Penal Code, 1860 | AD Cases

Penal Code [XLV of 1860]

Section 2-The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution, the word "law" means any Act, Ordinance, etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream. Iftekhar Hasan @ Al Mamun vs State 59 DLR (AD) 36.

Section 2

A public servant by definition in 1982 in the Penal Code will prospectively be deemed to be a public servant under Act II of 1947 when he commits an offence as public servant after the amendment of the Penal Code. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.

Sections 21, 409, 477A & 462A

Section 110 of Banking Companies Act, 1991 also provides that a Mn2ger, Officer and other functionaries of the Banking Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent. Moreso, section 5 of Act II of 1947 speaks of the offences as mentioned in the schedule of the Act to be tried by Special Judges and in the schedule there are sections 403 and 477A of the Penal Code with which the accused has been charged for committing misconduct as a public servant. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255.

Section 21-Members of Union Parishad are "Public Servants" whom the Legislature has treated as a separate class of people's representa- tives and provided additional disqualification for them.

Above all, members of a Union Parishad are "public servants' within the meaning of section 21 of the Penal Code. The term 'Public Servants' denotes some executive control over them and they are subject to disciplinary rules which are applicable to regular government servants. In view of these differences in respect of functions and duties, the Legislature thought it proper and expedient to treat them as a separate class of people's representatives and has provided for the additional disqualification in question. Sheikh Abdus Sabur vs Returning Officer 41 DLR (AD) 30.

Section 21-The two provisions have only to be looked at by side to be sure that more people can now be called public servants for the purposes of the anti- corruption law. Anti-Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242

Section 21-Section 21 may generally signify any person duly appointed and invested with authority to administer any part of the public duty imposed by law, whether it be judicial, ministerial or mixed. Bangladesh Biman Airlines Limited vs Captain Mir Mazharul Huq, 70 DLR (AD) 16

Section 21-A person may be declared to be public servant by a statute but such declaration would not necessarily make him a public servant within the meaning of section 21, though he will be a public servant for other purposes in accordance with the provisions of the statute. A public servant need not necessarily be appointed by the government. Bangladesh Biman Airlines Limited vs Captain Mir Mazharul Huq, 70 DLR (AD) 16

Section 30

The Evidence Act, 1872

Section 30

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure, 1898

Section 35A

Sentence of death is commuted to imprisonment for life–– The provision of Section 30 is not conclusive for the reason that only if the Court feels the confession is corroborated with other materials on record, then that can be used against the co-accused and in that situation section 30 of the Evidence Act will come into play. The confession of the co-accused is not the substantive piece of evidence and that it can only be used to confirm the conclusion drawn from other evidence in a criminal trial–– It appears from the post-mortem report that the victim received as many as 10 injuries. Although the murder had been committed in a premeditated and calculated manner with extreme cruelty and brutality, it is difficult to say conclusively as to whose assault the victim died. The appellants Iqbal Sheikh, Md. Dawlat Fakir and Firoz Mollah have been languishing in death cell for more then 12 years. No absolute and unqualified rule can be laid down that in every case in which there is long delay in the execution of death sentence, the sentence must be substituted by life imprisonment. However, considering the facts and circumstances of the case, particularly, previous quarrel between the convicts Iqbal and Zaziron with the victim and that the nature of the offence, the diverse circumstances attended upon it, its impact upon the contemporary society, Appellate Division is of the view that ends of justice will be met if the sentence of death is commuted to one of imprisonment for life. .....Dawlat Fakir(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 413]

Section 32-It is not necessary to prove individual overt act to connect them with the offence under section 6(4) which provides for punishment both for individual as well as for constructive liability of a gang. It is pertinent to note the word 'gang' and the words 'cause death' as has been used to make not only the acts but also omission as defined in section 32 of the Penal Code punishable under section 6(4) of the Act. Moinul Haque vs State 56 DLR (AD) 81.

Section 34- The convict was present at the time of occurrence and took part in the killing of the victim by standing guard while, according to him, other accused persons killed the victim. He not only stood guard but also took part in the jubilation along with all the other assailants. It, therefore, cannot be said that the confes- sion was exculpatory, or that the common intention to kill the victim was absent in the case of the petitioner. Mishon Chandra Das vs State, 68 DLR (AD) 392

Section 34, 109, 1208, 149, 302, 324

On behalf of the respondent Government affidavit - in - opposition was filed in which the allegations and submissions of the appellants were denied and it was asserted, inter alia, that the killing of the President of the country along with the members of his family and others including women and children at different places could not be said to be necessary for change of Government on the 20th August 1975, that the said killings were offences which no law can indemnify nor has indemnified, that no provision of the Constitution had made Indemnity Ordinance 1975 a part of the constitution, that paragraphs 3 A and 18 of the Fourth schedule have not curtailed the power of Parliament of repeal any Act of Parliament or Ordinance made during the period between the 20th August, 1975 and the 9th April, 1979, that several Ordinances made during the said period have been repealed either by Ordinance or by Act of Parliament and that the indemnity Ordinance not being a part of the constitution but an ordinary Law, the repeal thereof does not attract article 142 of the constitution and that the Indemnity Ordinance has been Validly repealed by the Indemnity (Repeal) Act, 1996 which is valid and constitutional. Shahriar Rashid Khan ors. (1) vs Bangladesh ors. (1) (A.T.M. Afzal C J) (Civil) 2ADC 181

Section 34

Common intention– Once a reasonable ground exists to believe that two or more persons have conspired together to commit an offence, anything said, done or written by one of the conspirators in reference to the common intention after the common intention was entertained, is relevant against other, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it.

Principles of joint liability mere distance from the scene of crime cannot exclude culpability under Section 34 of the Penal Code in criminal sharing making out a certain measure of jointness in the commission of the act. (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386]

Section 34

International Crimes Tribunals Act, 1973

Section 4(1) r/w

The Penal Code, 1860

Section 34

A plain reading of section 4(1) of the Act, 1973 suggests that for commission of any offence by more than one person will be deemed that each of such person is liable for the offence. This section 4(1) and section 34 of the Penal Code are cognate in nature. Where a criminal offence is committed by several persons in furtherance of common intention of all, each of such person is liable for that offence in the same manner as if it were done by him alone. (Para-201); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Section 34

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, (Criminal), 2018 (1) [4 LM (AD) 430]

Section 34

If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code–

The High Court Division on a misconception of law held that the prosecution has failed to prove the conspiracy. From the evidence as discussed above, if there be any doubt about the conspiracy, it would be difficult to find out a suitable case to prove such charge. The facts found from the materials on record, the barbarity revealed in the commission of the crime and the seriousness of nature of the offence perpetrated by the accused, it would be a travesty irony if the accused persons are not convicted on the charge of conspiracy. With due respect I am unable to endorse the majority opinion that the accused-respondents cannot be convicted on the charge of criminal conspiracy. The question of the benefit of law does not arise at all for simple reason that they were charged with and defended of the charge of criminal conspiracy. If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code but their conviction would be one under sections 120B read with 302, not under sections 302/34 of the Penal Code.... (Surendra Kumar Sinha, J) (Minority view). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

Section 34

Although under section 34 of the Penal Code, when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone, in awarding punishment each of such persons may be sentenced to death if there is direct evidence of their criminal act in furtherance of the common intention of all. Khalil Mia vs State 4 BLC (AD) 223.

Section 34

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 34- Amendment of section 34- Insertion of the words "in furtherance of the common intention of all" after the word 'person' and before the word "each"-Its aim was to make the object of the section clear. Chand Mia vs State 42 DLR (AD) 3.

Section 34- Common intention-Nature of injuries caused by different accused-The Fact that some of the accused had caused fatal injuries and others caused minor injuries is in material if the act was done in furtherance of heir common intention. The nature of injuries has nothing to do as the two accused are found to have shared the intention of other accused whose acts resulted in the death of the victim. State vs Montu 44 DLR (AD) 287.

Section 34- Common intention-Pre-plan not essential ingredient-It is true in this case there was no pre-plan of the accused to kill the victim their common intention to kill developed on the spot when they all simultaneously fell upon the victim as soon as he appeared on the scene. State vs Montu 44 DLR (AD) 287.

Section 34-Common intention-Unless the Court is told what the exact words were used by the accused person it cannot act on the inference supplied by the witnesses There is no evidence on record that the appellant Nos. 2-4 had an intention to cause the death of Nandalal. Amar Kumar Thakur vs State 40 DLR (AD) 147.

Sections 34 and 109- The conviction of appellant Nos. 2-4 upon the evidence on record for the offence of murder with the application of section 34 or 109 Penal Code is not sustainable in law. Amar Kumar Thakur vs State 40 DLR (AD) 147.

Sections 34/120A-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 cons- piracy. 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 State62 DLR (AD) 1.

Sections 34 & 149-Constructive criminality -Section 149, like section 34, does not create and punish any substantive offence. These sections may be added to the charge of any substantive offence. Without the charge for any substantive offence, no charge under either of them can be conceived of. Abdus Samad vs State 44 DLR (AD) 233.

Sections 34 & 149-Common intention and common object-Section 34 provides that when a criminal act is done by several persons in furtherance of their common intention each of them is liable for that act in the same manner as if it was done by him alone. Section 149 postulates an unlawful assembly and commission of an offence by any of its members in prosecution of the common object of such an assembly. Abdus Samad vs State 44 DLR (AD) 233.

Sections 34 & 149- Scope of the two sections-Both sections deal with combination of persons to become punishable as sharers in an offence. Basis of a case under section 34 is the element of participation, and that of one under section 149 is membership of an unlawful assembly. The scope of the latter is wider than that of the former. Abdus Samad vs State 44 DLR (AD) 233.

Section 34-When the accused himself admits to his own complicity in the commission of the offence, even though he did not take part in the violence which to led to the death of the victim, he cannot escape his liability which is imputed upon him by section 34 of the Penal Code. Clearly the petitioner and the co-accused all went to the place of occurrence with the common intention of killing the victim, and he took part by standing guard while the others dealt the fatal blows. Mishon Chandra Das vs State, 68 DLR (AD) 392

Sections 34, 35, 302 and 304-Each case should be decided on the facts proved by the prosecution and no case can be an authority on facts. Whether the accused does have previous consent or common intention or particular knowledge depends upon the facts proved by the prosecution. It is always a question of fact as to whether the accused shared a particular knowledge or intent. In deciding the said question, one must look for a common intention and what that intention is. Khalil Peada vs State, 70 DLR (AD) 126

Section 34 and 120B-If on an analysis of the evidence on record if it is found that the prosecution has proved that there was conspiracy to kill the leaders and in pursuance thereof, the killing was perpetrated, all accused persons could not avoid criminal liability. If, however, the evidence of record proved that there was no conspiracy but, the killing was committed by several persons in furtherance of common intention of all, all the accused persons cannot be convicted because the common intention requires participation in the crime. (SK SINHA, JAGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Sections 34 and 302-The judgment and order of conviction and sentence passed by the trial Court are not tainted or perversed, rather the impugned judgment of the High Court Division in acquitting all the convicts is upon misreading of the testimony which cannot be sustained in the eye of law.

The Appellate Division observed that the learned Judges of the High Court Division has failed to consider the above mentioned testimonies of witnesses as discussed hereinabove. Therefore, the Appellate Division is of the view that the judgment and order of conviction and sentence passed by the trial Court are not tainted or perversed, rather the impugned judgment of the High Court Division in acquitting all the convicts is upon misreading of the testimony which cannot be sustained in the eye of law. From the deposition of P.Ws. 2, 3, 4 and 14 it is proved beyond all the reasonable doubt that the accused Tutul and Badal in a pre-planned manner abducted and killed Rony in front of P.W. 2 Badsha. Therefore, the judgment and order so far it relates to acquitting the accused Badal and Tutul is liable to be set aside. However, the Appellate Division is of the opinion that justice would be best served to commute the sentence of death to life imprisonment considering the age of the accused. Fazlur Rahman Badal and Monir Hossain Tutul. State -Vs.-Fazlur Rahman alias Badal (Criminal) 16 ALR (AD) 19-29

Sections 34 and 302 read with Cr. PC

Section 342-Natural and Competent witness.

The witnesses recognised the assailants by electric light. Naturally, the inhabitants of his household would be the persons who would witness the occurrence from close quarters. The wife, children and daughter-in-law of the victim are the most natural and competent wit- nesses in the facts and circumstances of the case.

The Appellate Division observed that the fact that the occurrence took place at 8 O'clock at night when the victim had just returned home and the appellant and other accused persons came to the house of the victim and called him outside and the vic- tim was shot by the appellant a few feet away from his gate. The witnesses recognised the assailants by electric light. Naturally, the inhabitants of his household would be the persons who would witness the occurrence from close quarters. The wife, children and daughter-in-law of the victim are the most natural and competent witnesses in the facts and circumstances of the case. Appellate Division note that P.W.7, who is a local shopkeeper, deposed that he came to the place of occurrence on hearing shots, saw the victim, who had been shot and also saw the appellant and co-accused Junu running away from the He place of occurrence. He stated that he did not know the names of the other assailants. The evidence of P.W.7 is thus independent corroborative evidence of the occurrence. Kamal Exol Kamal Vs. The State (Criminal) 12 ALR (AD) 15-20

Sections 34, 35, 302 and 304 -It is now settled that each case should be de- cided on the facts proved by the prosecu- tion and no case can be an authority on facts. Whether the accused does have previous concert or common intention or particular knowledge depends upon the facts proved by the prosecution. It is al- ways a question of fact as to whether the accused shared a particular knowledge or intent. In deciding the said question, one must look for a common intention and what that intention is. It is not ne- cessary that there should be an appreci- able passage of time between the forma- tion of intent and the act of common in- tention taking place as it may be formed at spur of the moment. The next ques- tion is whether the accused possessed the knowledge that the injuries they were intending to cause were sufficient in the ordinary course of nature to cause death. When these circumstances are found and death has in fact been caused by injuries which were intended to be caused and are sufficient in the ordinary course of nature to cause death, the offence is murder.

The Appellate Division held that in this case, that the offence is not murder because of the fact that secondary factor supervened and the cause of death is "gas gangrene." The facts proved by the prosecution are that the accused had shared common inten- tion of causing the injuries and they used sharp weapons and severed one leg. These facts lead to believe that the accused per- sons caused the injuries with an intention of causing grievous injuries which were likely to cause death. Therefore, part I of section 304 is applicable which provides that the act by which the death is caused is done with intention of causing death or such bodily injury as is likely to cause death as had happened in this case. The High Court Division fell in an error in finding the accused guilty under sections 302/35 and it committed further error in awarding imprisonment for life to all the accused. If section 35 attracts, their sentences will be different. The conviction of the appellants is altered to one under section 304, part I read with section 34 of the Penal Code, and thereby he is sentenced to 12 years rigorous imprisonment with a fine of taka fifty thousand each to be paid within three months from date, in default, to suffer rigorous imprisonment for two years more. The fine if realized would be paid to the victim's widow or in her absence to the children. The appeals are dis- missed with the above modification of the conviction and sentence. Khalil Peada and others -Vs.- The State (Criminal) 12 ALR (AD) 77-84

Sections 34 and 302-Witnesses were not named as eye-witnesses in the FIR but that they were examined as eye-wit- nesses and that inclusion of P.Ws. 2 and 3 as eye-witnesses was nothing but a sub- sequent embellishment of the prosecu- tion case.

P.Ws. 2 and 3 are the family members of the deceased and that they had not been named in the FIR as witnesses and that these witnesses were examined after 4 months 15 days of the occurrence although the I.O. had the opportunity to examine them much earlier. The High Court Division noted that the trial Court should not have relied upon P.Ws. 2 and 3.

The Appellate Division considered that P.Ws. 2 and 3 were not named as eye-wit- nesses in the FIR but that they were ex- amined as eye-witnesses and that inclusion of P.Ws. 2 and 3 as eye-witnesses was nothing but a subsequent embellishment of the prosecution case. The High Court Divi- sion found that in the FIR, it was stated that P.Ws. 8, 13, 10 and 5 had witnessed the occurrence but that P.Ws. 8, 10 and 5 did not give any incriminating evidence against the respondents and that the evidence of P.W. 13 was discarded by the Court below as well as by it. The High Court Division also found that P.Ws. 2 and 3 are the fam- ily members of the deceased and that they had not been named in the FIR as witnesses and that these witnesses were examined after 4 months 15 days of the occurrence although the I.O. had the opportunity to examine them much earlier. The High Court Division noted that the trial Court should not have relied upon P.Ws. 2 and 3. Therefore, the High Court Division came to the conclusion that the prosecution miser- ably failed to prove its case against the res- pondents and accordingly, acquitted them of the charge levelled against them. The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accor- dingly, this criminal petition is dismissed. The State. Vs. Jahangir Hossin Boga and others. (Criminal) 13 ALR (AD) 1-3

Sections 34 and 302 -Benefit of doubt

Though the prosecution examined as many as 34 witnesses, excepting one only none of the other prosecution witnesses is the eye witness of the alleged occur- rence. The only witness who claimed that she saw the occurrence could not iden- tify any of the accused persons before court or before the investigating author- ity.

The Appellate Division observed that it appears that though the prosecution ex- amined as many as 34 witnesses, excepting one only none of the other prosecution wit- nesses is the eye witness of the alleged oc- currence. The only witness who claimed that she saw the occurrence could not iden- tify any of the accused persons before court or before the investigating authority. The confessional statement of accused Md. Hossain Kabir Pavel also appears to be not a confessional statement at all, inasmuch as, in this confessional statement the con- fessing accused did not state anything at all to the effect that he also had involvement in the alleged murder and took any part in the alleged murder. This is an exculpatory confessional statement. The High Court Division, on thorough analysis and consid- eration of all these evidence adduced by the prosecution, rightly found that the prose- cution could not prove the charge of mur- der against the accused persons beyond all reasonable doubt and as such all the 3 ас- cused persons were entitled to get benefit of doubt. Appellate Division finds no error in the above findings and decision of the High Court Division. Rather, on going through the evidence on record Appellate Division also finds that the High Court Di- vision rightly found that the charge against all the 3 accused persons were not proved by any cogent evidence and as such the High Court Division has legally acquitted all the 3 accused persons. The State Vs. Md. Hossain Kabir Pa- vel (Criminal) 10 ALR (AD) 231-233

Section 34 and 302-The sentence of death is commuted imprisonment for life.

The Appellate Division observed that all the eye witnesses to the occurrence cate- gorically stated about only one blow given by the appellant, Muzibur Rahman on the head of the deceased and none said about any second attempt by him to cause further injuries or any other overt act. Considering the above aspects of the case, Appellate Division is of the view that justice would be best served if the sentence of death awarded to the appellant by the learned Additional Sessions Judge and confirmed by the High Court Division is commuted to imprisonment for life. Muzibur Rahman and others. -Vs.- The State (Criminal) 8 ALR (AD) 182-185

Section 39 and 491

The complainant was not the one who is neither a lunatic nor a bodily incapable person or has been suffering from a disease for which he has entered into a contract with the appellant to take care of him and in that view of the matter, the offence alleged in the complaint does not attract section 491 of the Penal Code. .....Prof. Dr. Motior Rahman =VS= The State & another, (Criminal), 2016-[1 LM (AD) 587]

Section 39 and 491

Section 39 of the Penal Code defines the term voluntary, means a willful omission to attend on the employer. Such willful omission must arise from something more than mere careless or negligence. It must be an omission of which the employee is conscious though he may not advert to the consequence. The legal contract must take shape of service for the helpless master or employer, for example, a curator of a lunatic, or a doctor and a nurse employed in the hospital, who may render himself liable to the penalty under this section if he agreeing to look after the patient, voluntarily deserts the patient or omits to attend the patient. The complainant was not the one who is neither a lunatic nor a bodily incapable person or has been suffering from a disease for which he has entered into a contract with the appellant to take care of him and in that view of the matter, the offence alleged in the complaint does not attract section 491 of the Penal Code. …Prof. Dr. Motior Rahman vs. The State & anr, (Criminal), 3 SCOB [2015] AD 1

Section 39 and 491

Sections 45 & 53-An imprisonment for life, in terms of section 53 read with section 45 of the Penal Code meant imprisonment for the rest of life of the prisoner. A convict undergoing life imprisonment has no right to claim remission. Ataur Mridha @ Ataur vs State. 69 DLR (AD) 214

Sections 45 ,53 , 57 & 302

The Constitution of Bangladesh, 1972

Article 49 read with

The Code of Criminal Procedure, 1898

Sections 35A & 401 read with

The Penal Code, 1860

Sections 45 ,53 , 57 & 302 read with

The Bengal Jail Code, volume 1(Part I)

Chapter XXI Rule 751 (f)

End of convicts life as the alternative to death sentence can only be exercised by the High Court Division and this court and not by any other inferior tribunal or the executive. Accordingly, we conclude our opinion as under:-

(1) A sentence of death awarded to an offender under section 302 of the Penal Code is the rule and life imprisonment is an exception. The court may commute death sentence to life imprisonment of a prisoner on extenuating circumstances and in that case it must assign reasons therefor.

(2) Life imprisonment within the meaning of section 53 read with section 45 of the Penal Code means imprisonment for rest of the life of the convict.

(3) If the High Court Division or this court commutes a sentence of death to imprisonment for life and direct that the prisoner shall have to suffer rest of his natural life, such type of cases would be beyond the application of remission.

(4) Section 57 of the Penal Code is only for the purpose of working out the fractions of the maximum sentence fixed for the principal offence, that is to say, if such provision is not made, it would have been impossible to work out the fractions of an indefinite term.

(5) Remission contained in Chapter XXI of the Bengal Jail Code, volume 1 (Part I) are administrative instructions regarding various remissions.

(6) If an offender pleads guilty at the initial stage of the trial of the case in respect of an offence punishable with death or imprisonment for life, the court/tribunal shall take lenient view on the question of awarding sentence, but in such cases, the court shall ascertain as to whether the offender pleading guilty upon understanding the offence charged with against him before accepting such plea. Provided however that the court is not bound to accept all pleas of guilty and award the minimum sentence.

(7) In exercise of power under article 49 of the constitution the President has power to grant pardon, reprieves and respite and to remit, suspend or commute any sentence even after the commutation of sentence by this court or the High Court Division. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

Sections 45, 53, 55, 57

The Penal Code, 1860

Sections 45, 53, 55, 57 and

The Code of Criminal Procedure

Section 35A

Imprisonment for life 30 years– The review petition is disposed of with the following observations and directions by majority decision:

1. Imprisonment for life prima-facie means imprisonment for the whole of the remaining period of convicts natural life.

2. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure.

