. The High Court Division observed that since the divorce took place earlier, the victim was not supposed to be present in the house of her husband after 19.01.2009. The State -Vs.- Md. Rofizal Haque 6 ALR (AD) 2015 (2)90

Section 11 (Ga)

Code of Criminal Procedure, 1898

Section 173

Tribunal has proper authority to decide whether the case should be sent for further investigation by any other agency or he can ask for a report after holding a judicial enquiry– The learned Judge (Bicharok) Nari-O-Shishu Nirjatan Daman Tribunal No.1, Dhaka has proper authority to decide whether the case should be sent for further investigation by any other agency or he can ask for a report after holding a judicial enquiry. Appellate Division, therefore, hold the view that the impugned order as well as the order dated 11.08.2008 passed by the learned Judge (Bicharok) Nari-O-Shishu Nirjatan Daman Tribunal No.1, Dhaka should be set aside and the matter should be placed before the learned Judge (Bicharok) Nari-O-Shishu Nirjatan Daman Tribunal No.1, Dhaka for taking steps in the light of the observations made in this judgment and order. ...Elina Ainun Nahar =VS= The State, (Criminal), 2021(2) [11 LM (AD) 486] 

Sections 11(Kha) and 30

Merely signing the salishnama does not necessarily imply that the complainant admitted the allegation brought against her–

The Appellate Division directed that the following paragraph be expunged from the judgement and order of the High Court Division: The trial court should have taken into consideration that the victim was not a person of good character particularly exhibit-X shows that she had an illicit connection with her brother-in-law (বড় ভগ্নিপতি) which had been admitted by herself in putting her signature in a salishnama, accordingly petition was dismissed. .....The State =VS= Md. Rofizal Haque, (Criminal), 2016-[1 LM (AD) 550] 

Section 11(Ga)

Evidence Act, 1872

Section 114(g)

It is well settled that criminal offence never abates. ––This material contradiction between the evidence of P.W.1 and doctor, P.W.5 also creates doubt about the veracity of the prosecution case. P.W.2 the father of the complainant in his cross-examination stated that “on the date of occurrence (06.02.2005), these witnessed (P.W No. 3 and 4) were not present.” P.W.3, in his cross-examination stated that he was called after the occurrence. P.W.4 also deposed that hearing the cry of the complainant she rushed to the place of occurrence. The evidence of P.Ws. 2, 3 and 4 do not convince and inspire us in finding the guilt of the appellant within the mischief of section 11(Ga) of the Ain, 2000. As such it is our considered view that the prosecution has failed to prove the charge under section 11(Ga) of the Ain, 2000 against the appellant beyond reasonable doubt. ––The appeal is allowed. The judgment and order of the High Court Division affirming the judgment and order of conviction and sentence passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Chattogram in Nari-O-Shishu Nirjatan Case No. 126 of 2005 is hereby set aside. .....Mohammad Khorshed Alam =VS= The State, (Criminal), 2023(1) [14 LM (AD) 248] 

Section 17(2)

Special Laws generally carry harsher punishment than general law. Hence, the requirement of section 17(2) should not be taken so lightly. .....A. K. Azad @Baira Azad =VS= Md. Mostafizur Rahman, (Criminal), 2022(1) [12 LM (AD) 650] 

Section 17(2)

Tribunal sending the complaint to the police station for investigation without examining the complainant - nothing wrong is there.

The tribunal sent the complaint to the police station for investigation without examining the complainant under section 200 Cr.P.C. The High Court Division held there was nothing wrong and discharged the rule which the apex court found perfectly justified. Afroza Jesmin Vs. the State 12 MLR (2007) (AD) 303.

Section 25(1), 26(2) (3) (4), 27(3)

Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 25(1), 26(2) (3) (4), 27(3) Penal Code Section 302/34 The scheduled offence of the Ain and offences defined in the Penal Code can be tried jointly by the Tribunal: The words, “ট্রাইব্যুনাল একটি দায়রা আদালত বলিয়া গণ্য হইবে এবং এই আইনের অধীন যে কোন অপরাধ বা তদনুসাওে অন্য কোন অপরাধ বিচারের ক্ষেত্রে দায়রা আদালতের সকল ক্ষমতা প্রয়োগ করিতে পারিবে।” of Section 25(1) of the Ain are significant. Those words clearly indicate that the Ain authorises the Tribunal to try both scheduled offence of the Ain and non-scheduled offence together and in such circumstances the Tribunal shall exercise all the powers of a Court of Sessions. Sub-Sections (2), (3) and (4) of Section 26 of the Ain relate to the appointment of the Judge of the Tribunal which provide that Judge of the Tribunal should be appointed from the District and Sessions Judges. The Government may give responsibility to the District and Sessions Judge to act as Judge of the Tribunal in addition to his charge if it feels necessary. It is also provided that Additional District and Sessions Judges are also to be included as District and Sessions Judge. Sub-section 3 of Section 27 of the Ain authorises Tribunal to try scheduled and non-scheduled offences jointly for the interest of justice following the provisions of the Ain. In view of the discussions made above we have no hesitation to hold that the scheduled offence of the Ain and offences defined in the Penal Code can be tried jointly by the Tribunal. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 

Section 25

Under the Ain, the tribunal will enjoy all powers which a Court of Sessions enjoys save and except the ones specifically denied:

The Nari-O-Shishu Nirjatan Daman Tribunal is also a Court of Sessions of original jurisdiction as per provision of section 25 of the Ain since it has been specifically said in the Ain that the Tribunal shall be deemed to be a Court of Sessions. The words “ট্রাইব্যুনাল একটি দায়রা আদালত বলিয়া গণ্য হইবে” in legislation clearly expressed the intention of the Legislature that the Tribunal is to be act as Court of Sessions which is deeming provisions and are to strictly limited to the statutory purpose they are created for. It is our duty to ascertain the purpose for which such fiction is created. A deeming provision must be construed contextually and in relation to the legislative purpose. Section 25 of the Ain must lead to the inescapable conclusion that the statutory fiction laid down in it must be resorted to and full effect must be given to the language employed. Such deeming provision has been introduced to mean that the tribunal shall be deemed to be the Court of Sessions of original jurisdiction. That is, the Tribunal is a Court of original criminal jurisdiction and to make it functionally oriented some powers were conferred by the Ain setting it up and except those specifically conferred and specifically denied it has to function as a Court of original criminal jurisdiction not being hide bound by the terminological status or description of a Court of Sessions. Under the Ain, it will enjoy all powers which a Court of Sessions enjoys save and except the ones specifically denied. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 

Section 25 and

Code of Criminal Procedure, 1898

Section 227

The laws of procedure are devised for advancing justice and not impeding the same. The main object and purpose of enacting procedural laws is to see that justice is done to the parties. The Ain contains no provision relating to framing of charge. Hence, in view of Section 25(1), the provisions of the Code which relate to framing of charge are applicable to the Ain. Section 227 of the Code clearly mentions that Any Court may alter or add to any charge at any time before judgment is pronounced. In view of this section it becomes very clear that the High Court Division as the appellate authority in the present case has the power to alter the charge framed by the Tribunal and convict the accused on the same. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1 

Section 27-The Tribunal is not only empowered to frame charge it is also empowered to frame charge in respect of some other offences which are relevant for the purpose of proving the accused guilty in addition to the prima facie offence. Unless charge is framed and proved beyond all reasonable doubt by the prosecution the accused cannot be convicted. The State. - Vs. Nurul Amin Baitha (absconding) and another. (Criminal) 15 ALR (AD) 151-157

Section 27(3)- If the offences under the Ain, 2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed. Sohel Rana Shippon vs State, 66 DLR (AD) 160

Section 27

In the case in hand, the complainant filed the petition of complaint before the Tribunal supported by an affidavit stating that statements made in the complaint is true. And in the complaint it was asserted that she went to the police station but the police refused to accept her complaint and the concerned Tribunal being satisfied about the same, upon examining the complainant, directed to hold an inquiry into the allegation. Since the complainant by swear in an affidavit before the Tribunal asserted that the concerned police officer refused to accept her complaint and the Tribunal has also been satisfied about the said assertion, in our view, there is no legal necessity to make an inquiry into the said issue afresh, i.e. whether the complainant went to the police station and he/she was refused by the police before submitting the complaint before the Tribunal. Thus, the submissions of the learned Advocate for the appellant to the effect that the complainant in support of the complaint did not swear in any affidavit and did not make any statement that she went to the police station and the concerned police officer refused to accept her complaint and thus the learned Judge of the Tribunal has committed serious error of law in entertaining the complaint and sent it for inquiry have no leg to stand. ...Md. Khorshed Alam Vs. The State & anr, (Criminal), 17 SCOB [2023] AD 61

Section 27 (1 Ka)

Section 27 (1 Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000: Enquiry must be made by any other person than police: We are of the view that the Tribunal did not commit any illegality in entertaining the complaint filed by respondent No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of the Tribunal is satisfied as to the filing of the complaint he can direct the Magistrate or any other person to make an inquiry with regard to the allegation. The expression "অন্য কোন ব্যক্তি' (any other person) does not include any police officer but, it includes any public officer or any private individual or any other responsible person of the locality upon whom the Tribunal may have confidence to conduct the inquiry in respect of the complaint logged before it. In the instant case the learned Judge of the Tribunal acted illegally in directing the Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect of the complaint and, thereafter, taking cognizance on the basis of such inquiry report has vitiated the entire proceeding. ...Md. Khorshed Alam Vs. The State & anr, (Criminal), 17 SCOB [2023] AD 61 