3. However, in the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code of Criminal Procedure.

Considering the facts and circumstances, the sentence awarded to the review petitioner is modified to the extent that he is sentenced to suffer imprisonment for life and to pay fine of taka 5000/-, in default, to suffer rigorous imprisonment for 2(two) months more. (Majority view: Per Hasan Foez Siddique, J, Author Judge). ...Ataur Mridha =VS= The State, (Criminal), 2021(1) [10 LM (AD) 527]

Section 45

The condemned prisoner has suffered in the condemned cell for over 23 years and thus the length of period can be taken as one of the reasons to commute the sentence of death to one of imprisonment for life. In the facts and circumstances discussed above, we are of the view that ends of justice will be sufficiently met if the sentence of death imposed upon convict condemned prisoner Moksed is commuted to one of imprisonment for life. We are of the view that the law as enunciated in section 45 of the Penal Code is such that the sentence of life signifies the whole of the prisoner’s natural life. He will, nevertheless, get whatever benefit that the law affords to him under the provisions of the Code of Criminal Procedure, Prison Act and Jail Code. ...Tutul =VS= The State, (Criminal), 2021(1) [10 LM (AD) 610]

Sections 45, 49, 53 & 57

Imprisonment for life–

The word `imprisonment' has been substituted for the word 'transportation' by Ordinance No.XLI of 1985. When framing the Penal Code, the draftsmen undoubtly intended this sentence to remain as one whereby those on whom it was passed should be sent over seas. This can be inferred if the history of the sentence is examined that when the first enacted, `transportation' means transportation beyond seas, although in India it has been substituted in 1955. Section 45 defines the word 'life' means 'the life of a human being unless the contrary appears from the context'. So if no contrary appears from the context 'life' means the life of a human being. The meaning of the words 'year' and 'month' have been defined in section 49, which means 'the year or the month is to be reckoned according to this British calendar'. Here the expression 'reckoned' is used which will be very significant for resolving the issue, and in calculating the period of sentence, a 'year' means its length i.e. about 365 days, 5 hours, 48 minutes and 51.6 seconds. To do away with the odd hours, the new style of calendar has adopted the average length is about 365 days and every fourth year of 366 days (24 Geo.11.c25). A sentence for one calendar month does not imply imprisonment for a fixed number of days. It may vary according to the month in which the sentence is passed. If the imprisonment began on the 30th of a month it will expire at midnight of the 29th of the following month, if the following month is not February, in which case it will expire on its last day whatever be the total number of days served by the prisoner. Section 53 of the Penal Code sets out five different punishments to which offenders are liable to suffer under the provisions of the Penal Code. The first sentence is death; the second is imprisonment for life; the third was omitted by the criminal law (Extinction of Discriminatory Privileges) Act, 1949; the fourth is imprisonment of rigorous or simple, the fifth is forfeiture of property and the sixth is fine. In the explanation it is provided that in the punishment of 'imprisonment for life' the 'imprisonment shall be rigorous'. So all imprisonment for life shall be rigorous imprisonment whether it is mentioned in the judgment or not. Reading sections 45 and 53 conjointly there is no doubt that a sentence of life imprisonment means a sentence of rigorous imprisonment for the whole of the remaining period of the convicted person's natural life. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

Section 45 & 57

Meaning of life sentence–

The way it has been interpreted, the word “life” does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22.5 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial. .....Rokia Begum =VS= The State, (Criminal), 2016-[1 LM (AD) 571]

Sections 45, 53, 55 and 57

Penal Code

Sections 45, 53, 55 and 57 with

Sections 35A and 397 of the Code of Criminal Procedure:

If we read Sections 45, 53, 55 and 57 of the Penal Code with Sections 35A and 397 of the Code of Criminal Procedure together and consider the interpretations discussions above it may be observed that life imprisonment may be deemed equivalent to imprisonment for 30 years. The Rules framed under the Prisons Act enable a prisoner to earn remissions- ordinary, special or statutory and the said remissions will be given credit towards his term of imprisonment. (Majority view) (Per Mr. Justice Hasan Foez Siddique, J) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1

Sections 45, 53, 55 and 57

In view of the facts and circumstances, the discussion made above the review petition is disposed of with the following observations and directions:

1. Imprisonment for life prima-facie means imprisonment for the whole of the remaining period of convicts natural life.

Section 45, 57

Meaning of life sentence:

The way it has been interpreted, the word “life” does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22½ years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial. …Rokia Begum Vs. The State, (Criminal), 4 SCOB [2015] AD 20

Sections 53 & 53A-Except the meaning of the word 'life' no definition of 'imprisonment for life' is used in section 53 of the Penal Code. Penal Code is totally silent regarding the duration of 'transportation for life'. This ambiguity has been clarified by insertion of section 53A in the Penal Code by Ordinance No. XLI of 1985. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214

Section 53A-The insertion of section 53A makes it clear that the expression is used to be presumed that it is 'imprison- ment for cessation of the natural life of the prisoner. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214

Sections 53 & 57- Section 53 of the Penal Code does not in any way limit the sentence of imprisonment for life. Section 57 also does not in any way limit the sentence of imprisonment for life to a term of thirty years. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214

Sections 53 & 54

The Code of Criminal Procedure, 1898

Sections 35A & 401 r/w

Penal Code, 1860

Sections 53 & 54

It cannot be applicable in respect of an offence which is punishable with death– Section 35A of the Code of Criminal Procedure is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discretionary power of the court. It cannot be applicable in respect of an offence which is punishable with death. Though the word 'only' is used in section 35A, the legislature without considering section 401 of the Code of Criminal Procedure and section 53 of the Penal Code has inserted the word `only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the government only. .....Ataur Mridha =VS= The State, [3 LM (AD) 513]

Sections 54

Government has power to commute the sentence of death imposed to a prisoner under section 54 of the Penal Code. It provides "In every case in which sentence of death shall have been passed, the Government may, without consent of the offender, commute the punishment for other punishment provided by this Code.' In case of a life sentence offender, the government reserves the right to 'commute the punishment for imprisonment of either description for a term not exceeding twenty years' (S.55). The word 'twenty' has been substituted for the word 'fourteen' by Ordinance No.XLI of 1985. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

Section 54-If an offender is sentenced to imprisonment for life, the government may without the consent of the offender commute the sentence of impri- sonment of either description for a term not exceeding twenty years.

The Appellate Division held that Gov- ernment has power to commute the sen- tence of death imposed to a prisoner under section 54 of the Penal Code. It provides "In every case in which sentence of death shall have been passed, the Government may, without consent of the offender, commute the punishment for other punish- ment provided by this Code.' In case of a life sentence offender, the government re- serves the right to 'commute the punishment for imprisonment of either description for a term not exceeding twenty years' (S.55). The word 'twenty' has been subs- tituted for the word 'fourteen' by Ordin- ance No. XLI of 1985. Ataur Mridha @Ataur -Vs. The State (Criminal) 9 ALR (AD) 162-188

Section 54-A prisoner sentenced to imprisonment for life has no right to claim remissions. Ataur Mridha @ Ataur -Vs. The State (Criminal) 9 ALR (AD) 162-188

Section 55-Whether if prisoner's sentence of imprisonment for life is till the expiry of the natural life, the State has power to remit the sentence after the expiry of twenty years in prison in view of section 55 of the Penal Code. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214

Sections 57, 302/109

The Explosive substances Act

Sections 3/6 r/w

The Special Powers Act

Section 25D r/w

The Penal Code

Sections 57, 302/109

Abetment of the offence– We are satisfied that accused respondent Amjad Ali @ Md. Hossain @ Babu has been rightly found guilty by the special tribunal as well as by the learned Sessions Judge for abetment of the offence. However, since he did not directly participate either in the explosion of bomb or in the murder, the learned Sessions Judge is not justified in awarding him the death sentences in both the charges. As per our sentencing rules which provide that the abettor should not be equated with the principal offender so far as regards awarding the sentence although there is no legal bar to award the same sentence. We convert the conviction of the accused respondent Mohammad Hossain to one under sections 3/6 of the Explosive substances Act read with section 25D of the Special Powers Act and sentence him to imprisonment for life. We also award him sentence of imprisonment for life under sections 302/109 of the Penal Code. It should be borne in mind that imprisonment for life within the meaning of section 57 of the Penal Code means imprisonment for the whole of the remaining period of the convicted person's natural life. ...State =VS= Amjad Ali @ Md Hossain @ Babu, [10 LM (AD) 408]

Sections 57, 45, 49 and 53-The true meaning of the words 'imprisonment for life'.

The Appellate Division held that the word 'imprisonment' has been substituted for the word 'transportation' by Ordinance No. XLI of 1985. When framing the Penal Code, the draftsmen undoubtly intended this sentence to remain as one whereby those on whom it was passed should be sent over seas. This can be inferred if the history of the sentence is examined that when the first enacted, 'transportation' means transportation beyond seas, although in India it has been substituted in 1955. Section 45 defines the word 'life' means 'the life of a human being unless the con- trary appears from the context'. So if no contrary appears from the context 'life' means the life of a human being. The meaning of the words 'year' and 'month' have been defined in section 49, which means 'the year or the month is to be reck- oned according to this British calendar'. Here the expression 'reckoned' is used which will be very significant for resolving the issue, and in calculating the period of sentence, a 'year' means its length i.e. about 365 days, 5 hours, 48 minutes and 51.6 seconds. To do away with the odd hours, the new style of calendar has adopted the average length is about 365 days and every fourth year of 366 days (24 Geo.11.c25). A sentence for one calendar month does not imply imprisonment for a fixed number of days. It may vary accord- ing to the month in which the sentence is passed. If the imprisonment began on the 30th of a month it will expire at midnight of the 29th of the following month, if the fol- lowing month is not February, in which case it will expire on its last day whatever be the total number of days served by the prisoner. Section 53 of the Penal Code sets out five different punishments to which of- fenders are liable to suffer under the provi- sions of the Penal Code. The first sentence is death; the second is imprisonment for life; the third was omitted by the criminal law (Extinction of Discriminatory Privileges) Act, 1949; the fourth is imprisonment of rigorous or simple, the fifth is for- feiture of property and the sixth is fine. In the explanation it is provided that in the punishment of 'imprisonment for life' the 'imprisonment shall be rigorous'. So all imprisonment for life shall be rigorous imprisonment whether it is mentioned in the judgment or not. Reading sections 45 and 53 conjointly there is no doubt that a sen- tence of life imprisonment means a sen- tence of rigorous imprisonment for the whole of the remaining period of the con- victed person's natural life. Ataur Mridha @Ataur -Vs. The State (Criminal) 9 ALR (AD) 162-188

Section 57-The object and purpose of this section is for working out the fractions of indefinite imprisonment term fixed for the principal offence. Say, sections 65, 116, 119, 120, 511 and some other about forty plus sections of the Penal Code which fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214

Section 57-A plain reading of this provision does not show that life imprisonment shall be for thirty years. It says, in calculating the fractions of terms of punishment, that is, it is limited to calculating the fractions of terms of imprisonment and while calculating fractions, life imprisonment is to be reckoned as equivalent to imprisonment for thirty years. It does not say that life imprisonment means imprisonment for thirty years for all purposes. It cannot be held or meant to make life imprisonment is equivalent to imprisonment for thirty years for all purposes. Under no stretch of imagination it can be said that life imprisonment means thirty years in total period in prison to be served by a prisoner. It means a sentence of imprisonment for whole of the remaining period of the convicted persons natural life. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214

Section 57-Section 57 of the Penal Code is limited in its scope and cannot be held to make life imprisonment equivalent to imprisonment for thirty years for all purposes. Mohibur Rahman vs State, 69 DLR (AD) 330

Section 84 -The main ingredient of section 84 of the Penal Code is: the defence is to prove that the accused was of unsound mind at the time of occurrence

The Appellate Division held that the main ingredient of section 84 of the Penal Code is: the defence is to prove that the accused was of unsound mind at the time of occurrence which the defence failed to prove in this case. Thus as the plea of insanity or unsoundness of mind of the accused respondent at the time of occurrence (underlined for emphasis) is not clearly and distinctly proved, the accused respondent, thus cannot get benefit of the same nor benefit as provided under sections 469 and 470 of the Criminal Procedure Code. Moreover on acquitting the accused respondent the High Court Division erred in law in not taking appropriate step under section 471 of the said Code. State -Vs. Abu Hanifa @ Hanif Uddin son of Md. Musa Ali, Village- Ba- rak, PS-Haluaghat, District Mymensing. (Criminal) 18 ALR (AD) 47-54

Section 84

The Penal Code, 1860

Section 84

The Evidence Act, 1872

Section 105

Accusedrespondent 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 accusedrespondent 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 84

Section 84 of the Penal Code and plea of unsoundness of mind;

On a plain reading of the aforesaid provisions of law and 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 accusedrespondent 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. …State Vs. Abu Hanifa @ Hanif Uddin, (Criminal), 13 SCOB [2020] AD 17

Sections 96-106-The right of private defence of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right is an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandaker Saiful Islam vs State 50 DLR (AD) 126.

Section 100

Right of Private Defence

The evidence in the case must be such that the informant party was carrying on or was about to carry on an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandker Saiful Islam Vs. The State 6 BLT (AD)-84

Section 100-Prosecution having failed to explain satisfactorily the two injuries on the back of the accused Shahjahan measuring 4" x 1" x cavity deep and 3.5" x 1.5" x muscle deep supported by medical certificate the plea of right of private defence of life of the accused Shahjahan cannot be brushed aside. State vs Shahjahan 53 DLR (AD) 58.

Section 107-Section 148 is attracted only when a rioter is armed with a deadly weapon. A person can not be convicted under this section unless he actually had a dangerous weapon in his hand. Only the actual persons who are armed with a deadly weapons would be liable for the aggra- vated offence of rioting. Mukit vs State63 DLR (AD) 58.

Sections 107, 302 & 109-There was rivalry between deceased Moulana Abdul Quader and accused Mobile Quader and his brother-Lawrence over Mamar Bazar at Dugachhi, Kum beneath the bridge near Mamar Bazar and the Chairmanship of the Managing Committee of Kazir Pagla High School and that unerringly proved the motive behind the killing of Moulana Abdul Quader and that is a very strong circumstance also to infer as to the involvement of accused Mobile Quader with the killing of deceased Moulana Abdul Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 107, 109 and 120B

In order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy–

Offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place inpursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it.... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

Section 107

Abetment— Sufficient materials necessary for framing charge of abetment—

No charge of abetment against any accused can be framed without sufficient incriminating materials on record. The State Vs. Khondaker Md. Moniruzzaman- 1, MLR (1996) (AD) 369.

Section 107

Extent of penalty of abettor—can not be higher than the Principal accused—

The law clearly provides that the punishment to be awarded to the abettor must not be higher than that of the principal accused. Ashrafuddin Sekandar (Major Rtd.) and others Vs. The State— 3,MLR(1998) (AD) 164.

Section 107, 109 and 120B

Offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it. (Surendra Kumar Sinha, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1

Section 109

Abetment

Abatement is an offence under the Penal Code and a person may be charged for abetting an offence punishable under a special law even though the word ‘abetment may not be mentioned as an offence under the Special Act. Hussain Mohammad Ershad, former President Vs. The State, 14BLD(AD)178

Section 109

Offence of abetement–

In order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement there must be evidence that an act was abetted and that it was abetted by the person charged with. The act abetted must, moreover, amount to a crime, and in order to connect the abettor with the crime, it is not sufficient to prove that he had taken part in those steps of the transaction which are innocent, but it must also be proved that he had deliberately taken part in those steps of the transaction which constituted an offence. Section 109 may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by illegal omission.... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

Section 109

Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. .....Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9]

Section 109

The Penal Code, 1860

Section 109 r/w

The Prevention of Corruption Act, 1947

Section 5(1), 5(2)

The High Court Division has come to a finding that it appeared from the confession of co-accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin Al Mamun to ensure that the `JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Prevention of Corruption Act, 1947. The High Court Division has held that in the instant case, the issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the `JVA' . The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. .....Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2017 (2)– [3 LM (AD) 177]

Section 109

Anti-Corruption Commission Act, 2004

Section 27 r/w

The Prevention of Corruption Act, 1947

Sections 5(1)(e) and 5(2)

The Penal Code

Section 109

From the testimonies it is luminous that the evidence of prosecution are so incompatible, improper and unreasonable which are not only reprehensible, rather, full of dissonance and totally blameworthy. The prosecution case, therefore, cannot be believable.

Carefully gone through the judgment of the trial Court and the judgment of the High Court Division. On perusal of the judgment of the High Court Division, we find that the High Court Division has elaborately discussed the evidences and considered the facts and circumstances of the case, recorded the acquittal in accordance with law. This petition is dismissed. ...Anti-Corruption Commission =VS= Md. Lutfor Rahman, [10 LM (AD) 510]

Section 109

Anti-Corruption Commission Act, 2004

Section 27(1) r/w

The Penal Code

Section 109

The defence questioned the legality of the sentence of the convict petitioner on the ground that the initiation of proceeding against him is illegal and as such all subsequent proceedings are also illegal.

The defence took another plea that the authority did not assess the market value of furniture, seized from his house, properly and rather the assessment has been made on the basis of the market rate prevailing after 14 years. It appears that the assessment of such furniture has been made by the engineer of Public Works Department (PWD) who is the authorised and appropriate person to assess the market value of that furniture.

The defence took another plea that during the pendency of Rule Nisi issued in Writ Petition No. 1190 of 2008, proceeding of the criminal case is illegal, but the defence failed to produce any stay order obtained in that Rule Nisi in proceeding of such case. As a result the submission of the learned advocate for the defence also does not find any legal basis.

Findings and decision arrived at by the High Court Division being based on proper appreciation of fact and law the same do not call for any interference by this Division. This criminal petition for leave to appeal is dismissed. …Mohammad Osman Gani =VS= The State, [8 LM (AD) 354]

Section 109, 161

The Anti-Corruption Commission Act, 2004

Section 27(1) read with

The Penal Code, 1860

Section 109, 161 read with

The Prevention of Corruption Act, 1947 Section 5(2)

Bail– The judgment in both the appeals are set aside but the appellate court, in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. ...Anti-Corruption Commission =VS= Barrister Mir Mohammad Helal Uddin, (Criminal), 2020 [9 LM (AD) 681]

Section 109

The Code of Criminal Procedure, 1898

Section 561A

The Anti-Corruption Commission Act, 2004

Section 26(2), 27(1) r/w

The Penal Code, 1860

Section 109

The Emergency Power Rules, 2007

Section 15(D)(5)

Appellate Division is of the view that the petitioner was a fugitive in the eye of law when she filed the application under section 561A of the Code of Criminal Procedure. Direction of the High Court Division in the concluding portion of the impugned judgment and order that: “However, since at the time of issuing the Rule this Court dispensed with the appearance of the petitioner, she should be allowed to appear before the concerned Court without any hindrance. The petitioner is directed to appear before the concerned Court within 08(eight) weeks from the date of taking cognizance of the offence, if any so that she can defend herself in accordance with law.” -is outside the purview of law and hence struck off. Thus the impugned judgment and order is modified with the above observation. Accordingly, the criminal petition for leave to appeal is dismissed. .....Dr. Zubaida Rahman, wife of Tarique Rahman =VS= The State, (Criminal), 2022(1) [12 LM (AD) 523]

Section 109

Offence of abetement:

In order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement there must be evidence that an act was abetted and that it was abetted by the person charged with. The act abetted must, moreover, amount to a crime, and in order to connect the abettor with the crime, it is not sufficient to prove that he had taken part in those steps of the transaction which are innocent, but it must also be proved that he had deliberately taken part in those steps of the transaction which constituted an offence. Section 109 may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by illegal omission. (Surendra Kumar Sinha, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1

Section 109-Bail in a pending appeal- The matter of granting bail by the High Court Division, during the period of emergency, in a pending appeal filed by the convict who has been convicted and sentenced under the provision of Anti-Corruption Commission Act, 2004 in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. Government of Bangladesh vs Sabera Aman 62 DLR (AD) 246.

Section 109- Section 109 of the Penal Code is included in paragraph 'Gha' of the sche- dule to the ACC Act, 2004 for abetment to any offence under the schedule is committed by any sort of involvement or complicity. Such offence could never be intended or could be a substantive offence. The High Court Division held that no such offence of abetment could be conceived of in respect of an offence under section 26(2) or 27(1) of the ACC Act, 2004. Accordingly, lodging of FIR, taking cognizance, initiation of criminal proceedings against the writ-petitioners are unwarranted, unauthorized and without juris- diction. Anti-Corruption Commission vs Shamima Begum 262 DLR (AD) 77.

Section 109-In the absence of any state- ment of assets; there was no scope to submit any explanation for acquisition of assets there was no scope for him to submit any explanation for acquisition of the assets. No citizen could be arraigned for such a severe offence in the absence of service of any notice or order for explaining the source of income. Offence of abetment under section 109 equally could not be conceived of with regard to such an offence. Anti-Corruption Commission vs Nargis Begum 62 DLR (AD) 279.

Section 109-Mere act of buying any pro- perty at a lower price or selling at a higher price is no offence, unless the very transaction itself is banned by any law. Mehedi Hasan vs State 63 DLR 483.

Sections 109 and 111-There is no dis- tinction between 'principal in the first degree' and 'principal in the second degree. Under section 111 of the Penal Code an abettor is liable for a different act if that was probable consequence of the abetment. This is applicable to the accused guarantor. Islami Bank Bangladesh Ltd vs Md Habib 55 DLR (AD) 19.

Section 109-Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. Anti-Corruption Commission vs Tasmima Hossain, 69 DLR (AD) 290

Section 109-Distinction of NIKO case-It appears from the confession of co- accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin-al-Mamun to ensure that the 'JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Act. The issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Act, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the 'JVA'. The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. The case is quite distinguishable from the other case which was already quashed by the High Court Division. Begum Khaleda Zia vs Anti-Corruption Commission, 69 DLR (AD) 181

Section 109-Abetment-Prima- facie allegation of abetment regarding manipu-lation of the tender for sale of the abandoned property has been disclosed from materials collected by the prosecu- tion. Therefore, the prosecution should not be debarred from proving the allegations of abetment by evidence which may be oral, documentary and circumstantial in nature. ACC vs Mehedi Hasan, 67 DER (AD) 137

Section 109-Abetment-Abetment is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence. ACC vs Mehedi Hasan, 67 DLR (AD) 137

Section 120A-Bazlu made the confessional statement after his arrest and that too after the alleged criminal cons- piracy 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 120A-Criminal conspiracy -Conduct of the accused both before and after the commission of offence is also relevant to prove the charge. No written or definite agreement is necessary to constitute a conspiracy-its existence being generally a matter of inference from the acts of the accused. It is sufficient to constitute the offence, so far as the combination is concerned, if there is a meeting of the minds, a mutual implied understanding or tacit agreement, all the accused working together, is with a single design, for the accomplishment of the common purpose. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Sections 120A, 120B & 302/34-The witnesses deposed disclosing involvement of petitioner Mamun in the meeting of conspiracy and the occurrence of bomb blast resulting in the murder of the two Judges In his examination under section 342 CrPC he admitted to have com- mitted the offence and he felt proud being able to kill the judges according to the premeditated plan of his leader-His confessional statement and admission before the Court coupled with evidence on record proved the case against him: Per Amirul Kabir Chowdhury J dictating the Full Court Judgment. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36.

Section 120A and 120B

The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts–

The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable. ... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

Section 120A and 120B

The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable. ... (Surendra Kumar Sinha, J) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1

Section 120B

Criminal conspiracy– It is well settled that in order to prove a criminal conspiracy which is punishable under Section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference agreement between two or more persons to commit an offence.” (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386]

Section 120B

Petitioner Mamun along with oth petitioners, held meeting and conspired blast bomb upon the Judges and others « the administration resulting in the murder the two Judges and petitioner Mamun bei one of them, his action comes within tK mischief of offence punishable und Section 120B of the Penal Code as well. Shaiakh Abdur Rahman & Ors Vs. The State 15 BLT (AD)-326

Sections 120B and 302/34

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, [10 LM (AD) 647]

Section 120B

Criminal conspiracy– This Court observed that a conspiracy is a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose common between them. A criminal conspiracy consist not merely intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect the very plot of act itself, and the act of each of the parties capable of being enforced, if lawful, possible if for a criminal object or for the use of criminal means. The elements of criminal conspiracy are (a) an agreement between two or more persons, (b) to do an illegal act, or (c) to do a legal act by illegal means, and (d) an overt act done in pursuance of the conspiracy. A charge of criminal conspiracy for an offence under section 120B of the Penal Code, the prosecution need not prove that the perpetrators expressly agree to do or caused to be done the illegal act; the agreement may be proved by necessary implication. ...Major Md. Bazlul Huda (Artillery) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 581]

Section 120B- Conspiracy In order to constitute the offence of conspiracy, there must first be a combining together of two or more persons in the conspiracy; secondly, an act or illegal omission must take place in pursuance of that conspiracy in order to the doing of that thing. It is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Therefore, I find that each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. (Per SK Sinha J Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 120B-A conspiracy is a matter of inference deduced from certain criminal acts of the parties accused done in pursuance of apparent criminal purpose common between them. A criminal conspiracy consists not merely intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect the very plot of the act itself, and the act of each of the parties capable of being enforced, if lawful, possible if for a criminal object or for the use of criminal means. (Per SK Sinha J). Major Bazlul Huda vs State 62 DLR (AD) 1.

Sections 120A/34-There is no substantial difference between conspiracy as defined in section 120A and acting on a common intention in section 34. In the former the gist for the offence is bare agreement and association to break law even though illegal act does not follow while the gist of an offence under section 34 is the commission of a criminal act in furtherance of a common intention of all the offenders which means that there should be a unity of criminal behaviour resulting in something for which an individual will be punishable if it is done by himself alone. (Per Md Tafazzul Islam J). Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 120B-Criminal conspiracy -The circumstances before, during and after the occurrence about the complicity of the accused in the incident must be proved beyond shadow of doubt. The criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy for murder. Each one of the circumstances should be proved beyond reasonable doubt. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Sections 143/447/448/431 /323/325/ 307/302/380/427/109/114 and 34 - Whether the High Court Division can quash a proceeding on the plea of alibi?

The Appellate Division observed that it is crystal clear that the opinion and decision in respect of the accused- petitioner-respondent passed by the High Court Division in the impugned judgment and order dated 19.05.2009 is quite contradictory to the facts and allegations made specifically in the F.I.R. and charge- sheet. This Division, therefore, of the view that in passing the impugned judgment and order quashing the proceedings of Sessions Case No. 13 of 2007 arising out of Kotalipra P.S. Case No. 7 dated 30.05.2006 on the plea of alibi so far as it relates to the accused-petitioner, the High Court Division has committed serious miscarriage of justice which cannot be sustained in law. This view of the Appellate Division has already been settled by the Pakistan Supreme Court in the case of State-Vs- Monzoor Ahmed reported 18 DLR (SC) 444 that "Plea of alibi without calling evidence in support of it is no plea at all". In the case of Nannu-Vs-Awlad Hossain reported 43 DLR. (AD) 63 the Appellate Division has held that "Magistrate cannot discharge accused persons on the plea of alibi that they were at different places at the time of commission of offences alleged by the prosecution-Magistrate's 'finding in this regard is based on no evidence. There submission of some papers supporting alibi is neither sufficient nor admissible at the stage of adducing defence evidence had not yet come. Magistrate's order of discharge was not sustainable as it was based on gross misconception of law". In the case of Rahela Khatun Vs. Abul Hossain and others reported 48 DLR (AD) 213 wherein the Appellate Division has held that "A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case". Having the preponderance decisions for a long time of catina and discussions made hereinabove, the Appellate Division has no hesitation in saying that the quashing of proceeding was illegal. Therefore, the impugned judgment and order of the High Court Division cannot be sustained in law and hereby set aside. The State, represented by the Deputy Commissioner, Gopalgonj - Vs.- Kamrul alias Kamruzzaman (Criminal) 22 ALR (AD) 38

Sections 143/448/385 and 506

Nari-O-Shishu Nirjatan Daman Ain, 2000

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, [1 LM (AD) 545]

Section 147-The Sessions Judge found he appellants guilty of charge under section 147 PC and granted interim bail pending filing of appeal. The learned Judge by the impugned order summarily rejected the appeal petition on the ground that the appellants did not surrender before moving their petition of appeal and they being "fugitive from Law can not get its protection." Leave was granted to consider whether the impugned order was a lust and proper order. Saidur Rahman vs State 40 DLR (AD) 281.

Sections 147/447/427

Learned trial Judge came to the conclusion that was in fact trespass into the land of the complainant. But no clear finding in this regard- The learned Judge in revision while accepting the findings of the Courts below also found that the accused petitioners could not produce any scrap of paper in support of their specific defence of auction purchase- Hence, the impugned judgment calls for no interference. Ahad Ali Miah & Ors Vs. Mushtahid Alam & Ors 2 BLT (AD)-3

Sec. 147-149/283/325/332/.... & 121(A)

Ansars Act, 1948

Section 5

Ansar Rules, 1948

Rule 17

Penal Code, 1860

Sections 147/148/149/283/325/332/353/243/427/435/380/109 & 121(A)

The government may take measure to take back the innocent writ petitioners in Battalion Ansars after proper scrutiny, if they are found not guilty of revolt or ‘Mutiny’–– Embodied Ansars i.e. the respondents work as auxiliary police force and they are trained and entitled to wield weapons. Disobedience to the orders of the higher authority breaking the chain of commands is termed as ‘Mutiny’ which is the highest offence for an auxiliary police force for which stern punitive action has been taken. Following the alleged ‘Mutiny’ in 1994 there was exigency to control the situation and persons involved in the ‘Mutiny’ had been identified by their controlling officers on the spot and were arrested from the spot and FIR was lodged.

In a chaotic situation some innocent Ansars might have been implicated in the offence of ‘Mutiny’ against their will, which could be possible to find out through proper scrutiny. Thus, it would be wise that after a long lapse of 25 years the disembodied Ansars should not be reinstated in Bangladesh Ansar Battalion on wholesale basis without scrutiny. In the said backdrop, the government may consider to take initiative to take back the innocent persons in the Battalion Ansars after proper scrutiny, if found not guilty of revolt or ‘Mutiny’. .....Director General of Ansar and VDP, Dhaka =VS= Md. Ruhul Amin, (Civil), 2023(1) [14 LM (AD) 167]

Sections 148, 149 and 302

The remand order made by the High Court Di-vision has not been justified at all. The High Court Division committed wrong in sending the case on remand to the trial court making some vague observation as to framing of charge by the trial court without giving any finding as to whether the accused persons have been prejudiced in any way by such framing of charge. The High Court Division could have rectified any such defect.

The Appellate Division has considered the submissions of the learned Deputy Attorney General and gone through the impugned judgment of the High Court Division and also that of the trial court. The Appellate Division also finds that the remand order made by the High Court Division has not been justified at all. The High Court Division committed wrong in sending the case on remand to the trial court making some vague observation as to framing of charge by the trial court without giving any finding as to whether the accused persons have been prejudiced in any way by such framing of charge. The High Court Division could have rectified any such defect, if at all, in framing charge. The High Court Division should have disposed of the appeals on merit. In the circumstances the Appellate Division set aside the impugned judgment dated 29.07.2011 passed by the High Court Division in Criminal Appeal No. 2195 of 1997 along with Criminal Appeal No. 1152 of 2006 and also the other impugned judgment dated 23.08.2011 passed by the High Court Division in Criminal Appeal No. 2078 of 1997 along with Criminal Appeal No. 6677 of 2009 and send back all these appeals to the Division Bench of the High Court Division presided over by Mr. Md. Abdul Hye, J. to be disposed of on merit expeditiously. The State -Vs.- Ibrahim Mia @ Ibrahim Ali (Criminal) 13 ALR (AD)148-150

Sections 148/302/34/324/325/326/323

Criminal justice system is that if a single witness can prove direct involvement of the accused person in commission of an offence and if the same is believed or other circumstances support the prosecution case then conviction and sentence can be imposed. …State =VS= Sarafat Mondol @ Mander Mondol, (Criminal), 2020 (1) [8 LM (AD) 362]

Sections 148 & 149-Error in recording conviction-The charge framed and findings of the Court show the accused to be guilty of rioting punishable under section 148. But the trial Court erroneously recorded conviction under section 149, although this section 149 does not indepen- dently punish any offence. The High Court Division attempted to correct it, but unnecessarily added section 149 to section 148. This is a mere irregularity which does not touch the merit of the case as the charge specifically said they were members of an unlawful assembly. The order of conviction needs be modified so as to record the conviction under section 148. Abdus Samad vs State 44 DLR (AD) 233.

Sections 148 and 324-Members of unlaw- ful assembly-Rioting committed in prosecution of their common object-Accused Tayeb Ali assaulted PW 1-Conviction of both the accuseds under section 148 PC and Tayeb Ali's conviction under section 324 BPC based on good evidence- But their conviction under sections 302/149 not sustainable as their participation in assault upon deceased Bazlur Rahman doubtful. Tayeb Ali vs State 41 DLR (AD) 147.

Section 148- A person cannot be convicted under this section unless he actually had a dangerous weapon in his hand.

Section 148 is attracted only when a rioter is armed with a deadly weapon. A person cannot be convicted under this section unless he actually had a dangerous weapon in his hand. Only the actual persons who are armed with a deadly weapon would be liable for the aggravated offence of rioting. There is contradictory evidence of the witnesses as regards the possession of deadly weapons by them and therefore, the conviction of Mosabbir Ali, Liton and Parvin Akter under section 148 is not legally tenable in law. In view of the above, Appellate Division convert their conviction to one under section 147 of the Penal Code and though we maintain their conviction under section 447, but the sentence under that count is only three months, which they have already suffered. Appellate Division therefore, commute their sentences for the period they have already undergone. Appellate Division find no illegality or impropriety in finding the other petitioners guilty under sections 148 and 447 of the Penal Code. Mukit and others Vs. The State 3 ALR(2014)(1)(AD) 184

Sections 148, 300, 302 and 304

Whether the act of the appellant would fall within the ambit of an offence of murder punishable under Section 302 of the Penal Code or culpable homicide not amounting to murder i.e. under Exceptions 1 and 4 to Section 300 punishable under Section 304 Part-I of the Penal Code.

The facts and circumstances of this case lead the Appellate Division to believe that the appellant inflicted inflicte 'shabol' blow on the head of the deceased with the intention of causing grievous injuries which were likely to cause death, but the 'shabol' blow was inflicted at the spur of the moment in a sudden fight between the parties without any premeditation, as well being provoked by the deceased the appellant lost self- control. Moreover, the act of the appellant falls within the purview of Exception Nos. 1 and 4 of Section 300 that is punishable under section 304 Part-I which provides that the act by which the death is caused is done with intention of causing death or such bodily injury as is likely to cause death. The High Court Division committed an error of law in convicting the appellant under Sections 302/148 of the Penal Code in holding that "the weapon used was sabol. The accused dealt sabol blow on the vital part of the body. All these show that the accused had intention to kill Khorshed." The High Court Division failed to consider that, though the appellant has caused the death with the intention, he did the same in a sudden fight, in the heat of passion being provoked by the victim. Thus, the appeal is dismissed with the modification of the sentence of the appel- lant. The Appellate Division, therefore, alter the conviction of the appellant from Section 302 to Section 304 Part-I and reduce the sentence to rigorous impri- sonment for 10 (ten) years with a fine of Tk. 1,000.00 (one thousand), in default to pay the fine, the appellant shall suffer rigorous imprisonment for 15 (fifteen) days more. Abdus Samad @ Md. Abdus Samad - Vs. The State (Criminal) 21 ALR (AD) 138-146

Sections 148, 149 and 302 -The re- mand order made by the High Court Di- vision has not been justified at all. The High Court Division committed wrong in sending the case on remand to the trial court making some vague observation as to framing of charge by the trial court without giving any finding as to whether the accused persons have been prejudiced in any way by such framing of charge. The High Court Division could have rectified any such defect.

The Appellate Division has considered the submissions of the learned Deputy At- torney General and gone through the im- pugned judgment of the High Court Divi- sion and also that of the trial court. The Appellate Division also finds that the re- mand order made by the High Court Divi- sion has not been justified at all. The High Court Division committed wrong in send- ing the case on remand to the trial court making some vague observation as to framing of charge by the trial court without giving any finding as to whether the ac- cused persons have been prejudiced in any way by such framing of charge. The High Court Division could have rectified any such defect, if at all, in framing charge. The High Court Division should have disposed of the appeals on merit. In the circums- tances the Appellate Division set aside the impugned judgment dated 29.07.2011 passed by the High Court Division in Criminal Appeal No. 2195 of 1997 along with Criminal Appeal No. 1152 of 2006 and also the other impugned judgment dated 23.08.2011 passed by the High Court Division in Criminal Appeal No. 2078 of 1997 along with Criminal Appeal No. 6677 of 2009 and send back all these appeals to the Division Bench of the High Court Divi- sion presided over by Mr. Md. Abdul Hye, J. to be disposed of on merit expeditiously. The State -Vs. Ibrahim Mia @ Ibrahim Ali (Criminal) 13 ALR (AD)148-150

Section 149

Common object— Motive-Distinguished—

Common object is distinctly different from motive. Motive has nothing to do with common object. Prosecution is not bound to prove motive. Motive may be a matter for consideration in a case mainly based on circumstantial evidence. Settled law is that prosecution does not fail even if motive is. not proved where there is direct evidence. Bangladesh Vs. Gaisuddin and other- 4, MLR (1999) (AD) 29.

Section 149

The eye witnesses testified that accused respondents No. 1 and 4 inflicted gunshot injuries on deceased Chandu. Accused respondent Nos. 3 and 5 fired guns shots to deceased Suruj and accused respondent No. 2 Abdul Awal assaulted deceased Azimuddin with gunshot. Accused respondent No. 6 Abdur Rahman assaulted deceased Ahamad by his gun-these accused respondents participated in specific overt acts and as such there is no difficulty in finding that the accused persons were guilty of the offence constructively under Section 149 of the Penal Code. State Vs. Giasuddin & Ors. 7 BLT (AD)-108

Section 149

We are of the view that though there is evidence that only four of the appellants actually caused injury to the victim, the other three being members of that unlawful assembly are equally liable. Moreover, there is evidence to show that these three caused injury to those who came to the place of occurrence to rescue the victim. Haider Ali & Ors Vs. The State 12 BLT (AD)-196

Section 149

For applying section 149 of the Penal Code against an accused, three conditions must be fulfilled: (a) the accused must have been a member of the unlawful assembly at the time the offence was committed; (b) the offence must have been committed in prosecution of the common object, or (c) the offence must be such as the members of the assembly knew likely to be committed in prosecution of that object.

Before applying section 149, the Court must have indubitable evidence that the members of the unlawful assembly constituted the statutory number of five, though some of them might not have been named, or identified, or brought to trial. Rafiqul Islam Vs. The State, 13BLD (AD)11 7

Sections 149/326 and 324-The doc- tor opined that the injuries were simple in nature. The doctor also opined that the injuries were inflicted with blunt weapons, the act of the attracts an of- fence punishable under section 323 of the Penal Code by inflicting simple inju- ries with blunt weapons on different parts of the body.

The Appellate Division observed that on consideration of the evidence of all the P.Ws. as a whole, that the leave-petitioner Zaher Mia did not participate in the occur- rence with the common object of killing Idris Mia. In the light of the findings made before, Appellate Division is of the view that conviction of the petitioner under sec- tion 326 read with sections 149 and 304 of the Penal Code was not justified. The evi- dence on record reveals that the leave-petitioner, in fact, committed the offence under section 323 of the Penal Code. Md. Jaher Miah. Vs. The State. (Criminal) 12 ALR (AD) 67-69

Section 149-Member of an unlawful assem- bly-Whether he can be convicted when the principal offender has not been convicted-Once the court finds that an offence has been committed by any member of an unlawful assembly in prose- cution of its common object, then whether the principal offender has been convicted or not all other members may be constructively liable for conviction. Abdus Samad vs State 44 DLR (AD) 233

Section 149-Applicability of the provision under section 149-Even after acquittal of the five accused there could be an unlawful assembly if there was evidence that besides the accused on trial there were others even though not stated as such in the charge or in the FIR. Rafiqul Islam vs State 44 DLR (AD) 264.

Section 149-When a particular offence is committed by an individual member of the unlawful assembly, which was neither done in prose- cution of common object of the assembly nor other members of the assembly knew that the offence would/be committed, other members of the assembly cannot be held liable for the offence.

The word "likely", in the later part of section 149 of the Code means some clear evidence that an unlawful assembly had such a knowledge. In view of other offenses committed, such as criminal trespass and assault, it is difficult to hold that all the appellants are consecutively liable under section 149 of the Code when Appellant No.1 Abdus Sattar alone struck a Katra blow on the right side of the chest of deceased which proved fatal and, strictly speaking, section 149 of the Penal Code is not attracted in this case. There being overwhelming evidence of inflicting Katra blow on deceased Aminul Huq by Appellant No.1, the appeal in respect of Appellant No. 1 Abdus Sattar is dismissed and his conviction and sentence under sections 302/149 of the Penal Code is altered to section 302 of the Penal Code and his sentence of imprisonment for life is maintained. Abdus Sattar vs State 46 DLR (AD) 239.

Sections 149 and 304 - No doubt that an occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence. Keeping in mind the alleged nature of the injury caused by the accused-appellant, the Appellate Divi- sion is of the opinion that conviction under section 323 of the Penal Code would be more appropriate.

The Appellate Division observed that on scrutiny of the post-mortem report, the Ap- pellate Division finds that no particular mention has been made of existence or non-existence of any injury to the eyes of the victim, as there is no specific column in the form of the post-mortem report for the eyes. On the other hand, the inquest report shows that injury to the eyes was noted by the S. 1. of Police. The evidence of P. Ws. 1 and 4 supports the F.I.R. story that the accused-appellant caused an injury to the left eye of the victim with a bamboo stick. However, according to the F.I.R. and P.W. 1, only a swelling injury to the left eye was caused by the accused-appellant, whereas P.W. 4 stated that a bleeding injury was caused to the left eye. Thus the extent of the injury is minimal. There remains no doubt that an occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence. However, in view of the facts and circumstances of the case detailed above and the submissions of the learned Advocate for the appellant, keeping in mind the alleged nature of the injury caused by the accused-appellant, the Ap- pellate Division is of of the opinion that conviction under section 323 of the Penal Code would be more appropriate and that the ends of justice will be sufficiently met if the sentence of the appellant is modified to the period already undergone by him in custody. Md. Rafiqul Islam Howlader -Vs.- The state (Criminal) 13 ALR (AD) 62-64

Section 149

The essential ingredients of section 149 are that there must be an unlawful assembly for commission of an offence by any member of the said unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew that the offence to be likely to be committed.

The Appellate Division held that if those elements are satisfied, then only a conviction under section 149 of the Penal Code may be substantiated. Even in order to hold all the appellants vicariously liable for the offence committed it was the duty of the prosecution to establish that they were the members of unlawful assembly and they shared the common object of killing victim Rubi. In absence of evidence and finding as to common object of killing the victim the conviction of all the accused persons including the appellants, who are the members of a same family, is unsafe. Abu Taher and others Vs. The State. (Criminal) 17 ALR (AD) 6-17

Section 161-Illegal gratification-Trap case Because of the tough requirement of proof beyond reasonable doubt the laying of trap is the only method for detecting crimes like bribery which are committed in covert manner. Such a method is not prohibited. For laying a trap the Investigating Officer cannot be said to be thereby instigating commission of the offence. Principles of accomplice evidence cannot be extended to the evidence of trap witness, because the latter cannot be termed as accomplice. As to corroboration of trap witnesses no hard and fast rule can be given. There may be cases where the Court will look for independent corroboration Equally there may be cases where the Court may accept evidence of trap witnesses. Shahabullah vs State 43 DLR (AD) 1.

Section 161

The Penal Code, 1860

Section 161 r/w

The Prevention of Corruption Act, 1947

Section 5(2)

The High Court Division without application of its judicial mind quashed the proceedings– When there is conflict between the parent law and this Rule, the law will prevail over the rules. Rules made under a statue must be treated for all purposes of construction or obligations exactly as if they were in the Act and are to be of same effect as if contained in the Act. The copy of the sanction letter as quoted in the judgment clearly shows that the Anti-Corruption Commission has accorded sanction for submission of police report. Therefore, there is no illegality or impropriety on the part of the learned Special Judge in taking cognizance of the offences and also in framing charge against the respondent. The High Court Division without application of its judicial mind quashed the proceedings. Since charge had already been framed in the case against the respondent as back as on 26th January, 2009 and about 4(four) years had elapsed in the meantime, Appellate Division finds it not necessary to examine the question by granting leave which would unnecessarily delay the disposal of the case. The reason upon which the High Court Division quashed the proceeding is apparently contrary to law. The impugned judgment of the High Court Division is not tenable in law and accordingly, it is liable to be interfered with. The judgment of the High Court Division is accordingly set aside. This Division directs the learned Special Judge to proceed with the case in accordance with law. .....Anti Corruption Commission =VS= Mohammad Bayazid, (Criminal), 2022(1) [12 LM (AD) 621]

Section 161

The Penal Code, 1860

Section 161 r/w

The Prevention of Corruption Act, 1947

Section 5(2) r/w

The Code of Criminal Procedure, 1898

Section 561A r/w

Durnity Daman Commission Bidhimala, 2007

Rule 16

A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir, (Criminal), 2017 (2)– [3 LM (AD) 509]

Sections 161 and 165A

The Code of Criminal Procedure, 1898

Section 498 r/w

Penal Code (XLV of 1860)

Sections 161 and 165A

In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail– The petitioner has been charged with for offences punishable under sections 161/165(A) of the Penal Code which are bailable offences. In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code of Criminal Procedure does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. But it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. The judgment of the High Court Division is set-aside. Be enlarged on bail to the satisfaction of the Special Judge, Court No. 3, Dhaka pending trial of the case. .....Mia Nuruddin (Apu) =VS= State & another, [1 LM (AD) 474]

Sections 161/109

Criminal Law Amendment Act, 1958

Section 10

Emergency Power Rules, 2007

Section 11(2)

The Penal Code, 1860

Sections 161/109

Granting ad-interim bail–– It appears that the High Court Division has correctly followed the observations made by this Division in Criminal Appeal No.6 of 2008 in grant¬ing bail to the respondent No.1. ––It further appears that the appeal could not be disposed of within ninety days and the respondent has already served out a substantial portion of sentence. Appellate Division does not find that the judgment and order of the High Court Division suffers from any infirmity. Accordingly the petition is dismissed. .....Anti-Corruption Commission =VS= Sigma Huda, (Criminal), 2023(1) [14 LM (AD) 497]

Section 161

Penal Code, 1860

Section 161 read with

Section 5(2) of the Prevention of Corruption Act, 1947 And

Section 561A of the Code of Criminal Procedure, 1898 And

Durnity Daman Commission Bidhimala, 2007

Rule 16:

A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. …Anti Corruption Commission Vs. Md. Rezaul Kabir & ors, (Criminal), 8 SCOB [2016] AD 144

Sections 161 and 165A-In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True, the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. Mia Nur- uddin (Apu) vs State, 68 DLR (AD) 290

Section 166

Administrative Tribunal Act, 1980

Section 10A r/w

Administrative Appellate Tribunals Rules, 1982

Section 7

Constitution of Bangladesh, 1972

Article 102

Penal Code, 1860

Section 166

The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal–Appellate Division is of the opinion that the respondents cannot avail themselves of the remedy provided under article 102 of the Constitution for having a direction upon the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The High Court Division has not been entrusted with the power of deciding as to how the decisions and orders of the Administrative Tribunals will be executed. The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal. The Administrative Tribunal is quite competent to come to a decision about the mode of implementation of its own decisions and orders. In case of failure, the said writ-petitioner-respondent has been given further remedy under section 10A of the Act. ...Government of Bangladesh =VS= Md. Abdul Maleque Miah, (Civil), 2021(2) [11 LM (AD) 12]

Section 199, 200

The claim of the respondent No. 1 that the appellant is a bank loan defaulter has been persistently denied by the appellant and the matter is pending before the superior Courts and thus we do not find that there exits such a clear case capable to be decided at the micro-level on the interpretation of the relevant law. Abdul Halim Gazi & Bangladesh, Dhaka vs Afzal Hossain (Amirul Kabir Chowdhury J)(Civil) 2ADC 533

Section 199 and 200

Declaring that the election of the Jhalakathi Pourashava has been vitiated as a whole and consequently cancelling the Gazette notification declaring the appellant as elected to the aforesaid post.