Section 28

Bail– It appears that while granting bail the High Court Division considered the evidence and materials on record as well as the facts and circumstances of the case and exercised its discretion to grant bail to the respondent. We have also considered the evidence and materials on record. In the facts and circumstances of the case we do not consider that the exercise of discretion calls for any interference by this Division. It appears that the respondent was enlarged on bail by order dated 30.11.2004 and there was no ad interim order passed by this Division. In the circumstances we are of the view that the respondent may remain on bail till disposal of the appeal, if it has not been already disposed of. ...The State =VS= S.M. Mizanur Rahman @ Akash, (Criminal), 2020 [9 LM (AD) 588] 

Section 28-Bail-In granting bail the Court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts. are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint. State vs Arman, 67 DLR (AD) 181

Section 28- No requirement in law for recording the reasons for framing charge elaborately. There is no direction either in section 265C or in any other section of the Code of Criminal Procedure that the court/tribunal will have to record the reasons of framing charge also. If the Court/Tribunal, on examination of the records and also after hearing both the sides finds that there are sufficient materials for proceeding against the accused the Court/Tribunal shall frame charge against the accused persons, there is no requirement in law for recording the reasons for framing charge elaborately. Md. Muntasir Mamun Khan Vs. The State (Criminal) 5 ALR (AD)2015(1) 77

Section 28- Whether enlarged the convict on bail after he had suffered only seven months out of his sentence of 14 years imprisonment The Appellate Division held that from the impugned order it appears that while granting bail the High Court Division considered the evidence and materials on record as well as the facts and circumstances of the case and exercised its discretion to grant bail to the respondent. The Appellate Division also considered the evidence and materials on record. In the facts and circumstances of the case the Appellate Division consider that the exercise of discretion calls for any interference by this Division. The State-Vs.- S.M. Mizanur Rahman 5 ALR (AD)2015(1) 50

Section 32

On perusal of the medical certificate filed by the appellant at the earliest point of time it appears that there is seal and signature of the learned magistrate on it. But neither the Tribunal nor the learned Judges of the High Court Division made any comment after due observation of its recital which need to be discussed as to whether the medical certificate as has been obtained, procured after maintaining the provision of section 32 of the Nari-o-Shishu Nirjatan Daman Ain’ 2000. The learned Judge (Bicharok) is to take the same into consideration. ...Elina Ainun Nahar =VS= The State, (Criminal), 2021(2) [11 LM (AD) 486] 

Section 32

The Code of Criminal Procedure, 1898

Section 561A

Quashment of proceeding–– Invoking under section 561A of the Code of Criminal Procedure–– The High Court Division committed serious error in considering the evidence of P.W-1 and medical report in exercising the power under section 561A of the Code of Criminal Procedure at this stage when the prosecution yet not completed to adduce its evidence. The High Court Division has not been empowered to usurp the jurisdiction of the trial Court invoking section 561A of the Code of Criminal Procedure. .....Hasina Akhter =VS= Amena Begum, (Criminal), 2022(2) [13 LM (AD) 598] 

Section 34(2) and (3)

Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed. …BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286] 

Section 34(2) and (3)

Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1 

Sections 34

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

Sections 4 and 10

The Code of Criminal Procedure

Section 35A

Sentences in respect of similar nature of offences are changed by the Nari-O-Shishu Ain of 2000, therefore, our judicial conscious pricks when under the previous Ain, 1995–– The condemned prisoner has been languishing with the agony of death in the condemned cell for almost 18 years not due to any fault of his own–– Under the previous Ain, 1995 sentence of death is the only punishment for an offence under sections 4 and 10 of the Ain, but subsequently Ain, 2000 made provisions for imprisonment for life for the same offence. But the petitioner have been convicted and sentenced to death. With the repeal of Ain of 1995, the sentences prescribed therein in respect of similar nature of offences are changed by the Ain of 2000, therefore, our judicial conscious pricks when we note that under the previous Ain, 1995, no option other then sentence of death was available to the court.

The condemned prisoner has been languishing with the agony of death in the condemned cell for almost 18 years not due to any fault of his own. ––The Criminal Review Petition No. 03 of 2020 is dismissed. The sentence of death of the petitioner, Anowar Talukder is commuted to imprisonment for life and also to pay a fine of Taka 50,000/- (fifty thousand), in default, to suffer rigorous imprisonment for 5 (five) years more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. .....Anowar Talukder =VS= Deputy Commissioner, Madaripur, (Criminal), 2023(1) [14 LM (AD) 321] 

Section 34(2)(3)-Pending cases and appeals-Despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. BLAST vs State, 67 DLR (AD) 185