Once the election process has been started, moreso, when in the instant case election result has been published in the official gazette the High Cough Division has no jurisdiction under Article 102 of the Constitution to entertain any matter relating to election unless there is corum-non-judice or malice in law as decided by the Court. It has been settled long ago that disputed questions of fact are outside the jurisdiction of disposal of an application under Article 102 of the Constitution. Abdul Halim Gazi vs. Afzal Hossain and others (Amirul Kabir Chowdhury J) (Civil) 4ADC 195

Section 201/34

Both the courts below concurrently found that the inmates of the PO house committed the murder of Chapa entering into her room on the night. True, the prosecution could not angle out them in so many words. From the evidence of PW 1 Bimal Kumar Das it appears that certain alamats were seized from PO house including a blood stained lungi of the accused Zahirul Alam Kamal. The accused Zahirul Alam Kamal has not given any explanation in the matter. In view of positive evidence that the blood stained lungi was that of accused Zahirul Alam Kamal, according to us, he cannot be solved of the responsibility of murder of (Chapa. Regarding two other accused-respondents however we do not find any such incriminating element to connect them with the murder though they, as well, are found responsible for causing disappearanceof the evidence. In such view of the matter we feel inclined to give benefit of doubt to the two other respondents-Nasiruddin Jamal and Zillul Bari so far as the charge against them under Section 302/34 of the Penal Code is concerned. They however cannot be absolved of the charge under Sections 201/34 of the Penal Code. The State Vs. Khandker Zillul Bari 14 BLT (AD)-91

Section 201/403/411

Evidence Act, 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, [10 LM (AD) 360]

Section 201/403/411

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

Section 201-Accused's statement the part of which is incriminating does not connect him with the act of killing. In the statement of accused Yasin Majhee which was recorded in Bengali it appears ears that he accompanied the murderers upto the house of Yasin Mridha where the dead body was brought. This part of the statement may be incriminating if at all in respect of the offence of concealment of the dead body, but it does not connect him with the act of killing. State vs Abdur Rashid Piada 40 DLR (AD) 106.

Section 201-The statement of the accused Joynal to the Chairman is of the same nature and, as such, is not a confessional statement. As to the extra-judicial confession orally made by accused Joynal to PW 2, Chairman, this is also of the same nature as the statement recorded by the Magis- trate; he did not implicate himself in the murder, and, as such, it is not a confessional statement implicating himself and other accused in the murder. State vs Abdur Rashid 40 DLR (AD) 106.

Section 201/34- The accused conjointly caused evidence of the commission of murder to disappear intending to screen themselves from the offence of murder and thus are liable for commis- sion of offence punishable under sections 201/34 of the Code. State vs Khandker Zillul Baris 57 DLR (AD) 129.

Section 211

The Code of Criminal Procedure, 1898

Sections 195(1)(b) and 476(1)

The Penal Code, 1860

Section 211

False complaint– It is Appellate Division’s view that in the event of a case under special law, any written complaint can be filed by anyone, since it is invariably a cognisable offence, but should not be acted upon without taking proper precautions, as is, for example, required under section 195(1)(b) read with section 476(1) of the Code of Criminal Procedure for a case to proceed under section 211 of the Penal Code. It is also noted that the informant of the original case has been left out of the charge by the Tribunal framing charge only against the witnesses. This Division can only endorse the view of the High Court Division that prolonging this type of case any further would be an abuse of the process of the Court. .....A. K. Azad @Baira Azad =VS= Md. Mostafizur Rahman, (Criminal), 2022(1) [12 LM (AD) 650]

Sections 211, 399 and 402

Prosecution under section 211 would have to be initiated upon a complaint in writing by the Presiding Officer of the Court under section 195(1)(b) of the Code and then forwarded to a Magistrate of the first class having jurisdiction as provided by section 476 of the Code.

The Appellate Division held that an essential component of section 195(1)(b) read with section 476(1) is that the offences mentioned in section 195(1)(b), which includes section 211 of the Penal Code, must have been committed in or in relation to a proceeding in that Court. And in that event prosecution under section 211 would have to be initiated upon a complaint in writing by the Presiding Officer of the Court under section 195(1)(b) of the Code and then forwarded to a Magistrate of the first class having jurisdiction as provided by section 476 of the Code. The earlier view of the High Court Division as appears from the decision in the case of Haji Abdus Samad & ors Vs. Haji Jobed Ali alias Haji Abdul Jabbar, 28 DLR 58 was that when in any case the police files final report against the accused named in the FIR there is no proceeding existing they had been discharged, and the naraji petition was rejected. That decision was followed by the High Court Division in a later decision in the case of Abdul Quader -Vs.- Serajuddowla and others, 8 BLD (HCD) 517. However, on appeal before this Divi- sion Serajuddowla Vs. Abdul Kader and another, (reported in 13 BLD (AD) 94) his Lordship ATM Afzal, J. as his Lordship was then, by reference to the case of Abdur Rahman Vs. State reported in 29 DLR (SC) 256, observed that "when a Magi- strate on the basis of a final report sub- mitted by the police discharges an accused his order amounts to a judicial order under the scheme of the Code and not merely administrative order." Their Lordships held in the Serajuddowla case that a Magistrate acts in his judicial capacity while discharging an accused on the basis of a final report submitted by the police and that the offence under section 211 of the Penal Code was allegedly committed by the appellant of that case in relation to a proceeding in Court and as such the bar under section 195(1)(b)of the Code is attracted, and, therefore, a complaint by the Presiding Officer of the Court is necessary. Md. Solim Ullah Vs. The State, and others (Criminal) 15 ALR (AD) 100-105

Sections 295A and 298

In spite of issuance of repeated summons and warrant of arrest the respondent No. 2 did not appear before the Magistrate concerned but prayed for quashing the proceeding before the High Court Division without praying for bail for which it was the duty of the High Court Division to reject the quashing petition. Mowlana Md Yusuf vs State and another 3 BLC (AD) 171.

Sections 299 & 300-When death is probable it is culpable homicide and hen death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention. Sate, represented by the Solicitor to the Govern- ment of the People's Republic of Bangladesh vs Ashraf Ali 46 DLR (AD) 241.

Sections 299, 300 & 302-In the case of culpable homicide the intention or knowledge is not so positive or definite. The injury caused may or may not cause the death of the victim. To find that the offender is guilty of murder, it must be held that his case falls within any of the four clauses of section 300, otherwise he will be guilty of culpable homicide not amounting to murder. Facts of the case show that death was caused without premeditation. Bandez Ali vs State 40 DLR (AD) 200.

Sections 299 and 300

Mere killing of a person or mere causing of a person’s death is not murder or a culpable homicide but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in section 299 as “culpable homicide” and four classes of cases have been described in section 300 as “murder”. The essential difference between mere “culpable homicide” and “murder” is the degree of probability of causing death. When death is probable, it is culpable homicide but when death is most probable, it is murder. The State Vs. Ashraf Ali and others, 14BLD (AD)127

Section 300

From the consistent evidence we find the accused persons who were members the unlawful assembly were armed guns, daos, ballam, halanga etc. encircl Bichra (adjacent homestead) and several gun shots which injured deceased persons. All the members of unlawful assembly had knowledge the prosecution of the common object of unlawful assembly guns and other deadly weapons were to be used which might death. The accused persons were aggressors as they attacked the informant party with any provocation. From the weapons and nature of injuries received by deceased persons at the vital parts of bodies it is palpably clear that it is a case of murder as defined under Section of the Penal Code. State Vs. Giasuddin & Ors. 7 BLT (AD)-108

Section 300

Second clause read with illustration (b) Knowledge in the second clause must be, pus, in relation to the person harmed and the offence is murder even if the injury may not be generally fatal but is so only in a special case provided such knowledge exists in relation to the particular injured person. Nibir Chandra Chowdhury and Anr. Vs. The State 9 BLT (AD)-272

Sections 300, 302/109

The Constitution of Bangladesh, 1972

Article 105 r/w

The Penal Code, 1860

Sections 300, 302/109

Review– The learned counsel fails to point out any error of law in the judgment of this court. We find no merit in these petitions. .....Mufti Abdul Hannan Munshi =VS= The State, [3 LM (AD) 584]

Sections 300 & 304

A prisoner sentenced to imprisonment for life has no right to claim remissions, inasmuch as, the remissions are available to a prisoner in the nature of privilege. After conviction a prisoner cannot claim any right of remission other than a right of appeal and in the appeal he can claim acquittal or the alteration of the conviction or sentence which is permissible by law. In case of murder if the convict's case covers any of the exceptions enumerated in section 300, his conviction may be converted to part I or part II of section 304 or he may be acquitted. Except in those three circumstances, a convict undergoing life sentence cannot claim any other right. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

Sections 300, 302/34

In the instant case the victim and others went to plough their land and the accused appellants being armed with deadly weapons and having form unlawful assembly went to the place of occurrence and fell upon the victim and others and having variously injured the victim kill him on the spot. Therefore the High Court Division rightly dismissed the appeal and upheld the order of conviction and sentence passed by the learned Additional Sessions Judge, Laxmipur. Appellate Division finds no substance in this petition which is accordingly dismissed. .....Mohammad Mostafa alias Dayemuddin =VS= The State, (Criminal), 2023(1) [14 LM (AD) 255]

Section 300, clauses 1, 2, and 3-The weapon used was a lethal one and the injury grave in nature was caused on the vital part of the body. The act was done with the intention of causing such bodily injury intended to be inflicted as was sufficient in the ordinary course of nature to cause death. It falls clearly within the 1st, 2nd & 3rd clauses of section 300 Penal Code. Md Abdul Majid vs State 40 DLR (AD) 83.

Sections 300, 299 & 304-Part I-Culpable homicide The injuries, though caused inten- tionally, are of such a nature that these are "likely to cause death" and this does not constitute murder-It constitutes culpable homicide not amounting to murder. State vs Montu 44 DLR (AD) 287.

Section 300- Clause 4th and 302- Whether a series of acts are so connected together as to form the part of the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formula of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction. The circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. A transaction may be continuous one extending over a long period and two places. The expression "part of the same transaction" must be understood as including both immediate cause and effect of an act or even also its collocation or relevant circumstances. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 300, 302 and 34

It is now settled law that before an accused can pray in aid of the provisions of Exception 4 to Section 300 of the Penal Code, all its ingredients must be satisfied to attract the Exception 4. It is not enough to establish that the attack was unpremeditated and that the act was committed in the heat of passion. It has to be proved further that the act committed was the result of sudden 'fight' without the offender 'having taken undue advantage' over the victim. Besides, it must also be proved that the offender did not act in a cruel and unusual manner.

The learned Counsel appearing for the appellants before the Appellate Division submits that in the facts and circumstances the case falls under Exception 4 of Section 300 of the Penal Code. Exception 4 of Section 300 of the Penal Code runs as under: 'Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passing upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. It is now settled law that before an accused can pray in aid of the provisions of Exception 4 to Section 300 of the Penal Code, all its ingredients must be satisfied to attract the Exception 4. It is not enough to establish that the attack was unpremeditated and that the act was committed in the heat of passion. It has to be proved further that the act committed was the result of sudden 'fight' without the offender 'having taken undue advantage' over the victim. Besides, it must also be proved that the offender did not act in a cruel and unusual manner. Reference may be made of the case of Ekram Hossain Vs State reported in 13 DLR 431 and Abdul Majid Vs. The Crown reported in 7 DLR (FC) 11. In the instant case the victim and others went to plough their land and the accused appellants being armed with deadly weapons and having form unlawful assembly went to the place of occurrence and fell upon the victim and others and having variously injured the victim kill him on the spot. Therefore the High Court Division rightly dismissed the appeal and upheld the order of conviction and sentence passed by the learned Additional Sessions Judge, Laxmipur. The Appellate Division finds no substance in this petition which is accordingly dismissed. Mohammad Mostafa alias Dayemuddin and another Vs.- The State (Criminal) 23 ALR (AD) 27

Sections 300 and 304

The injury inflicted by Mahibullah was the cause of death of the victim. In particular we note that the injury on the head was a blow to a vital part of the victim's body which caused internal blood clotting. There were also injuries on the back of the neck and sides of the neck which caused haematoma with extravasated clotted blood found under the injuries. All these must be considered in the context in which the beating took place. Mahibullah was a youngster, who had been in a quarrel with Kaium. He was already in a fighting mood when Abdus Sattar intercepted. Evidently the hot-blooded youngman carried on the beating which started with Kaium. This was the continuation of a fight and it can be said that there was no premeditation. Hence, the exception No. 4 to section 300 is applicable. Accordingly, the conviction and sentence under the first part of section 304 is the correct application of law. Mohammad Afzal Hossain Shaikh and another -Vs.-The State. 4 ALR (AD) 2014 (2) 118

Sections 300 and 304-The Appellate Division held that a prisoner sentenced to imprisonment for life has no right to claim remissions, inasmuch as, the remissions are available to a prisoner in the nature of pri- vilege. After conviction a prisoner cannot claim any right of remission other than a right of appeal and in the appeal he can claim acquittal or the alteration of the con- viction or sentence which is permissible by law. In case of murder if the convict's case covers any of the exceptions enumerated in section 300, his conviction may be con- verted to part I or part II of section 304 or he may be acquitted. Except in those three circumstances, a convict undergoing life sentence cannot claim any other right. Ataur Mridha @Ataur -Vs. The State (Criminal) 9 ALR (AD) 162-188

Section 300-Doctrine of criminal causation.

The doctrine of criminal causation has reasonable limits-it is not interminable. There are cases when the court regards the cause as too remote to come to the conclu- sion that the injuries inflicted by the ac- cused persons may or may not cause the death, the act of the accused persons at- tracts an offence of culpable homicide not amounting to murder. Firoz Ali and another: -Vs. The State: (Criminal) 10 ALR (AD) 330-331

Section 302-Substitution of sub-section (5) of section 367 CrPC by the Law Reforms Ordi- nance Effect of change on sentencing-Pre- viously death sentence was the normal sentence for murder and the court was required to give reasons if the lesser sentence of life imprisonment was given After the substitution now reasons have to be given in either case-A death sentence is to be justified in as much in the same way as in the case of lesser sentence of life term imprison- ment. Abed Ali vs State 42 DLR (AD) 171.

Section 302-Sentence Commutation of death sentence-Delay of about two years or so in the disposal of the Death Reference Case and the Jail Appeal in the High Court Division cannot by itself be a ground for awarding lesser sentence. Abed Ali vs State 42 DLR (AD) 171.

Section 302-Culpable conduct of the accused that he made no attempt to look for his wife since she was missing is explicit which is confirmatory of his involvement in the murder of his wife. Normally an accused is under no obliga- tion to account for the death for which he is on trial, but this is bound to be different. Dipok Kumar Sarker vs State 40 DLR (AD) 139.

Section 302-In the present case the offence followed a brief tenure of a rancorous married life between the appellant and the deceased. It was admitted by the prosecution that it was not a blissful union from the beginning. Circumstances would have been taken notice of while inflicting proper punishment prescribed under the law. Dipok Kumar Sarker vs State 40 DLR (AD) 139.

Sections 302/34

It is un-questionable that evidence given in Court is substantive evidence. Hence, when a witness identified the accused in the Court as the assailant that evidence can be corroborated by the evidence of the T.L. Parade.

It is apparent that the killer was a mercenary who murdered the victim without any motive other than carrying out the task of killing the victim. In such view of the matter the Appellate Division is of the opinion that hired killers like him are a threat to society and do not deserve any sympathy from the Appellate Division. There is no knowing who will be the victim of his next mercenary killing. In the facts and circumstance discussed above, the Appellate Division does not find any reason to interfere with the conviction and sentence awarded by the trial Court and confirmed by the High Court Division. Accordingly the Criminal Appeal No. 98 of 2017 is dismissed and the connected Jail Petition No. 2 of 2018 is also dismissed. The sentence of death of the appellant passed by the trial Court and affirmed by the High Court Division is maintained....(22, 23 & 24)

[31 ALR (AD) (2024) 23]

Sections 302/34

The Appellate Division observed that where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. The Appellate Division is inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate. The Appellate Division is of the opinion that ends of justice will be sufficiently met if the sentence of death is commuted to imprisonment for life. Sohel Dewan Vs. The State 6 ALR (AD) 2015 (2)28

Section 302

The Appellate Division held that eye witnesses who saw the occurrence with the help of torch light. Such evidence of the witnesses could not be shaken in cross-examination. The accused is alleged to have entered into the room where the victims were standing. He was armed with a long knife and straightaway the helpless victims were struck mercilessly with the knife. The High Court Division rightly observed that "it cannot be said that he had no intention to kill or there is no premeditation". Having considered the evidence and materials on record and in view of the gruesomeness of the attack upon two very young, innocent and helpless children and noting also the ruthlessness of the attack and the callous disregard of the condemned prisoner for human life, The Appellate Division feel no compunction to commute the sentence of death awarded by the trial Court which was confirmed by the High Court Division. Md. Azizul Haque Bacchu -Vs.- The State 5 ALR (AD)2015(1) 128

Sections 302/34

The Appellate Division found that the prosecution failed to prove on whose gun shot injury the victim had actually died. This could be ascertained if the doctor who performed autopsy was examined. The prosecution could not produce him as he was not available. As there is no conclusive evidence as regards the principal assailant, the Appellate Division was of the view that the ends of justice would be met if the sentence of the accused person is commutated to imprisonment for life. Tapan and others-Vs.-The State.4 ALR (AD) 2014 (2) 11

Section 302- Inordinate delay in executing death sentence is a ground for commutation of death penalty to that of a sentence for imprisonment for life.

The accused petitioner has been living in the condemned cell for about 8 years with the sword of death hanging over his neck all the while, causing him intense mental agency. This has been considered by the learned Appellate Division as a good ground for commutation of death sentence to a sentence for imprisonment for life. Asaduzzaman @Jashim-Vs. -The State. 4 ALR (AD) 2014 (2) 25

Section 302- As the accused is in condemned cell for the lase 10 years Appellate Division reduce his sentence of death to life imprisonment and the Division is directed to jail authority to shift the accused from condemned cell to regular cell. Rahmat Ali @ Sukkur -Vs.-The State.4 ALR (AD) 2014 (2) 161

Section 302-Circumstantial evidence.

The facts and circumstances of the case and the evidence on record, the High Court Division rightly found that the petitioner as the husband failed to explain as to how the victim received the fatal injury in the night while she was admittedly at his house and in the absence of such explanation it is "sufficient to reach the irresistible conclusion that the Anguri Khatun, wife of the aceased received the fatal injury caused by her husband. Somed Ali -Vs. The State 3 ALR(2014)(1)(AD) 78

Section 302- There is no conclusive evidence as regards the principal assailant, the Appellate Division commutated the sentence to imprisonment for life the ends of justice. Tapan and others -Vs.- The State 3 ALR(2014)(1)(AD)81

Section 302

The Appellate Division held that post mortem report and doctor's evidence corroborated the testimonies of three witnesses (PWs 3, 7 and 9)Who proved beyond reasonable doubt that accused Abul Bashar Tipu caused the gun shot injuries on the person of deceased Aminul Islam resulting in his death. Therefore, High Court Division was wrong in acquitting him. The State -Vs.- Abul Basher Tipu 3 ALR(2014)(1)(AD) 211

Sections 302,304 and 34 -No appeal has been preferred against the alteration of the conviction from one under sections 302/34 of the Penal Code to one under the first part of section 304 of the said Code. Hance, Appellate Division only consider the legallity of the sentence imposed by the High Court.If life imprisonment is not awarded, the maximum term of imprisonment that may be imposed upon conviction of an offence under the first part of section 304 of the Penal Code cannot exceed ten years. Md. Matiar Rahman -Vs- The State 3 ALR(2014)(1)(AD) 167

Section 302-The burden lies on the accused to provide grounds for awarding the lesser sentence.

It is the normal course upon finding the accused guilty of an offence under section 302 of the Penal Code to sentence him to death unless any extenuating circumstances lead the Court to award the lesser sentence of imprisonment for life, and for that he would have to give his reasons. Rokia Begum -Vs. The State 3 ALR(2014)(1)(AD) 148

Section 302-Motive is not a necessary ingredient of an offence under section 302 of the Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, specially when the case is based on circumstantial evidence. State, represented by the Solicitor, Government of the People's Republic of Bangladesh vs Giasuddin 51 DLR (AD) 103.

Section 302-There was no occasion for the High Court Division to consider legality or other- wise of admissibility of statements of witnesses made under section 161 of the Code of Criminal Procedure. The High Court Division ought not to have enlarged the accused persons on bail in such a gruesome murder of four persons. State vs Md Motiur Rahman 56 DLR (AD) 220.

Section 302-Wife killing case-The deceased was the wife of the accused who met with death in the bedroom of the accused, while she was living with the accused. The presence of the accused in the house at the material time is not disputed rather is supported and proved by evidence on record and the death of the deceased was within the special knowledge of the accused. State vs Azam Reza 62 DLR (AD) 406.

Sections 302/34-Common intention- Whether the evidence of PW 1 and PW 11, two eye-witnesses, shows that the appellant Nos. 2-4 had shared common intention to cause the death of Nandalal along with the appellant No. 1- There was no proper evidence to make such an inference. Amar Kumar Thakur vs State 40 DLR (AD) 147.

Sections 302/34-Inconsistent evidence of PWs 2 and 4-Omissions and contradictions in their depositions were not given consideration by the Courts below Defence case appears to be more probable than that of the prosecution "as it fits in human nature and conduct". Appellants entitled to acquittal as a matter of right. Abul Kashem vs State 41 DLR (AD) 152.

Sections 302 & 302/149 The High Court Division affirmed the order of conviction and sentence as passed by the trial Court forgetting altogether that the conviction of the appellant was recorded by the trial Court under section 302/149 of the Penal Code which is a completely different kind of conviction from one under section 302 directly where the liability is personal and in the former case the liability is vicarious. Altaf Hossain vs State 50 DLR (AD) 120.

Section 302/34 & 304 Part II-Before an accused can pray in aid of the provisions of Exception 4 to section 300 of the Penal Code, all its ingredients must be satisfied to attract the Exception 4. It is not enough to establish that the attack was unpremeditated and that the act was committed in the heat of passion. It has to be proved further that the act committed was the result of sudden 'fight' without the offender 'having taken undue advantage' over the victim. Besides, it must also be proved that the offender did not act in a cruel and unusual manner. Mostafa vs State 61 DLR (AD) 150.

Sections 302/34 & 302/109-Confession- Conviction on confession alone-Relying on his incriminating statements that he made conspiracy with co-appellant Abdul Khaleq to murder his step-mother and when from his statement it appears that he was very much present standing outside the hut at the time of the murder, appellant Hazrat Ali can be safely convicted for abetment of murder. Hazrat Ali vs Stale 44 DLR (AD) 51.

Sections 302/109 and 148-Evidence on record does not justify the order of conviction under sections 302/109 and 148 of the Penal Code upheld by the High Court Division-The learned Judges did not at all consider the evidence relating to the alleged abduction of Sohrab, Mahtab and Mobarak for which the appellants were convicted also under sections 362/149 Penal Code. Jamal vs State 40 DLR (AD) 38.

Sections 302/109-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 Mokseda, and abscondence of Billal immedi- ately after the occurrence are circumstances to lead to the conclusion that he abetted the murder. Billal vs State 52 DLR (AD) 143.

Sections 302/149-Though there is evidence that only four of the appellants actually caused injury to the victim, the other three being mem- bers of the unlawful assembly are equally liable. Haider Ali vs State 56 DLR (AD) 195.

Sections 302 and 304 Part 1-Culpable homicide not amounting to murder-From the círcumstances of the case and the nature of injury that resulted in the death of victim after 11 days after the infliction of the injury, the appellant cannot be held guilty of murder. Conviction altered to section 304, Part 1. Lal Miah vs State 41 DLR (AD) 1.

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

Section 302-The High Court Division has stressed much on the question of abscondance of the petitioners. This is not a legal ground to award the extreme sentence. Though section 302 provides a death sentence which is a rule, a sentence of death being the forfeiture of life of a person, the court is always alive to see whether there is any extraneous ground to commute the death sentence to life, Court always keep in mind the nature of the offence perpetrated by the accused persons, the motive of the offender in the commis- sion of the murder, the aggravating circum- stances, the enormity of the crime and the mitigating circumstances. In cases where the murder is so cruel or beastly manner or cold blooded planning or gruesome and so on, capital sentence is the proper one and the court is justified in awarding the death sentence. Mohibur Rahman vs State, 69 DLR (AD) 330

Sections 302/109-Though accused- Mobile Quader was not charged under sections 302/109 of the Penal Code, in view of the provisions of section 535 of the Code, we do not find any legal difficulty in finding him guilty under the sections and convicting and sentencing him thereunder as there are abundance of evidence against him to warrant the conviction under the sections. Moreso, we do not see any prejudice to be caused to accused-Mobile Quader for non framing of charges against him under sections 302/ 109 of the Penal Code by the Tribunal as he got all the opportunities to defend him by cross-examining the prosecution witnesses. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Sections 302/201/34-If the offences under the Ain, 2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed. Sohel Rana Shippon (Md) vs State, 66 DLR (AD) 160

Sections 302 and 362-Crime against humanity-There is no doubt that the trial is without jurisdiction but, by the same time, it cannot be ignored that the act committed by the appellants is barbarous one. Their act shakes the conscience of the people at large. The act of the accused is not only a crime against humanity but also barbaric, (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DER (AD) 111

Section 302

The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from an accused, such a discovery is a guarantee that the information supplied by the accused is true. The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and, in fact, nothing has been elicited from them to disprove their creditworthiness.

The Appellate Division observed that Children are vulnerable and defenseless class of victims, deserving of special protection. The children are the future of every nation. The children not only need the protection of their parents, but also need to be protected by the society at large. Killing of a child needs to be condemned and deprecated in the harshest terms legally, morally and socially. The criminal law is general to the principle of proportionality in prescribing liability according to the culpability of of each eac kind of criminal conduct. In recent years, the rising crime rate particularly violent crime against children has made the criminal sentencing by the courts a subject of concern. The measure of punishment in a given case must depend upon the atrocity of the crime; conduct of the criminal and the defenceless and unprotected state of the victim. Having played with life of a child the appellant does not deserve any leniency and for him sympathizing on the ground sought for will be wholly uncalled for. In this case the appellant has betrayed the trust of the society and of the child. In the case at hand, the appellant killed the victim in a brutal and barbaric manner. The nature of the crime and the manner the same was committed inhumanly. It is not only betrayal of an individual trust but destruction and devastation of social trust. The Appellate Division, therefore, affirm the view taken by the High Court Division. Accordingly, the appeal is dismissed. Md. Zahangir @ Thotkata Zahangir -Vs.- The State (Criminal) 23 ALR (AD) 52

Sections 302 and 34

General principle of Criminal Justice System is that evidence of even a single witness if corroborated by any material on record is sufficient for convicting an accused.

The Appellate Division observed that here in this case three witnesses who accompanied the victim till they were surrcunded by the accused persons and singled out the victim for killing clearly show the motive of the accused persons and the corroborative statements of all the three eye witnesses, who saw the occurrence from a distance of 10/15 cubits are sufficient evidence for convicting the accused persons for decision of the High Court Division is wrong and as such the same is not sustainable in law. The Appellate Division in several cases held that conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self contained even it may not have received corroboration from other wit- nesses but it stands fully corroborated by the circumstances of the case and medical evidence on record. Its fullness and completeness are enough to justify the conviction. The State Vs. Hossain Miah @Md. Hossain Miah and others. (Criminal) 20 ALR (AD) 12-18

Section 302-No reliance can be put upon the opinion of the doctors if it contradicts the ocular evidence.

No reliance can be put upon the opinion of the doctors that victim met a natural death and the learned Sessions Judge rightly discarded the opinion of the doctors. In the context, the Appellate Division observe that the post-mortem repot is just like any other corroborative evidence and it cannot be accepted as a conclusive proof as to the cause of death of a deceased and a Court can discard the opinion of the doctors if it contradicts the ocular evidence adduced in the case which appears to be credible, cogent and trustworthy and the doctors concerned failed to hold the autopsy properly and gave fanciful opinion. The State -Vs. Tajel Sheikh @Md. Tajul Sheikh and others (Criminal) 19 ALR (AD) 87-94

Sections 302 and 34-In a case where the only evidence is circumstantial, it is important that the prosecution establish the guilt of the accused by cogent and reliable evidence and the proved cir- cumstances must unequivocally point to the guilt of the accused and must exclude any hypothesis inconsistent with the innocence of the accused. It is also important to see what motive the accused would have in committing the offence alleged.

The Appellate Division opined that in the instant case the motive is clear. The victim struck Khursheda with a lathi and her sons being instigated by the words of their father went to take revenge. Clearly accused Abu Taher and Alamgir were most vengeful as they immediately went in search for the victim and where prevented only by the locked door and by their uncle Tayab Ali (PW2). No other intervening event took place between that time and the break of dawn which would explain the death of the victim. The dead body having been found adjacent to the house of accused Abu Taher, the inference is clear that he is complicit in the commission of the offence. The proximity of time between the quarrel, assault on Khursheda, the mother of accused Abu Taher and Alamgir, reaction of accused Abu Taher and Alamgir in searching for the victim from her living quarters and being prevented only due to the door being locked and the intervention by their uncle Tayeb Ali and the victim being strangulated to death in the dead hours of that night and absence of all the accused persons from their respective living quarters from early morning, in my view, establish the circumstances proving the guilt of accused Abu Taher and Alamgir. Since, evidently these two accused persons were most animated by the beating of their mother, their revengeful reaction speaks of their involvement in the offence alleged. Abu Taher and others - Vs.-The State (Criminal) 18 ALR (AD) 7-16

Section 302

Where there is only sole eye witness of occurrence, a conviction may be recorded against the accused concerned provided the Courts regard him/her as honest and truthful. Every witness is competent unless the Court considers he/she is prevented from understanding the questions put to him/her or from giving rational answers by reason of tender age.

The chain of circumstances was complete and it was the husband who committed the murder of his wife by giving crowbar blow and, thereafter, in order confirm her death, he brought out knife from showcase and inflicted knife blows mercilessly, consequently, the victim wife succumbed to injuries.

The Appellate Division opined that an important circumstances which is necessary here to take into consideration that had some one except the appellant would have murdered his wife Saida, inside his dwelling hut, the appellant was bound to make a report himself at the Police Station regarding the murder of his wife by a third person. The appellant was at his house where his wife was staying and his wife was murdered but he did not take any action against any person. Considering the entire evidence and circumstances the Appellate Division finds that all the circumstances clearly lead to the irresistible conclusion that the appellant had murder his wife. There was no circumstances inconsistent with the prosecution case so the appellant was rightly convicted. In this case the circumstances were closely linked up with one another. Upon consideration of the evidence as an integral whole, the inescapable conclusion is that excepting the appellant nobody else could have committed the murder. It is the duty of the Court to award appropriate punishment in exercise its discretion. Facts and circumstances of this case show that it was not an attack on account of any provocation or mental derange. The act of bringing out a knife from showcase and abruptly inflicting the same on the person of the victim in the most brutal manner with severe cruelty inflicting number of injuries in a calculated manner on a helpless housewife. The killing of wife in a gruesome and diabolical manner will irrefutably be taken into consideration as aggravating circumstances. The appellant indulged in grotesque crime of murdering his wife in presence of his daughters in a place which was the most secured place for the victim. Such killing shocks our juridical conscience. The appellant was in a position of trust but he betrayed with all his family members killing his wife who was the mother of his three children. The Appellate Division is of the view that the High Court Division did not commit any error of law in accepting the death reference and dismissing the appeal. The Appellate Division does not find any substance of the appeal. Thus, the appeal is dismissed. Sirajul Islam @ Siraj -Vs.- The State (Criminal) 22 ALR (AD) 05

Section 302-The accused after obtaining bail absconded but merely because of abscondence of the accused without any other incriminating direct or convincing circumstantial evidence against him, he cannot be convicted.

The order of conviction and sentence passed by the trial court against the ac- cused appellant is practically on the basis of hearsay evidence of few wit- nesses, which is not admissible evidence, in absence of the eye witness to support the prosecution case. The Appellate Division held that though the prosecution could prove that Chande Ali was murdered but failed to prove that the appellant caused his death. Therefore, the conviction and sentence of the convict- appellant under section 302 of the Penal Code by the trial Court as well as affirmation thereof by the High Court Division was not justified. Babul alias Fakrul-Vs. The State (Criminal) 15 ALR (AD) 158-161

Sections 302/149

To secure conviction with the aid of section 149 of the Penal Code an overt act on the part of a member of unlawful assembly is not necessarily required but participation with common object must be proved to the hilt which is absent in this case. When there is a general allegation against a large number of persons the Court will hesitate to convict all of them on theory of constructive liability on vague evidence. Similarly, the individual liability of any of the accused persons has not been proved in this case. Abu Taher and others - Vs.- The State. (Criminal) 17 ALR (AD) 6- 17

Sections 302 & 34-The prosecution having totally failed to prove the case against the appellants beyond reasonable doubt the Courts below erred in law in relying upon such unfounded and uncor- roborated evidence and also on the tes- timony of the hostile witnesses as well as upon the other evidence, uncorroborated on material particulars, which are beyond the principle of criminal justice system.

The Appellate Division held that the High Court Division came to an erroneous finding relying on the evidence of such witnesses, which are unconfirmed and un- corroborated by any other independent evi- dence, and thereby came to an erroneous finding in holding that the appellants were the assailants and by their gunshots the victim died. It is highly unsafe to convict the appellants on the basis of such uncorro- borated testimony of PWs. 3,4 and 12. The prosecution having totally failed to prove the case against the appellants beyond rea- sonable doubt the Courts below erred in law in relying upon such unfounded and uncorroborated evidence and also on the testimony of the hostile witnesses as well as upon the other evidence, uncorroborated on material particulars, which are beyond the principle of criminal justice system. As such the decision convicting and sentenc- ing the appellants on such unfounded evi- dence is not sustainable in law. Humayun Kabir and another. -Vs. The State. (Criminal) 10 ALR (AD) 290-297

Sections 302/34 When a commis- sion of rape was done with murder then the Sessions Case should be convert in to a case under the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995.

The Appellate Division observed that Causing of murder of any child or woman after committing rape on her is an offence which clearly comes under perview of sec- tion 6(2) of of the Nari-O-shishu Nirjatan (Bishes Bidhan)Ain, 1995 which has made these two offences of rape and murder pu- nishable with one sentence of death. In view of this section 6(2) of this Ain of 1995 it cannot be said that the commission of rape and thereafter causing of death of rape victim by the rapist are two distinct and separate offences. These offences were committed in course of some transaction. Since Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 by its section 6(2) has made these two offences punishable with one sentence of death and since this Ain of 1995, has been given overriding effect these two offences i.e. commission of rape and thereafter causing death of the victim of rape cannot be said "two distinct and separate offences".

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

Sections 302/34-FIR is not a subs- tantive piece of evidence. But where there is a clear conflict between the ver- sion given in the FIR and the story made out in the course of trial, then it becomes imperative to note the conflict between them.

The Appellate Division held that FIR is not a substantive piece of evidence. But where there is a clear conflict between the version given in the FIR and the story made out in the course of trial, then it be- comes imperative to note the conflict be- tween them. The Court is always entitled to note the conflict between the first recorded version of the prosecution case and the story that was made out in course of trial. A comparison between the two versions of the case is not only permissible but also imperative in the context of circumstances set out in the case. The FIR being the earli- est record of a case has got importance enabling the Court to see what the prose- cution case was when it was started and to check up any subsequent embellishment or any departure from the case as it proceeds through different stages.

Salim and others. -Vs. The State. (Criminal) 9 ALR (AD) 254-258

Sections 302 and 304 -The accused- appellant was a mere boy of 17 years only at the time of commission of the al- leged offence and that this fact also can be considered for mitigation of the sentence.

The Appellate Division held that consi- dering the submissions of the learned ad- vocate for the accused-appellant and also the facts and circumstances- specially con- sidering the fact that this accused-appellant was a mere boy of 17 years only at the time of commission of the murder we are in- clined to reduce his sentence-from death penalty to life imprisonment. Accordingly it is ordered that this criminal appeal be dismissed. The conviction of this accused- appellant under section 302 of the Penal Code be upheld. However, his sentence of death penalty be modified to life impri- sonment. Moinuddin -Vs.- The state (Criminal) 13 ALR (AD) 47-49

Sections 302 and 109-In view of the evidence the Appellate Division held that the appellant could not be solely saddled with the "short gun fire injury on the de- ceased, Abdur Rakib" resulting in his death, particularly when the other accused had also guns and they fired from their guns as well. In view of the matter, the High Court Division took the right decision in affirming the sentence of death awarded to the appellant. Appellate Division is of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprison- ment for life with fine.

যখন দেখা যাবে দুপক্ষই গুলি ছুরেছিল তখন পুরোপুরি দাবী করা যায় না কে গুলি ছুরেছে।

গৃহীত সাক্ষ্য প্রমাণের ভিত্তিতে আপীল বিভাগ মন্তব্য করেন যে, মৃত ব্যক্তি আব্দুর রকিব এর ওপর বন্দুক দিয়ে গুলি করে তাকে বাদী হত্যা করেছে তেমনটি পুরোপুরি দাবী করা যায় না। বিশেষ করে যখন অপর আসামীর হাতেও বন্দুক ছিল এবং তারাও গুলি ছুড়েছিল। Momtaj Ali @ Babul Vs. The State (Criminal) 7 ALR (AD) 36

Section 302 read with Cr. PC-Only F.I.R is not evidence at all.

The Appellate Division held that an FIR is the earliest information made to the po- lice over the incident suspecting some ac- cused persons as assailants and sometimes the name of the accused persons are not mentioned. This F.I.R is not evidence at all. It furnishes a clue to the investigating agency to find out the accused persons against whom it found prima facie evidence to connect them with the offence. It can be used for the purpose of corroboration or contradiction of the maker only. It has no evidenciary value at all except that the accused persons have been suspected as assailants. Aminul Islam Bulbul Vs. The State (Criminal) 8 ALR (AD) 101-106

Section 302-Dying declaration

The Appellate Division held that consi- dering the dying declaration, the F.I.R. and all other facts and circumstances Appellate Division is of the opinion that the courts below were not justified in finding these accused-appellants guilty under section 302 of the Penal Code. Appellate Division finds that the evidence adduced in this case though are sufficient to find these accused- appellants guilty under section 304, part-I of the Penal Code but are not sufficient at all to find them guilty under section 302 of the Penal Code. Rafique Hazari and others -Vs.- The State (Criminal) 9 ALR (AD) 8-11

Sections 302 and 304 -The Appel- late Division altered the conviction of the accused appellants from under section 302 of the Penal Code to a conviction under section 304, part-1 of the Penal Code.

The conviction of the accused- appellants under section 302 of the Penal Code is altered to a conviction under section 304, part-I of the Penal Code and the sentence of life imprisonment be altered to a sentence of rigorous imprisonment for the period they have already un undergone. The conviction of the accused-appellants under section 148 of the Penal Code and sentence thereunder of 2 years rigorous imprison- ment with fine of Tk.1,000/-, in default, to suffer rigorous imprisonment for 6 months more is upheld. Both the sentences shall run concurrently as directed by the trial court and affirmed by the High Court Divi- sion. Rafique Hazari and others -Vs. The State (Criminal) 9 ALR (AD) 8-11

Sections 302 and 34 -The High Court Division has no power to com- mute the sentence while maintaining the conviction under section 302/34 of the Penal Code.

The Appellate Division observed that there are as many as 6 eye witnesses and the Tribunal has thoroughly discussed their evidence while finding the petitioners guilty of the charge but the High Court Di- vision without at all considering the evi- dence on record reproduced the police re- port treating it as substantive piece of evi- dence and disposed of the matters relying upon it. What's more, the petitioners and other accused including the condemned prisoners were convicted under sections 302/34 of the Penal Code, the minimum sentence of the charge is imprisonment for life. How then the High Court Division commute their sentence to rigorous impri- sonment for 10 years without converting the charge is not clear to us? The High Court Division can alter the charge of the accused persons to one under part I or part II of section 304 and award appropriate sentence on assigning reasons if the mate- rials on record justify such alteration but it has no power to commute the sentence while maintaining the conviction under section 302/34 of the Penal Code. Such commutation of sentence is not only illegal but also without sanction of law. A. Barek and another Vs. The State (Criminal) 9 ALR (AD) 223-224

Sections 302/34-Two eye witnesses allegedly saw the occurrence from very close quarters and yet they did not narrate to the Investigating Officer the fact their evidence relating to complicity of accused becomes doubtful.

The Appellate Division held that from the evidence on record Appellate Division glean that the two eye witnesses (P.Ws 2 and 3) allegedly saw the occurrence from very close quarters and yet they did not narrate to the Investigating Officer the fact that accused Kajal, son of Ansar Ali, ap- pellant before Appellate Division held the victim allowing assailant Palash to deal a blow with sharp chhora on the chest of the victim. Thus their evidence relating to complicity of accused Kajal, son of Ansar Ali becomes doubtful. Palash and another Vs. The State (Criminal) 9 ALR (AD) 99-103

Sections 302 and 34-Whether the High Court Division is legal in acquitting the accused appellant No. 2 Hannan @ Hanu of the charge and altering the con- viction of accused-appellant No. 1 Nayan from one under section 302/34 to one under the second part of section 304 of the Penal Code and modifying the sen- fence from imprisonment for life to ri- gorous imprisonment for 10 (ten) years.

The Appellate Division held that the High Court Division upon assessment of the evidence and materials on record ac- quitted Hannan @ Hanu because in the FIR, which was lodged within about 7 hours of the occurrence, the informant did not mention that Abdul Hannan caused any injury to the victim. The High Court Divi- sion found that the allegation against Abdul Hannan was an embellishment. Appellate Division finds from the FIR that there was no specific allegation of any injury caused by accused Abdul Hannan. Moreover, Ap- pellate Division finds from cross-examina- tion of the informant, who deposed as P.W.1, that he told the Daroga about the injury caused by the accused Hannan to the İctim's head, but the Daroga did not write it. However, there is no evidence on record that the informant took any step against such omission by the Daroga. Also we note from the cross-examination of P.W. 7, the Investigating Officer that the FIR was written by the informant in his own hand. In view of such facts and circumstances, we did not find any illegality in the finding of the High Court Division that the case against accused Hannan was not proved beyond reasonable doubt. The State Vs. Nayan and another. (Criminal) 11 ALR (AD) 122-124

Sections 302/34 and 109 -The prose- cution could not prove the charges against the accused persons. So, the Ap- pellate Division did not find any error in the findings of the High Court Division.

The Appellate Division observed that the High Court Division has examined and considered the evidence on record minutely and properly and on making detailed dis- cussion assigning reasons has come to the decision that the evidence adduced by the prosecution could not prove the charges against the accused persons save and ex- cept the accused Apel only. In considera- tion of the evidence on record the Appel- late Division did not find any error in the above findings of the High Court Division. The High Court Division has assigned rea- son also for commuting the death sentence of accused Appel to imprisonment for life. The Appellate Division found no reason to interfere with this decision also of the High Court Division. Considering the facts and circumstances Appellate Division found that the commutation of sentence of death of accused Apel to imprisonment for life is justified.

The State Vs. Apeal, Jewel @ Md. Shakhawat Hossain Mollah and others. Hiru and others. (Criminal) 11 ALR (AD) 37-39

Sections 302/34/324 and 325-Evi- dence of eye-witnesses corroborated by medical evidence

The Appellate Division observed that or- dinarily Appellate Division does not inter- fere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. The High Court Division ought not to have rejected the evidence of im- portant eye witnesses and the medical evi- dence in such a serious case which resulted in four murders. The High Court Division has not cared to examine the details of the intrinsic merits of the evidence of the eye witnesses and has rejected their evidence on the general grounds. It is true that juris- diction of Appellate Division in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evi- dence in the case vitiated by some Manifest illegality or the conclusion on recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as per- verse. In the instant case, the order of acс- quittal of respondents No.1, 2, 3, 5, 6 and 7 is not reasonably sustainable on the evi- dence on record so Appellate Division is authorized to interfere with such an order of acquittal and set at naught the injustice done.

The State:-Vs. Abdus Salam and others. (Criminal) 11 ALR (AD) 64-68

Sections 302/34 -Alteration and modification of conviction and sentence from under Sections 302/34 of the Penal Code to one under sections 304 Part II/ 34 of the Penal Code.

The Appellate Division held that when in an altercation which is trivial in nature the accused without any premeditation in the hit of passion suddenly dealt blows not by any deadly weapon but by a fist on the vital organs of the victim causing bleeding inju- ries as a result the victim died not instanta- neously on the spot but in the hospital a few hours after the occurrence, the requi- site intention to commit murder could not be attributed to the accused rather he could be attributed with the knowledge that he was likely to cause death, but without any intention to cause death or to cause such bodily injuries as was likely to cause death within the perview of Section 304 part II of the Penal Code.

The State, Represented by the Deputy Commissioner, Narayangonj -Vs. Md. Rasel (Criminal) 9 ALR (AD) 230-239

Sections 302/34-Culpable homicide not amounting to murder.

There is no doubt that the death of Shanto occurred as a result of the fist blows dealt by the accused respondent Russel at the behest of the accused Rubel. Appellate Division has to decide whether the accused respondent Russel committed culpable ho- micide amounting to murder or culpable homicide not amounting to murder. In this context it is worthwhile to refer to the fol- lowing decisions of the appex courts of the Sub-Continent. In the case reported in AIR 1979 S.C 1532 the Supreme Court of India held that as a general rule a person who voluntarily inflicts injuries on another so as to endanger his life must always, except under extraordinary circumstances, be taken to know that his act is likely to cause death. In the same case the Supreme Court observed that the question whether the ac- cused had the knowledge that his act was likely to cause death is a question of fact depending upon the circumstances of the particular case, the weapon used, the part of the body on which the injuries was in- flicted, the number of the injuries caused, the deliberateness of the act etc. In the case of Jagtar Singh v. State of Punjab reported in AIR 1983 S.C. 463 the relevant fact is that the deceased Narinder Singh accompa- nied by Romesh Kumar was proceeding towards Nandan Cinema. When they were passing in front of the house of the accused appellant Jagtar Singh, deceased Narider Singh was injured by the projecting parnala of the house of the appellant. Deceased Na- rinder Singh protested to the accused ap- pellant and asked him to raise the height of the parnala. There was exchange of abuses in this back ground, accused appellant Jagtar Singh and Joginder Singh caught hold of Narinder Singh and on being insti- gated by Joginder Singh, the accused ap- pellant Jagtar Singh gave one blow with knife which landed on the chest of deceased Narinder Singh. After some time Narinder Singh succumbed to his injuries. The appellant Jagtar Singh also caused in- juries to the companion of deceased Na- rinder Singh. In this case the Court found that there was no premeditation and no malice and the quarrel took place on the spur of the moment. The meeting was a chance meeting. The appellant never ex- pected to meet the deceased. The quarrel was of the trivial nature even in such a tri- vial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. The Supreme Court of India observed: "In these circumstances, it is a permissible in- ference that the appellant at least could be imputed with a knowledge that he was likely to cause an injuries which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304, Part II of the I.P.C. and a sentence of imprisonment for 5 years will meet the ends of justice." Accordingly, the appeal was partly allowed, the conviction of the appellant for an offence under Sec- tion 302 02 of the Indian Penal Code and sen- tence of imprisonment for life were set aside. Appellant was convicted for having committed an offence under Section 304, Part II of the Indian Penal Code and he was sentenced to suffer rigorous imprisonment for 5 years.

The State, Represented by the Deputy Commissioner, Narayangonj -Vs. Md. Rasel (Criminal) 9 ALR (AD) 230-239

Section 302/109 read with Cr. PC

Section 367 (5)-If there is delay, it is not a legal ground for commutation of the sentence unless and until it is found that there are extraneous circumstances to commute the sentence.

The Appellate Division held that it is now settled that merely because of delay in confirming the sentence is not a legal ground to commute the sentence. The delay may cause due to various reasons. If the accused tries to delay in the disposal of the case, he will not get any benefit out of his act. There is nothing to show that this delay is caused due to the laches of the prosecu- tion. Moreso, Appellate Division has set- tled that even if there is delay, it is not a legal ground for commutation of the sen- tence unless and until it is found that there are extraneous circumstances to commute the sentence.

Mufti Abdul Hannan Munshi Abul Ka- lam and another. -Vs. The State (Criminal) 9 ALR (AD) 160-161

Section 302-To consider the lesser punishment from death sentence to life imprisonment mitigating evidence or circumstances must be stronger than that of aggravating evidence produced by the prosecution.

The High Court Division finds the fol- lowing circumstances outweigh the aggra- vating circumstances,

1. Condemned prisoner committed double murder without any apparent motive and was suffering from mental derailment or some sort of mental disorder and also suffering from ova- rian cyst and bronchial asthma;

2. Her paternal grandmother and mater- nal uncle had a history of psychiatric disorders according to exibit-15;

3. She was around 19[nineteen] year old at the relevant time and the occur- rence took place just immediately af- ter her attaining the age of majority;

4. She has no such significant history of prior criminal activity [criminal cases] and

5. She had willingly surrendered to the police station soon after two days of the occurrence.

Therefore, High Court Division does find extraneous grounds to commute the sentence but we do not find any reason to interfere with the conviction recorded against her under section 302 of the Penal Code. In the above facts and circumstances of the case, we are of the view that ends of justice will be met if accused Oyshee Rah- man is sentenced to one of imprison- ment for life instead of awarding her sentence to death with a fine of Tk. 5,000/-[five thousand].

The State Vs. Oyshee Rahman. (Criminal) 10 ALR (HCD) 128-144

Sections 302 and 304 -Conviction u/s 302 Penal Code altered to Section 304 part II.

The High Court Division so far it relates to the conviction of the present appellant, is upheld with modification. The conviction of the present appellant under Section 302 of the Penal Code is here hereby altered to one of under Section 304 part II of the Penal Code and therefore the sentence of impri- sonment for life of the present appellant is reduced to a sentence of 5(five) years as she has already been served out by this time as mentioned hereinabove and the im- position of fine awarded to the convict ap- pellant as of Tk. 10,000/- in default to suf- fer simple imprisonment for 6 (six) months more is hereby waived as well.

Tanjila Begum -Vs- The State (Crimi- nal) 9 ALR (HCD) 130-135

Sections 302 and 34 See also reported in The State -Vs- Md. Jamal Mollah-Vs- The State. (Criminal) 12 ALR (HCD) 37- 50

Sections 302, 34 and 114-See also re- ported in Jharu and another -Vs.- The State (Criminal) 9 ALR (AD) 22-27

Section 304-The accused gave only one blow to the left knee which is not a vital part of the body showing that he did not intend to kill the victim for which the killing cannot be termed as murder.

With regard to accused Nayan, the alle- gation is that he dealt seni blow to the knee of the victim. The High Court Division ob- served that the occurrence took place as a result of land dispute between the parties. It is admitted by the informant in his deposi- tion that there was land dispute. The High Court Division noted that accused Nayan gave only one blow to the left knee which is not a vital part of the body showing that he did not intend to kill the victim for which the killing cannot be termed as mur- der. The High Court Division concluded that it is not a case of culpable homicide amounting to murder, but one of culpable homicide not amounting to murder and, accordingly, altered the conviction to one under the second part of section 304 of the Penal Code. In the facts and circumstances discussed above, Appellate Division does not find any illegality or infirmity in the impugned judgement. Accordingly, the criminal petition for leave to appeal is dis- missed.

The State -Vs.- Nayan and another. (Criminal) 11 ALR (AD) 122-124

Sections 302 and 34

The accused was induced to make the alleged confessional statement on the assurance that he would get acquittal after trial. Considering the facts and circumstances and the evidence on record, the High Court Division came to a finding that this is a case of no evidence with regard to the appellants before it and as such, the High Court Division held that the learned Additional Sessions Judge committed illegality in convicting the appellant on the basis of exculpatory, involuntary and inadmissible confessional statement of accused Niranjan Malaker on suspicion.

The Appellate Division observed that the confessional statement, Exhibit-7, the High Court Division found that a question was put to, and answer was given by, the accused Niranjan Malaker to the effect that police proposed to him to become an approver and that the consequence of becoming an approver is that of acquittal after holding trial and that admittedly, Niranjan Malaker was not made an approver. The High Court Division, therefore, held that Niranjan Malaker was induced to make the alleged confessional statement on the assurance that he would get acquittal after trial. Considering the facts and circumstances and the evidence on record, the High Court Division came to a finding that this is a case of no evidence with regard to the appellants before it and as such, the High Court Division held that the learned Additional Sessions Judge committed illegality in convicting the appellant on the basis of exculpatory, involuntary and inadmissible confessional statement of accused Niranjan Malaker on suspicion. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of facts and laws do not call for interference by this Division. Accordingly, this petition is dismissed. The State -Vs.- Niranjan Malakar and another (Criminal) 17 ALR (AD) 103-105

Sections 302, 34 and 324-Non- examination of witnesses who came to the place just immediately after the occurrence speaks volume about the truth- fulness of this witness. Keeping away the villagers with whom she disclosed about her story of recognition of some accused, it is difficult to rely upon her since she is not an FIR named witness. Thus she not being a reliable witness.

The Appellate Division has noticed from the evidence of P.W.6 that on hearing cries she along Rina and Jali rushed to the place of occurrence and that Manikjan, Mamata, Afsar and villagers also came afterwards to whom she disclosed the identity of the ac- cused but the prosecution has not examined these persons. No explanation was given in this regard. If the High Court Division disbelieved P.W.2 on the ground of long standing blood feud between the two families, P.W.6 who stands on the same footing should also be disbelieved. Both of them made inconsistent statements. Non- examination of witnesses who came to the place just immediately after the occurrence speaks volume about the truthfulness of this witness. Keeping away the villagers with whom she disclosed about her story of recognition of some accused, it is difficult to rely upon her since she is not an FIR named witness. Thus she not being a reliable witness, the High Court Division was wrong in maintaining the conviction relying upon her testimony. Kazem Uddin alias Kazi -Vs.- The State (Criminal) 15 ALR (AD) 54-59

Section 302/34

In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate. …Sohel Dewan & ors Vs State, (Civil), 6 SCOB [2016] AD 70

Section 302

Justification for death sentence:

The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that preplan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law. There is no reason for showing any leniency or mercy to this type of offenders who are enemy for the whole society. So we are unable to accept the submission of the learned advocate for the condemned prisoners to reduce the sentence of death to life imprisonment. In our opinion this is a fit case for imposing death sentence on killers. …Shahid Ullah @ Shahid & ors Vs. The State, (Criminal), 4 SCOB [2015] AD 11

Sections 302/34, 120B

The High Court Division on a misconception of law held that the prosecution has failed to prove the conspiracy. From the evidence as discussed above, if there be any doubt about the conspiracy, it would be difficult to find out a suitable case to prove such charge. The facts found from the materials on record, the barbarity revealed in the commission of the crime and the seriousness of nature of the offence perpetrated by the accused, it would be a travesty irony if the accused persons are not convicted on the charge of conspiracy. With due respect I am unable to endorse the majority opinion that the accused-respondents cannot be convicted on the charge of criminal conspiracy. The question of the benefit of law does not arise at all for simple reason that they were charged with and defended of the charge of criminal conspiracy. If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code but their conviction would be one under sections 120B read with 302, not under sections 302/34 of the Penal Code. (Surendra Kumar Sinha, J) (Minority view) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal), 5 SCOB [2015] AD 1

Sections 302/149

Common object–

In absence of prove of the ingredients of common object, the courts below committed error of law in convicting the appellants and others under sections 302/149 of the Penal Code. To secure conviction with the aid of section 149 of the Penal Code an overt act on the part of a member of unlawful assembly is not necessarily required but participation with common object must be proved to the hilt which is absent in this case. When there is a general allegation against a large number of persons the Court will hesitate to convict all of them on theory of constructive liability on vague evidence. ...Abu Taher =VS= The State, (Criminal), 2019 (2) [7 LM (AD) 247]

Section 302

A Court cannot award any sentence other than that provided by the law:

On the question of sentence, I have to say first and foremost that the Supreme Court is neither above nor beyond the law of the land and is bound to award a sentence which is permitted by law. Hence, when awarding sentence for an offence under section 302 of the Penal Code, just as the Supreme Court could not award a sentence of “rigorous imprisonment for 20 years”, it cannot also award a sentence of “imprisonment for rest of the life”. Neither of those two punishments mentioned is permitted by the Penal Code. Section 302 provides that, “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.” Without amendment of the Penal Code, when an accused is convicted of an offence under section 302 of the said Code, the Supreme Court or any other Court cannot award any sentence of fixed term of imprisonment for a finite number of years nor “imprisonment for the natural life” or any such term. Equally, when commuting the sentence of death, a Court cannot award any sentence other than that provided by the law, which in the case of conviction under section 302 would have to be “imprisonment for life”. (Minority View) (Per Mr. Justice Muhammad Imman Ali J:) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1

Sections 302/149

Convict appellants and entitled to get the benefit of doubt–

Normally, this Division does not interfere with the concurrent findings of fact of the Courts below in the absence of very special circumstances or gross errors of law committed by the High Court Division. But where circumstances show that the accused persons are entitled to get benefit of doubt it is duty of this court to step in and correct the erroneous decision of the High Court Division. In consideration of the evidence on record as discussed, we are of the view that all the convict appellants are entitled to get the benefit of doubt. ...Abu Taher =VS= The State, (Criminal), 2019 (2) [7 LM (AD) 247]

Section 302

Commutation of death Penalty:

According to the confessional statement, the appellant out of grudge dealt the blows aimed at the head of Khadiza Begum (PW2) but that accidentally struck the head of victim Farzana and as a result of that the minor child died instantly. Taking that into consideration and all other aspects we are of the opinion to commute the sentence of death to imprisonment for life. …Masum Billah alias Md. Masum Billah Vs. The State, (Criminal), 16 SCOB [2022] AD 36

Section 302/34

The Penal Code

Section 302/34 r/w

The Code of Criminal Procedure

Section 164

Statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused–

It is the settled principle of law that the statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused, unless there is strong circumstantial and corroborative evidence to justify the statement made by the accused under section 164 of the Code of Criminal Procedure. On perusal of the 164 statement of the accused Tutul and testimony of the P.Ws.2 and 4, we are of the view that the testimony of P.Ws.2 and 4 not only supports the statement made by the accused Tutul under section 164 of the Code of Criminal Procedure but those corroborates the same. It is also proved that confessional statement was voluntary and true and properly recorded by Mr. Narayan Chandra Das, Metropolitan Magistrate, P.W.3, in accordance with law. So, there is no iota of doubt about the abduction and then killing of the deceased, Rony by the accused persons.

We are of the view that the judgment and order of conviction and sentence passed by the trial Court are not tainted or perversed, rather the impugned judgment of the High Court Division in acquitting all the convicts is upon misreading of the testimony which cannot be sustained in the eye of law. From the deposition of P.Ws.2, 3, 4 and 14 it is proved beyond all the reasonable doubt that the accused Tutul and Badal in a pre-planned manner abducted and killed Rony in front of P.W.2 Badsha. Therefore, the judgment and order so far it relates to acquitting the accused Badal and Tutul is liable to be set aside.

The sentence of death is commuted to sentence for life in respect of convict respondents Fazlur Rahman Badal and Monir Hossain Tutul. The respondents Fazlur Rahman Badal and Monir Hossain Tutul respondents in Criminal Appeal Nos.98 and 101 of 2014 are directed to surrender before the Metropolitan Additional Sessions Judge, 1st Court, Dhaka within 2(two) weeks from the date of receipt of this judgment to serve out the rest of the sentence, failing which, the said Court shall take steps to bring them in jail custody in accordance with law. …State =VS= Fazlur Rahman alias Badal, (Criminal), 2019 (2) [7 LM (AD) 269]

Sections 302/34

In many cases a single witness by the simplicity and cleanness of his narrative, by the probability and consistency of the incident he relates, by his agreement to other matters of fact too notorious to stand in need of testimony — if situation and character be taken into account, will be enough to stamp conviction on the most reluctant mind. In other in-stances, a number of witnesses, though all were to the same fact, will be found wanting in the balance. If P.W.2 is disbelieved, P.W.6 must be disbelieved straight way on the simple reason that she is not an FIR named witness and she is not corroborated by other persons who have allegedly appeared to the scene with her and that she is not wholly reliable. The judgment of the High Court Division is totally based on conjectures, surmises and hypothetic. There is another aspect which should not be ignored that the defence has examined 9 witnesses. An accused person is a competent witness for the defence and may give evidence on oath in disprove of charges made against him or any other per-sons charged together with him. If an accused is a competent witness, the witnesses examined by the accused carry similar weight. The High Court Division ought to have analyzed their evidence before finding the appellants guilty of the charge. The judgment of the High Court Division is set aside. …Kazem Uddin alias Kazi =VS= The State, (Criminal), 2019 (2) [7 LM (AD) 280]

Sections 302, 34 and 120B

The preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family– To materialise the common objective of the killing of Bangabandhu Sheikh Mujibur Rahman with the members of his family the accused appellants participated in their respective assignment covering a greater range of area starting from Cantonment, Parade Ground of Balurghat, New Airport, Mohakhali, area of Manik Mia Avenue, Mirpur Road, Ministers’ Residence, Shahbagh Radio Station, Corner of Race Course, Lake Side at Kalabagan, Dhanmondi and finally to House No.677, Road No.32, Dhanmondi, and that provisions of Section 34 of Penal Code contains rule of evidence which does not create a substantive offence and, as such, the said participations of the accused-appellants were made in furtherance of their common intention to do the illegal act of the killing of the then President with members of his family and relations comes within the purview of Section 34. In accordance with the preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family and relations and accordingly I am of the view that the convictions against the accused-appellants under Sections 302, 34 and 120B of the Penal Code do not suffer from any illegality and, as such, the same do not call for any interference by this Apex Court. Since the trial Court and the High Court Division made concurrent findings as to the commission of the offence, there is no scope at this stage to interfere with the concurrent findings of facts as to the involvement of the accused-appellants in the commission of offence and, as such, all the appeals are liable to be dismissed and the Death Reference is liable to be affirmed. (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386]

Section 302/34

Commuting the sentence of death to imprisonment life– All the eye witnesses to the occurrence categorically stated about only one blow given by the appellant, Muzibur Rahman on the head of the deceased and none said about any second attempt by him to cause further injuries or any other overt act and this fact substantiates that the appellant had no intention to cause death of the deceased. Charge sheet shows that PC and PR of the appellant is nil. And he has been languishing in death cell since 04.03.2001, that is, for more than 11(eleven) years. Considering of the case, we are of the view that justice would be best served if the sentence of death awarded to the appellant by the learned Additional Sessions Judge and confirmed by the High Court Division is commuted to imprisonment for life. ...Muzibur Rahman =VS= The State, (Criminal), 2020 [9 LM (AD) 116]

Section 302/34

Conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self-contained even it may not have received corroboration from other witnesses– On consideration of the facts and circumstances and the law discussed above along with the materials on record we find that the High Court Division was not wrong in holding that the appellant Liton participated in the offence with the common object of killing Asha, the deceased. Thus the submissions as advanced by the learned advocate for the appellant has been meticulously addressed and considered by the High Court Division while delivering the impugned judgment and order and as such the same does not call for any interference.

This Division in several cases held that conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self-contained even it may not have received corroboration from other witnesses but it stands fully corroborated by the circumstances of the case and medical evidence on record. Its fullness and completeness are enough to justify the conviction. This view finds support in the case of Abdul Hai Sikder and another Vs. The state, 43 DLR (AD)95. We do not find any merit in this appeal. Hence this criminal appeal is dismissed. ...Liton =VS= The State, (Criminal), 2020 [9 LM (AD) 315]

Sections 302/201/34

Nari O Shishu Nirjatan Daman Ain, 2000

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 302/114/34

Code of Criminal Procedure, 1898

Section 35(A)

Penal Code, 1860

Sections 302/114/34

Commuted to imprisonment for life– It was held in the case of Nazrul Islam (Md) vs. State reported in [66 DLR (AD) 199] that, ”Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, 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.” In view of the decision cited above as well as the circumstances of this case, Appellate Division is of the view that justice would be sufficiently met if the sentence of death of the appellant Mofazzal Hossain Khan @ Mofa be commuted to one of imprisonment for life. He will get the benefit of section 35(A) of the Code of Criminal Procedure, 1898 in calculation of his sentence. ...Mofazzal Hossain Khan @ Mofa =VS= The State, (Criminal), 2021(2) [11 LM (AD) 167]

Sections 302/34

Code of Criminal Procedure, 1898

Section 35A

Penal Code, 1860

Sections 302/34

Commuting a sentence of death– The youth of the person is usually taken into consideration along with other extenuating circumstances in order to commute a sentence of death passed on such a person– In the case of The State vs. Tasiruddin (1961)13 DLR 203, Morshed,J observed that in the case of extreme youth, normally, of persons in their early or middle teens, youth itself is invariably a sufficient ground for commuting a sentence of death to transportation for life(now life imprisonment). In a very rare case a youth in middle or later teens, is condemned to death. It is only in exceptional circumstances and in cases of extreme depravity that a teen-ager is awarded a death sentence. In other cases when a person is of a higher age but quite in early youth, the question of his age alone is not sufficient to justify a commutation of the sentence, and the question, namely, the youth of the person is usually taken into consideration along with other extenuating circumstances in order to commute a sentence of death passed on such a person.

This criminal appeal is dismissed and the sentence of the condemned-prisoner is commuted to imprisonment for life and to pay a fine of Tk.5000/-, in default, to suffer imprisonment for 15 days more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence. ...Samaul Haque Lalon =VS= The State, (Criminal), 2021(2) [11 LM (AD) 315]

Sections 302/120(kha)/34

Code of Criminal Procedure, 1898

Section 35A

Penal Code, 1860

Sections 302/120(kha)/34

Commute the sentence of death penalty– The severe torment and prolonged agony may be considered as an extenuating circumstance and in view of the above fact of his lengthened misery Appellate Division is inclined to modify the order of sentence and commute the sentence of death penalty to that of imprisonment for life. ...Alaich Mahmud@Ear Mahmud@Mohammad Mia =VS= State, (Criminal), 2021(2) [11 LM (AD) 323]

Section 302

Code of Criminal Procedure, 1898

Sections 35A, 164

Penal Code, 1860

Section 302

Commute the sentence of death to imprisonment for life– Appellant has suffered in the condemned cell for about 12 years and has been suffering for a much longer period in custody, since he faced the trial. He has no previous conviction according to the charge sheet and does not pose any threat to society.

According to the confessional statement, the appellant out of grudge dealt the blows aimed at the head of Khadiza Begum (PW2) but that accidentally struck the head of victim Farzana and as a result of that the minor child died instantly. Taking that into consideration and all other aspects Appellate Division is of the opinion to commute the sentence of death to imprisonment for life. Appellant 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. ...Masum Billah =VS= The State, (Criminal), 2021(2) [11 LM (AD) 395]

Section 302

Code of Criminal Procedure, 1898

Section 35A

Penal Code, 1860

Section 302

Commuting the sentence of death to imprisonment for life– Appellate Division finds also that the accused had married the victim out of a love affair and, hence, his anger would be more acute if he suspected that his wife was unfaithful. This, Appellate Division finds would have been the reason for the incident which took place after midnight. Moreover, this Division bears in mind that the couple have a child who has lost one parent and the other stands on the gallows.

In the facts and circumstances discussed above, Appellate Division is of the view that the conviction under section 302 of the Penal Code was correct. However, this Division feels that this is a fit case for commuting the sentence of death to imprisonment for life. Appellant will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and also benefit of remission. ...Nazrul Islam(Md.) =VS= Deputy Commissioner(DC), Dhaka, (Criminal), 2021(2) [11 LM (AD) 403]

Sections 302/34

Code of Criminal Procedure, 1898

Section 35A

আদালত কর্তৃক তথ্য-প্রযুক্তি ব্যবহার আইন, ২০২০

Sections 3, 4

Penal Code, 1860

Sections 302/34

The present criminal appeal and jail appeal were heard by this Division using virtual means under the provisions of the আদালত কর্তৃক তথ্য-প্রযুক্তি ব্যবহার আইন, ২০২০| The appellant has suffered in the condemned cell for about 13 years and has been suffering for a much longer period in custody, since he faced the trial. He has no previous conviction according to the charge sheet and does not pose any threat to society.

Appellate Division finds substance in the submissions of the learned Counsel for the appellant. Hence, this criminal appeal is dismissed. The sentence of death of the appellant, namely Fazlul Haque Talukder, son of Abdul Aziz Talukder of Village:Poik Khali, Police Station-Bhandaria, District-Pirojpur is commuted to imprisonment for life, and also to pay a fine of Tk. 20,000/-(twenty thousand), in default to suffer rigorous imprisonment for 6(six) months 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. ...Fazlul Haque Talukder =VS= Deputy Commissioner(DC), Barishal, (Criminal), 2021(2) [11 LM (AD) 418]

Sections 302/201 and 34

Benefit of doubt– It is clear that before the lodging of the F.I.R by P.W-1 on 23.12.1997 which has been proved and exhibited during the trial being the basis of the instant case another information as to the alleged occurrence was given to the police station on the basis of which police went to the house of the informant and after arresting Rashed took him to the police station, but the prosecution withheld the said first information given to the police which creates a doubt about the fact of the alleged extra-judicial confessional statement of accused Rashed, So, the very withholding of the first FIR by the prosecution clearly creates a doubt about the whole prosecution case, where the benefit of which must be given to the defence. In this case there is no ocular evidence of the occurrence. Though, it has been stated by some of the witnesses that respondent Rashed made extra-judicial confession admitting the killing of victim Munira. But this type of extra-judicial confession alone, in a case of the present nature and circumstances is unsafe to base. The Criminal Appeal No. 61 of 2009 is dismissed. .....The State =VS= Md. Rashed Miah, (Criminal), 2022(1) [12 LM (AD) 393]

Sections 302/34/201

The Penal Code, 1860

Sections 302/34/201

The Code of Criminal Procedure, 1898

Section 35A

Modification of sentence– 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– The appellant is in the condemned cell for more then 15(fifteen) years suffering the pangs of death. It was held in the case of Nazrul Islam (Md) vs.State reported in 66 DLR (AD) 199 that, ”Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, 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.” In view of the decisions cited above as well as the circumstances of this case, Appellate Division is of the view that justice would be sufficiently met if the sentence of death of the appellants be commuted to one of imprisonment for life. .....Monir Ahmed =VS= The State, (Criminal), 2022(1) [12 LM (AD) 413]

Section 302

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]

Sections 302/201/34

The Penal Code, 1860

Sections 302/201/34

The Code of Criminal Procedure, 1898

Section 35(A)

The sentence of death is commuted into imprisonment for life– In view the facts and circumstances of the case it is found that the trial court was correct in its decision convicting the appellant and subsequently High Court Division affirmed the same and Appellate Division also gives their opinion that the appellant was rightly found guilty by both the courts below but this Division thinks that justice would be made if the sentence of death is commuted into imprisonment for life as the appellant is in pang of death since pronouncement of the trial court and subsequent affirmation by the High Court Division and as such the sentence of death is commuted into imprisonment for life. The appellant will get the benefit of section 35(A) of the Code of Criminal Procedure in calculation of his sentence. Jail Petition No.19 of 2015 is disposed of in the light of the judgment delivered in the Criminal Appeal No.59 of 2014. .....Mohammad Ali @ Sakil =VS= The State, (Criminal), 2022(1) [12 LM (AD) 444]

Sections 302

The Penal Code, 1860

Sections 302

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– The age of the appellant at the time of commission of offences and the circumstances of this case, Appellate Division is of the view that justice would be sufficiently met if the sentence of death of the appellant Md. Rafiqul Islam alias Rafique be commuted to one of imprisonment for life. The conviction of the appellant, Md. Rafiqul Islam alias Rafique, son of Entaj Ali Mondal of Village-Golabari, Police Station-Bhuapur, District-Tangail. At present: Security Guard, Shild Bangladesh Ltd. 153, Monipuripara, Police Station-Tejgaon, District-Dhaka under section 302 of the Penal Code is upheld, however his sentence of death is commuted to imprisonment for life and also to pay a fine of Tk.10,000.00 (ten thousand), in default, to suffer rigorous imprisonment for 06 (six) months more. He will get the benefit of section 35A of the Code of Criminal Procedure, 1898 in calculation of his sentence. .....Rafiqul Islam(Md.) alias Rafique =VS= The State, (Criminal), 2022(1) [12 LM (AD) 448]

Section 302/34/109

The Penal Code, 1860

Section 302/34/109

The Code of Criminal Procedure, 1898

Section 35A

Having considered and discussed above Appellate Division has no hesitation to hold that the prosecution has been able to prove the charge under section 302/34/109 of the Penal Code brought against the present condemned prisoners beyond doubt and the trial Court as well as the High Court Division rightly found them guilty for committing such offences.

Considering the role of condemned prisoners Setabuddin and Shahab Uddin alias Saman in commission of offence as well as the factum that they were not apprehend at the place of occurrence like two other condemned prisoners, Appellate Division is of the view that justice would be best served if the sentence of death is commuted one to imprisonment for life. Accordingly, Setabuddin and Saman alias Samad is sentenced to imprisonment for life with a fine of Tk.50,000/- in default to suffer rigorous imprisonment more. The appellants Setabuddin and Saman alias Samad 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. .....Abdul Gafur(Md.) alias Milon =VS= The State, (Criminal), 2022(1) [12 LM (AD) 461]

Sections 302/34

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure, 1898

Section 35A

Modification of sentence– 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– Appellate Division is of the view that the prosecution could prove beyond reasonable doubt that the appellants have committed the offence of murder of Mohiful in furtherance of their common intention punishable under Sections 302/34 of the Penal Code, 1860. The trial Court has correctly convicted the appellants with murder and sentenced them to death under Sections 302/34 of the Penal Code, 1860 as well as the High Court Division has correctly confirmed the conviction and sentence passed by the Sessions Judge, Joypurhat. The sentence of death of the appellants namely; Md. Al-Amin alias Badsha alias Khalek, son of Thandu Pramanik alias Saydur Ali, of Village-Upashahar Rest House Para, P.O-Bogra, District-Bogra; Faraz Uddin alias Jeebon, son of late Azmat Ullah Pramanik of Village-Debchandi, P.O-Shibgonj, District-Bogra; Md. Sajib, son of Zahirul Islam, of Village-Atapara, P.O-Bogra, District-Bogra are commuted to imprisonment for life and also to pay a fine of Tk.50,000.00(fifty thousand) each, in default, to suffer rigorous imprisonment for 2(two) years more. .....Al-Amin(Md.) @Badsha @Khalek =VS= The State, (Criminal), 2022(1) [12 LM (AD) 470]

Sections 302/34/109

The Penal Code, 1860

Sections 302/34/109

The Code of Criminal Procedure, 1898

Section 35(A)

Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of Appellate Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, 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. The circumstances of this case, this Division is of the view that justice would be sufficiently met if the sentence of death of the appellants be commuted to one of imprisonment for life. All the appeals are dismissed. All the appellants 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. .....Rafiqul Islam Sheikh =VS= The State, (Criminal), 2022(1) [12 LM (AD) 484]

Sections 302, 120B, 34

Guilt of the condemned prisoner– It is a settled proposition that a common intention pre-supposes a prior concert and physical presence of the accused in the actual commission of the crime. The fact that all the accused persons were armed with deadly weapons and were physically present at the place of the occurrence and inflicted multiple injuries on the victim, which clearly prove the common intention in furtherance of executing the plan of the accused persons to kill the victim. The facts, circumstances, evidence and other materials on record led us to believe and hold that the prosecution has successfully proved the charge brought against the three condemned-prisoners as alleged. .....Alamgir Kabir @Baitta Alamgir @Manik @Iqbal =VS= State, (Criminal), 2022(1) [12 LM (AD) 593]

Section 302

Lunacy Act 1912 (IV of 1912)

Sections 3(4) and 24

Code of Criminal Procedure, 1898

Section 471

Penal Code, 1860

Section 302

Unsoundness of mind at the time of the occurrence– Nikhil Chandra Halder Vs The State where in it has been held that:- “Lunacy Act 1912 (IV of 1912) Sections 3(4) and 24-Although the accused was acquitted, he came within the definition of ‘criminal lunatic’ and was liable to be detained in an asylum for treatment.” There is no cogent reason to interfere with the same and hence, the criminal appeal is dismissed. Let respondent, Najrul be acquitted of the charge and sent to safe custody under section 471 of the Code of Criminal Procedure for taking necessary and adequate measure. ...The State =VS= Nazrul Islam, (Criminal), 2021(2) [11 LM (AD) 479]

Sections 302/34

Penal Code, 1860

Sections 302/34

Constitution of Bangladesh, 1972

Article 103(2)(b)

Commuted from death to imprisonment for life with get benefit of section 35A of the Code of Criminal Procedure– Article 103(2)(b) of the Constitution granted automatic right of appeal to the appellate Division in all death sentence cases– The Criminal Appeals being Criminal Appeal No.45 of 2012 and 48 of 2015 and Jail Petition No.15 of 2012 are dismissed. However, the sentences of the appellants Iqbal Hossain, Joynal Abedin and Zakir Hossain are commuted from death to imprisonment for life and to pay fine of tk.5,000/- each, in default, to suffer rigorous imprisonment for 15 days more. They shall get benefit of section 35A of the Code of Criminal Procedure. The Criminal Petition for Leave to Appeal No.366 of 2017 is disposed of. The judgment and order of conviction so far the same relates to accused Zaman is concerned is set aside. He is acquitted of the charge. He may be released from custody if not wanted in connection with any other case. ...Iqbal Hossain =VS= The State, (Criminal), 2021(2) [11 LM (AD) 159]

Sections 302/34

Hired killers are a threat to society and do not deserve any sympathy from this Court– It is an accepted proposition that evidence of T.I. Parade is not substantive evidence, but there are numerous decisions that the evidence is admissible and is corroborative evidence, as has been held in the case of Ibrahim Bhak & another Vs. The Crown, 7 DLR (F.C.)123 and the decision in the case of Muhammad Bashir Alam vs. The State, 10 DLR SC 21. It is un-questionable that evidence given in Court is substantive evidence. Hence, when a witness identified the accused in the Court as the assailant that evidence can be corroborated by the evidence of the T.I. Parade. There is no evidence of any enmity or grudge between the appellant and the victim. Hence, it is apparent that the killer was a mercenary who murdered the victim without any motive other than carrying out the task of killing the victim. In such view of the matter Appellate Division is of the opinion that hired killers like him are a threat to society and do not deserve any sympathy from this Court. There is no knowing who will be the victim of his next mercenary killing. The sentence of death of the appellant passed by the trial Court and affirmed by the High Court Division is maintained. ...Jashim(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 194]

Sections 302/34

Sentence of death–The prosecution was able to prove the case against the accused persons beyond reasonable doubt. Both the trial Court and the High Court Division found that the confessional statements of the accused were true and voluntary. Appellate Division finds no reason to differ from such finding. From the confessional statement of condemned prisoner Khokon it transpires that he was actively involved in their collective criminal activity from the time of the plan to hire the vehicle till the time of disposal of the dead body of the victim. The driver was a young man in the prime of his life and the accused unflinchingly extinguished his life only because they would not otherwise be able to take away the vehicle. Clearly both the condemned prisoners can be engaged and used to murder any person in cold blood for a paltry sum of money. Condemned appellant Khokon received only Tk.2,000/- for his part in their criminal venture. Clearly, they have no respect for or value human life and are indeed a menace and a threat to society. Facts and circumstances discussed above this Division does not find any reason to show leniency in such a case of cold-blooded murder. Accordingly, the conviction under sections 302/34 of the Penal Code and the sentence of death passed by the trial Court along with fine of Tk.1,00,000/- each, which was affirmed by the High Court Division is hereby upheld. The jail appeal is dismissed. ...Khokan Akanda =VS= The State, (Criminal), 2021(2) [11 LM (AD) 205]

Section 302

Sentence of death– If Appellate Division peruses the confessional statement and circumstantial evidence together it would safely be concluded that the appellant had killed an innocent school going child. Such murder was committed for a motive which evinces total depravity and meanness. The victim was subjected to inhuman acts of torture and cruelty. The measure of punishment is depended upon the conduct of the accused and the gravity of the offence. Crimes of killing child need to be severely dealt with. Protection of the children and the society and deterring the criminals are the avowed objects of law and those are required to be achieved by imposing an appropriate sentence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of murder of innocent helpless child, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. In view of such circumstances, this Division finds no illegality in the judgment and orders of the learned Courts below which calls for interfere by this Division. ...Mahbubur Rahman Titu(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 232]

Section 302

Acquittal of the charge– When the evidence shows that two views are possible- one pointing to the guilt of the appellant and other leading to his innocence and where circumstances are susceptible of two equally possible inferences, the Court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution. It may be very likely that the appellant may have administered the poison to victim Shewli but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone the appellant is entitled to get the benefit of doubt resulting in his acquittal.

Accordingly the appeal is allowed. The appellant Md. Shaheb Ali Fakir is acquitted of the charge. Consequently, the judgment and order dated 5.7.2015 passed by the High Court Division in Death Reference No.38 of 2010 and Jail Appeal No.186 of 2010 affirming the judgment and order dated 10.6.2010 passed by the Additional Sessions Judge, Second Court, Bagerhat in Sessions Case No.115 of 2008 arising out of G.R. Case No.190 of 2007 corresponding to Mollahat Police Station Case No.14 dated 28.11.2017 are hereby set aside. It is directed to release the appellant immediately if he is not wanted in connection with any other case. ...Saheb Ali Fakir(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 239]

Section 302

Death sentence– Children are vulnerable and defenseless class of victims, deserving of special protection. The children are the future of every nation. The children not only need the protection of their parents, but also need to be protected by the society at large. Killing of a child needs to be condemned and deprecated in the harshest terms legally, morally and socially. The criminal law is general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. In recent years, the rising crime rate particularly violent crime against children has made the criminal sentencing by the courts a subject of concern. The measure of punishment in a given case must depend upon the atrocity of the crime; conduct of the criminal and the defenceless and unprotected state of the victim. Having played with life of a child the appellant does not deserve any leniency and for him sympathizing on the ground sought for will be wholly uncalled for. In this case the appellant has betrayed the trust of the society and of the child. In the case at hand, the appellant killed the victim in a brutal and barbaric manner. The nature of the crime and the manner the same was committed inhumanly. It is not only betrayal of an individual trust but destruction and devastation of social trust. Appellate Division, therefore, affirms the view taken by the High Court Division. ...Zahangir(Md.) @ Thotkata Zahangir =VS= The State, (Criminal), 2021(2) [11 LM (AD) 244]

Sections 302/380/411

Sentence of death– There are the moralists who say that as Almighty Allah has given life, Allah alone has the right to take it away and this privilege cannot be usurped by any human being . There are others who believe that the death sentence cannot be taken as a retributive or deterrent factor. Fact is that death penalty is on the statute book. It has to be awarded provided the circumstances justify it. Here, two helpless women, who permitted the appellant to live with them for helping him to take better education, were killed inhumanly. One of them, was a brilliant rising doctor of the country. Appellate Division opines this is one of the case in which the extreme penalty of death is called for.

Accordingly, the appeal is dismissed. The judgment and order dated 29.05.2008 passed by the Druto Bichar Tribunal No.4, Dhaka in Druto Bichar Tribunal Case No.17 of 2007 arising out of Dhanmondi Police Station Case No.24 dated 07.03.2005 corresponding to G.R. No.144/2005 affirmed by the High Court Division in Death Reference No.62 of 2008 with Criminal Appeal No.4028 of 2008 and Jail Appeal No.721 of 2008 are hereby maintained. However, order of payment of fine is set aside. ...Aminul Islam(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 251]

Sections 302, 201 and 34

Death sentence– Confessional statement finds support from the Inquest Report (Exhibit No.03) and the Post Mortem Examination Report (Exhibit No.07) which clearly confirmed that death was due to haemorrhage and shock resulting from the injuries on the body of the victim– It is also found from the materials on record that the death of the victim was due to haemorrhage and shock resulting from stabbing injuries which were ante mortem and homicidal in nature and that it is ex-facie clear that the victim was stabbed with the intention of causing death. The evidence on record established that the appellant does not value human life and has no compunction even after he took the life of an innocent child. There is no extenuating circumstance that may impel us to take a lenient view in commuting the sentence of death as there is no mitigating or extenuating circumstances or record for the purpose of commutation of the death sentence and all the circumstances are aggravating. After perusing all the materials on record we do not find any cogent and legal ground to interfere with the judgement and order of conviction and sentence as stated therein before. In the result the appeal is dismissed. ...Khaled Hasan @Khaleque Hasan @Zakir =VS= The State, (Criminal), 2021(2) [11 LM (AD) 408]

Sections 302/34

Guidelines in respect of petition/appeal filed by accused in custody or any litigant for that matter:–

1. The jail authority must keep a record in the register of every prisoner who files an appeal or jail petition so that there is no duplication of appeal/petition before the Court.

2. The prisoner must inform the learned Advocate taking signature on a Vokalatnama if an earlier jail petition was submitted by way of appeal.

3. The prisoner must be made aware that if he has already submitted a jail petition then a further appeal is not necessary and that steps may be taken by his learned Advocate to convert the jail appeal into a regular criminal appeal.

Since the appeals in respect of appellants Jharu and Mokim were dismissed upon hearing Jail Appeal No.3 of 2016, the instant Criminal Appeal Nos.107 of 2013 and 111 of 2013 have become infructuous. Accordingly, the said criminal appeals are dismissed as infructuous. Similarly, appellant Sujan having been acquitted upon hearing Jail Petition No.8 of 2013, his Criminal Appeal No.19 of 2013 has become infructuous. Accordingly, Criminal Appeal No.19 of 2013 is dismissed as infructuous. ...Jharu =VS= The State, (Criminal), 2021(2) [11 LM (AD) 412]

Section 302

The learned Judges of the High Court Division found that all the prosecution witnesses have been gained over conviction of the respondent based on her confessional statement- In the facts of the present case, the learned Judges refused to put any reliance on the confessional Statement of the respondent in the manner and in the circumstances it has been recorded such circumstances, the learned Judges found that there was no legal evidence to sustain the conviction of the respondent and consequently acquitted her- The learned Judges having committed no illegality in sing the impugned order of acquittal. The State Vs. Jahanara Begum 4 BLT (AD)-240

Section 302

Does not fall within the section 302 of P. C- The High Court Division itself noticed that there were several serious juries on the body of the deceased but there is no evidence that the appellant had used more than one injury upon the deceased as noticed above. The High Court Division failed to notice that P. W. 11 the doctor had given his opinion that the death caused due to haemorrhage from all the id wounds. There is no evidence that the alleged axed blow by the appellant alone caused the death of Hyder Ali. It is, therefore, evident that the appellant could be convicted for causing the death of Hyder Ali. He could at best be held liable causing hurt with a dangerous (sharping) weapon but not for causing the death of Hyder Ali. The High Court vision, however, found that the appellant could not escape from the liability of inflicting such fatal blow which resulted in death of Hyder Ali. This again shows application of mind both to fact and The appellant was found guilty of the offence under section 302 of the Penal Code; but surprisingly at the end of the judgment the High Court Division affirmed the order of conviction and sentence as passed by the trial court forgetting altogether that the conviction of the appellant was recorded by the trial court under section 302/149 of the Penal Code which is a completely different kind of conviction from one under section 302 directly where the liability is personal and in the former case the liability is vicarious. Altaf Hossain Vs. The State 6 BLT (AD)-14

Section 302

In a case where two persons have been murdered at dead of night, it is but natural to inform the police first about the occurrence. Non-mentioning of any name in the F.I.R. rings a truth in the F.I.R. Shahjahan Sardar and others Vs. The State 13BLD(AD)58

Section 302

Modification of sentence of death– The death sentence imposed upon youthful offenders, even up to the age of 25 years was commuted to a sentence of transportation for life. We also note from the charge-sheet that the P.C.P.R. (previous conviction and previous record) do not disclose any previous criminal activity of the condemned petitioner which tends to show that his character is not inherently criminal in nature. We keep in mind also the fact that admittedly enmity and grudge had developed between the condemned petitioner and the victim and her family which has triggered the action of the accused.

In the case of Nalu Vs. State reported in 1 Apex Law Report’s (AD) 222, where the facts were similar, with similar mitigating circumstances, this Division commuted the sentence of death to one of imprisonment for life.

The youth the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than 812 years, we are of the view that ends of justice will be sufficiently met if the sentence of death is commuted and altered to one of imprisonment for life. Accordingly, the Jail Petition No.15 of 2010 is dismissed with modification of sentence of death. …Rahmat Ali alias Shukkur =VS= The State, (Criminal), 2020 (1) [8 LM (AD) 626]

Section 302

Nari-O-Shishu Nirjatan Daman Ain, 2000

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, [10 LM (AD) 472]

Section 302

Nari–O-Shishu Nirjatan Daman Ain, 2000

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, [10 LM (AD) 630]

Sections 302/34

Commute the sentence of death of imprisonment for life– We do not find any reason to differ from the views expressed by the trial Court and the High Court Division regarding the conviction of the accused. We respectfully agree that the condemned appellants were rightly convicted under sections 302/34 of the Penal Code.

It has been held in several cases of this Division that long periods spent in the condemned cell would not by itself mean that sentence of death should be commuted. However, we find that the appellants do not have any previous convictions, and it is unlikely that they would be a threat to society. Moreover, in her testimony PW15, Mussammat Monirunnahar, the only direct eyewitness of the occurrence, stated that the three accused persons, namely Nesar, Aksed and Kuran simultaneously assaulted the victim with knives. Seven injuries were found on various parts of the body of the victim. Hence, it is not possible to say specifically which assailant dealt the blow that led to the death of the victim. In such circumstances, we are inclined to commute the sentence of death to one of imprisonment for life.

We are of the view that ends of justice will be sufficiently met if the sentence of death imposed upon the appellants Al Haj Md. Nesar Uddin Gazi and Md. Aksed Ali Gazi is commuted to one of imprisonment for life. In addition,they are to pay a fine of Tk.5000/- each, in default to suffer rigorous imprisonment for 15 days more. ...Nesar Uddin Gazi(Al Haj Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 377]

Sections 302 and 34

Confessional statement is neither true nor voluntary. Therefore, there is no evidence on record to connect the appellant in the alleged offence– We are of the view that this confessional statement is neither true nor voluntary. Therefore, there is no evidence on record to connect the appellant in the alleged offence. Incurable inconsistencies made in the F.I.R., evidence adduced by the prosecution and confessional statement recorded under section 164 of the Code of Criminal Procedure lead to the irresistible conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubt. This criminal appeal is allowed and the appellant is acquitted of the charge levelled against him who has already been released from jail custody by the advance order dated 31.01.2021. ...Shafiqul Islam =VS= The State, (Criminal), 2021(1) [10 LM (AD) 423]

Sections 302/148, 304 Part-I

Culpable homicide– The facts and circumstances of this case lead us to believe that the appellant inflicted ‘shabol’ blow on the head of the deceased with the intention of causing grievous injuries which were likely to cause death, but the ‘shabol’ blow was inflicted at the spur of the moment in a sudden fight between the parties without any premeditation, as well being provoked by the deceased the appellant lost self-control. Moreover, the act of the appellant falls within the purview of Exception Nos.1 and 4 of Section 300 that is punishable under section 304 Part-I which provides that the act by which the death is caused is done with intention of causing death or such bodily injury as is likely to cause death. The High Court Division committed an error of law in convicting the appellant under Sections 302/148 of the Penal Code in holding that “the weapon used was sabol. The accused dealt sabol blow on the vital part of the body. All these show that the accused had intention to kill Khorshed.” The High Court Division failed to consider that, though the appellant has caused the death with the intention, he did the same in a sudden fight, in the heat of passion being provoked by the victim.

The appeal is dismissed with the modification of the sentence of the appellant. We, therefore, alter the conviction of the appellant from Section 302 to Section 304 Part–I and reduce the sentence to rigorous imprisonment for 10 (ten) years with a fine of Tk.1,000.00 (one thousand), in default to pay the fine, the appellant shall suffer rigorous imprisonment for 15(fifteen) days more. ...Abdus Samad(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 436]

Sections 302/34

Modification of sentence of death– It is well settled that the confessional statement can be the sole basis of conviction if it is made voluntarily and it is true. In the instant case, the confessional statement of the appellant is voluntary and true as well as this confessional statement supports the depositions of eye witnesses, PWs 14 and 15.

Decision cited [66 DLR(AD)199] as well as the circumstances of this case, we are of the view that justice would be sufficiently met, if the sentence of death of the appellant Md. Humayun be commuted to one of imprisonment for life. The criminal appeal is dismissed with modification of sentence of death. ...Humayun(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 446]

Sections 302/34

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, (Criminal), 2021(1) [10 LM (AD) 458]

Section 302

The chain of circumstances was complete and it was the husband who committed the murder of his wife by giving crowbar blow– It is the duty of the Court to award appropriate punishment in exercise its discretion. Facts and circumstances of this case show that it was not an attack on account of any provocation or mental derange. The act of bringing out a knife from showcase and abruptly inflicting the same on the person of the victim in the most brutal manner with severe cruelty inflicting number of injuries in a calculated manner on a helpless housewife. The killing of wife in a gruesome and diabolical manner will irrefutably be taken into consideration as aggravating circum-stances. The appellant indulged in grotesque crime of murdering his wife in presence of his daughters in a place which was the most secured place for the victim. Such killing shocks our juridical conscience. The appellant was in a position of trust but he betrayed with all his family members killing his wife who was the mother of his three children. The sentence of death of the appellant as awarded by the Tribunal and upheld by the High Court Division is hereby affirmed. ...Sirajul Islam @ Siraj =VS= The State, (Criminal), 2021(1) [10 LM (AD) 605]

Sections 302/34

The murder was cold-blooded and brutal without any provocation– The savage nature of the crime has shocked our judicial conscious; the murder was cold-blooded and brutal without any provocation. There are no extenuating or mitigating circumstances. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”. If for such heinous crime the most deterrent punishment for wanton and brutal murder is not given, the case of deterrent punishment will lose its relevance. Therefore, there is no justification to commute the death penalty to imprisonment for life. ...Syed Abdullah Al Masud @ Tipu =VS= The State, (Criminal), 2021(1) [10 LM (AD) 674]

Sections 302/ 34

The Evidence Act, 1872;

Section 157

The Penal Code, 1860;

Sections 302/ 34

Two eye witnesses were examined by the investigating officer after long lapse of time of the alleged occurrence. But it cannot be a sole ground to discard their evidence on the plea of belated examination by the investigating officer–– Find that 03(three) police officers namely P.Ws-10,11 and 12 had investigated the case. From the evidence of P.W-12 it transpires that he received the case docket and entrusted with investigation of the case on 15.09.2003 and on the following day he examined P.Ws-2 and P.W-6 and thereafter he filed the charge sheet on 17.09.2003, which clearly proves that P.W.-12, investigation officer, submitted the charge sheet after getting the job of investigation and he examined the said witnesses.

Appellate Division has no hesitation to hold that in convicting the present appellant relying on the evidence of P.Ws-2 and P.W-6, the Trial Court as well as the High Court Division did not commit any error of law. Since the evidence of P.Ws-2 and P.W-6, the eye witnesses have been found true, trust worthy and credible, this Division has no hesitation to hold that there is no scope to disbelieve the said witnesses. This Division finds no merit in the appeal. .....Shamim Uddin =VS= The State, (Criminal), 2023(2) [15 LM (AD) 184]

Sections 302/34

Sentence of death–

The appellant is a threat to law and order and a menace to society. He would do away with anyone, who stands for upholding law and order. In view of the way the victim was murdered, we do not find that the sentence of death is at all disproportionate to the crime alleged. We, therefore, do not find any illegality or infirmity in the judgement and order of the High Court Division confirming the sentence of death. .....Kamal alias Exol Kamal =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 369]

Sections 302/35 r/w sections 34 & 304

High Court Division fell in an error in finding the accused guilty under sections 302/35 and it committed further error in awarding imprisonment for life to all the accused. If section 35 attracts, their sentences will be different. The conviction of the appellants is altered to one under section 304, part I read with section 34 of the Penal Code, and thereby he is sentenced to 12 years rigorous imprisonment with a fine of taka fifty thousand each to be paid within three months from date, in default, to suffer rigorous imprisonment for two years more. The fine if realized would be paid to the victim’s widow or in her absence to the children. The appeals are dismissed with the above modification of the conviction and sentence. .....Khalil Peada =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 374]

Section 302

Nari-O-Shishu Nirjatan Daman Ain-2000 (Amended in 2003)

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 302/34

It is our opinion that the evidence of the two eye witnesses in respect of complicity of accused Kajal, son of Ansar Ali cannot be relied upon to sustain his conviction, and, accordingly, the appellant is liable to be acquitted. .....Palash =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 587]

Section-302/34

Commute the sentence of death–

The appellant Alam Sheikh of Criminal Appeal No.43 of 2012 has been in condemned-cell since 22.02.2005, that is, more than 11 years. The P.C. and P.R. of the appellant Alam Sheikh are nil and as such, he was not a habitual offender. Considering all aspects of the case, we are inclined to commute the sentence of death of imprisonment for life. .....Salim =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 595]

Sections 302/34

The evidence of the prosecution witnesses have been corroborated fully by the own confessional statements of these condemned prisoners which have been found voluntary and true by both the trial court and the appellate court. .....Shahid Ullah & others =VS= The State, (Criminal), 2016-[1 LM (AD) 595]

Sections 302/34

Absconding by itself is not an incriminating matter–– In the present case the appellant remained absconded for almost two years during the trial till he was arrested by the police. ––According to the prosecution, regarding the active participation of the appellant in committing the murder of the deceased, he is in the same footing with the other accused. So, it will be a matter of outright injustice to the appellant if the same benefit of doubt is not granted to him. On a careful consideration of the evidence on record Appellate Division is inclined to give benefit of doubt to the present appellant. .....Shahin =VS= The State, (Criminal), 2023(2) [15 LM (AD) 258]

Section 302

The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that pre- plan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law. .....Shahid Ullah & others =VS= The State, (Criminal), 2016-[1 LM (AD) 595]

Section 302/34

In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate. .....Sohel Dewan =VS= The State & another, (Criminal), 2016-[1 LM (AD) 497]

Sections 302/34

Commuted death sentences to imprisonment for life–

Druto Bichar Tribunal Case No.22 of 2005 convicting the accused -respondents herein and others under sections 302/34 of the Penal Code and sentencing them there under to death. The High Court Division reason commuted their death sentences to imprisonment for life. The High Court Division has clearly stated the reason of commuting the death sentences to imprisonment for life. The High Court Division has stated to the effect that since the age of the appellants (the convicted respondents herein) were not that much and they had just attained the age of majority they (the learned Judges) found it justified to commute the sentences of death to imprisonment for life. We find no reason to interfere with the above observation and decision of the High Court Division. .....The State =VS= Saifullah Al-Mahmood Tanvir & others, (Criminal), 2016-[1 LM (AD) 501]

Sections 302/201/34

Circumstantial evidence–

It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses. Such circumstances are totally absent in this case, particularly when the story of administering poisons is found to be doubtful. .....Haji Mahmud Ali Londoni =VS= The State, (Criminal), 2016-[1 LM (AD) 505]

Sections 302 & 109

In view of the evidence the Appellate Division held that the appellant could not be solely saddled with the "short gun fire injury on the deceased, Abdur Rakib" resulting in his death, particularly when the other accused had also guns and they fired from their guns as well. In view of the matter, the High Court Division took the right decision in affirming the sentence of death awarded to the appellant. Appellate Division is of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine. .....Momtaj Ali @ Babul =VS= The State, (Criminal), 2016-[1 LM (AD) 557]

Section 302/34

The prosecution failed to prove the case against the appellants beyond reasonable doubt–

The prosecution having totally failed to prove the case against the appellants beyond reasonable doubt the Courts below erred in law in relying upon such unfounded and uncorroborated evidence and also on the testimony of the hostile witnesses as well as upon the other evidence, uncorroborated on material particulars, which are beyond the principle of criminal justice system. As such the decision convicting and sentencing the appellants on such unfounded evidence is not sustainable in law. Hence we find merit in this appeal. The judgment and order of conviction and sentence, passed by the Court of Sessions as well as by the High Court Division against the present appellants, are set aside. The appellants are directed to be released forthwith from custody, if not wanted in connection with any other case. .....Humayun Kabir =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 214]

Sections 302/34/114

A single testimony if convincing and found to be full, complete and self contained, whether corroborated by other witness or not, is sufficient to bring home the charge and as such there will be no illegality in convicting an accused on the basis of such single evidence. The doctor who conducted the post mortem, the High Court Division categorically found that the charge against the condemned prisoner Jharu and Mokim have been proved and accordingly found them guilty for conjointly killing the victim Monowar Hossain at the courtyard of the house of Badal Sarder. After making elaborate discussions on the basis of the fact and law the High Court Division ultimately accepted the death reference against Mokim and Jharu and thereby affirmed the sentence imposed upon them. We are of the view that the condemned prisoner appellants Jharu and Mokim failed to make out a case in their favour by which the judgment and order of conviction and sentence passed by the trial Court and affirmed by the High Court Division can be interfered with. We do not find any merit in this appeal. Hence the jail appeal is dismissed. .....Jharu =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 233]

Section 302

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 302

The Code of Criminal Procedure, 1898

Section 367 (5) r/w

The Penal Code, 1860

Section 302

Capital Sentence: Bangladesh Perspective– Bangladesh, like its neighbours and majority of the commonwealth members, retain capital punishment, though it is limited to capital offences only. Bangladesh general law, as it stands today, is slightly at variance with that in India in that a sentencing Court in Bangladesh must assign reasons whether it awards death sentence or the alternative sentence of imprisonment for life, while in India, only death sentences must be justified by special reasons.

General substantive legislation i.e. the Penal Code fixes the penalty that can be awarded, while the general procedural legislation i.e the Code of Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be followed in sentencing a person convicted of an offence punishable under a penal provision of the Pena Code.

Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as amended) provides that where the Court condemns a convict with death sentence or in the alternative awards imprisonment for life or for a tem of years, the Court shall state reasons for the sentence awarded. No sentencing section in the Penal Code specify any particular sentence. They do, instead specify the maximum sentence, often with alternative, whether custodial or not, and thereby equip the Court with a great deal of discretion.

As death sentence in Bangladesh under the Penal Code is not mandatory and alternative sentence of life imprisonment can, at the discretion of the Court, as discussed above, under the heading “sentencing principles in Bangladesh”, be awarded, only in appropriate cases of murder, where aggravating factors outweigh mitigating factors, such as provocation etc. are absent death sentences are passed at the Courts’ discretion. Our Courts apply general deterrence, retribution, commensurability, proportionality rationales, motive, personal circumstances of the convict. Antecedent facts leading to the commission of the offence, play decisive role in the determination of sentence. Thus the Appellate Division in Nowsher Ali – V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar –V-State (40 DLR (AD) 139) commuted death sentence in wife killing cases because the couple’s union were not “blissful” and were rather “rancorous”.

Death sentences are however deemed appropriate when the convict act in cold blood without provocation, which are so heinous that arouse judicial indignation.

Apart from the cases of murder, which are punishable under section 302 of the Penal Code, capital punishment can be awarded for gang rape, trafficking of children, women, for seriously injuring a child or a women by acid throwing under a special legislation called Women and Children Cruelty Act, 2013. While exercising their discretion, take account of all those factors as they take in sentencing a murderer under the Penal Code provisions. (Paras:1082-1087); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Section 302/34

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]

Sections 302/34

The Evidence Act, 1872

Section 30

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure, 1898

Section 35A

Section 302/34

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 তদনুসারে 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 302/34

In the instant case charge was framed for the commission of offence that the respondent had killed his wife demanding dowry, but it is proved that he had killed his wife but demand of dowry has not been proved. Since the Tribunal has authority to try scheduled and non-scheduled offence together and it is authorized to act as Court of Sessions, we do not find any jurisdictional error if the accused is convicted and sentenced for the charge of killing wife. Such analogy is also applicable for the Appellate Court as well. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1

Sections 302/ 34

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 302

Nari-O-Shishu Nirjatan Daman Ain, 2000

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 302/34

Nari-O-Shishu Nirjatan Daman Ain, 2000

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

Sections 302/34 and 201

The Penal Code, 1860

Sections 302/34 and 201

The Code of Criminal Procedure, 1898

Section 35A

It does not require any reference to any decision for the legal proposition that in the case of killing of a wife, if it is found that wife stayed with the husband at the relevant time, the husband owes an explanation as to how his wife was killed or was done to death.

The appeal is allowed in part. The judgment and order of the High Court Division so far as it relates to respondent No.1-Tajel Sheikh @ Md. Tajul Sheikh (as described in the cause title of the petition of appeal, his correct name is Md. Tajel Sheikh as mentioned in the charge sheet and in the judgment of the trial Court) and Nurul Hoque (as described in the cause title of the petition of appeal, his correct name is Dr. Nurul Haque as mentioned in the charge sheet and the judgment of the trial Court) is set aside. The order of conviction and sentence passed by the learned Sessions Judge, Rajbari in Sessions Case No.24 of 1999 convicting them under sections 302 and 302/201 of the Penal Code respectively and sentencing Tajel Sheikh to suffer imprisonment for life and to pay a fine of taka 10,000∙00(ten thousand) in default to suffer rigorous imprisonment for 1(one) year more and sentencing Dr. Nurul Haque to suffer rigorous imprisonment for five years and to pay a fine of taka 5,000∙00 in default to suffer rigorous imprisonment for six months is restored. But Dr. Nurul Hoque shall get the benefit of section 35A of the Code of Criminal Procedure, i.e. the period which he suffered in jail hajat as under trial prisoner shall be deducted from his sentence. .....The State =VS= Tajel Sheikh @ Md. Tajul Sheikh, (Criminal), 2022(2) [13 LM (AD) 306]

Sections 302/34 or 302/109

The Constitution of Bangladesh, 1972

Article 105 and

Supreme Court of Bangladesh (Appellate Division) Rules, 1988

Order XXVI

The Penal Code, 1860

Sections 302/34 or 302/109

It is established principle of law that a judgment of the apex Court is final on both questions of law and of fact. It is precedent for itself and for all the Courts subordinate to it and the finality of the judgment cannot be impinged on. In the case in hand leave was granted in Review Petitions and thereafter criminal appeals were filed which are now under consideration in the instant judgment. As per provision of Article 105 of the Constitution of the People’s Republic of Bangladesh and Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 this Division is competent enough to reconsider or interfere with its earlier decision to prevent abuse of its process and to cure gross miscarriage of justice. ––The trial Court as well as the High Court Division and this Division by majority committed illegality misreading the evidence. In view of the reasons stated hereinabove, Appellate Division is of the view that the judgment and order dated 10.09.2014 passed by this Division with majority view dismissing the appeals and thereby convicting the accused-appellants was not justified and, therefore, the same is reviewed and all the criminal appeals arose from the Criminal Review Petitions No.68, 73,74 and 89 of 2017are allowed. .....Shamsu Habib alias Biddut =VS= The State, (Criminal), 2023(1) [14 LM (AD) 422]

Sections 302/34

Nari-O-Shishu Nirjatan Daman Ain, 2000

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

Sections 302/ 34

In a criminal case conviction can be based even on the testimony of a sole witness if it is credible– Four of them were eye witnesses and rest of them were the circumstantial witnesses who corroborated the eyewitnesses in material particulars. Appellate Division has also perused the documents namely, post-mortem report and medical examination report. In a criminal case conviction can be based even on the testimony of a sole witness if it is credible. The defence by cross-examining the prosecution witnesses could not touch the credibility of those P.W.s. The trial court and the High Court Division found that the PWs were credible. Both the trial Court and the High Court Division concurrently found that the prosecution with the evidence of P.Ws.2, 3, 4 and 5 which was corroborated by the post-mortem report and other circumstantial evidence proved the charge levelled against the accused-appellant Alais Miah @ Ilias Miah beyond reasonable doubt. Appellate Division is of the view that the prosecution has successfully proved the guilt of the accused-appellant Alais Miah @ Ilias Miah beyond reasonable doubt. The judgment and order of the High Court Division having been passed on proper assessment and consideration of material evidence on record, this Division does not find any illegality or infirmity in the impugned judgment and order and as such they do not require any interference by this Court. There is no merit in the appeal. .....Alais Miah @ Ilias Miah =VS= The State, (Criminal), 2022(2) [13 LM (AD) 293]

Sections 302/34

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure, 1898

Sections 164 and 364

Sentence of death–– From the confessional statement of the appellant, other evidence both oral and circumstantial revealed from the evidence of prosecution witnesses, Appellate Division has no hesitation to hold that the prosecution has been able to prove the charge against the appellant beyond all shadow of doubt–– This Division does not find any illegality in the judgment and order of the High Court Division. Accordingly, the appeal is dismissed. The order of conviction and sentence awarded by the trial Court and confirmed by the High Court Division is hereby maintained. .....Mizanur Rahman Mizan(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 348]

Sections 302/34

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure, 1898

Section 161

The prosecution failed to examine Investigating Officer that the defence could not avail the opportunity to take contradictions of the evidence– The prosecution failed to examine Investigating Officer of the case, Appellate Division does not find any explanation as to why the Investigating Officer had not been examined inasmuch as the defence, as it appears from the cross-examination of the prosecution witnesses, particularly, the PWs 2, 3 and 4, put questions that they did not disclose to the Investigating Officer about the fact that the appellant asked the victim to stay with him at about 8-00 pm on 3-12-1999. Due to non-examination of the Investigating Officer the defence could not avail the opportunity to take contradictions of the evidence of those 3 PWs with their previous statements recorded under section 161 of the Code of Criminal Procedure. Consequently, the defence has been prejudiced seriously. It was bounden duty of the prosecution to examine the Investigating Officer. A serious reflection is cast on the propriety of the trial itself and the validity of the conviction due to non-examination of the Investigating Officer. This Division is of the view that the appeal merits consideration. Accordingly, appeal is allowed. The judgment and order of the courts below are hereby set aside. .....Abul Hasem =VS= State, (Criminal), 2022(2) [13 LM (AD) 358]

Section 302

Death caused by lathi on the head—The accused petitioner assaulted with a lathi on the head of the deceased Md Nuru Howlader as a result of which he died when PWs 3, 4, 5 and 9 all testified about the inflicting of the injury on the head by the accused-petitioner corroborated by the PW.13, the doctor who was not cross- examined by the defence. The High Court Division rightly upheld the conviction and sentence of the petitioner. Kabir Howlader vs State 5 BLC (AD) 12.

Section 302

The learned Single Judge has failed to consider the material aspect that the first information report was lodged within one and a half hour of the occurrence and all the four eye-witnesses proved the participation of the accused in inflicting one dagger injury on the body of deceased Abu Taher @ Abu when the learned Single Judge considered some very minor and insignificant circumstances which are not at all relevant in this case as the case was well proved by as many as four eye-witnesses of the occurrence and hence the accused-respondent is found guilty under section 302 of the Penal Code and he is sentenced to suffer imprisonment for life. State vs Ful Mia 5 BLC (AD) 41

Sections 302/148/447/109 and 34

The Penal Code, 1860

Sections 302/148/447/109 and 34

The Code of Criminal Procedure, 1898

Section 35A

Sentence commuted from death to imprisonment for life– It appears from the facts and circumstances of the case that the accused persons went to the place of occurrence with an object to kill P.W.1 and entering into the place of occurrence room they asked the victim Lovely about his whereabouts and not getting the target they assaulted the victim Hosne Ara Begum Lovely who succumbed to injuries. At one stage appellant Lachu Miah @ Kamal Ahmed pressing the throat of victim Aklima Begum went outside the dwelling hut. Her dead body was recovered from a nearby pond. Coming to the facts of the case, it is proved that appellants Mujib Ali and Lachu Miah had killed victim Hosne Ara Begom Lovely and her 1½ year daughter Aklima Begom which were highly graved. Nevertheless, in view of the above discussion Appellate Division feels hesitant in endorsing the death penalty awarded to them by the trial Court and confirmed by the High Court Division. It is difficult to hold that it was pre-planned, calculated, cold-blooded murder of the victims. Moreover, they are in death cell about 14(fourteen) years. In such circumstances, their sentence may be commuted from death to imprisonment for life. .....Mujib Ali =VS= The State, (Criminal), 2022(2) [13 LM (AD) 406]

Sections 302/34

The trial Court as well as the High Court Division thoroughly considered the evidence adduced by the prosecution and came to the concurrent finding that the petitioners along with others were instrumental in causing murder of Mokies when there is no denial of the factum of murder of Mokies at the time, place and in the manner as alleged by the prosecution, the Courts below committed no illegality and wrong in finding guilt of the petitioners. Abu Jamal and another vs State 5 BLC (AD) 157.

Section 302

The Penal Code, 1860

Section 302

The Code of Criminal Procedure, 1898

Section 35A

Sentence commuted from death to imprisonment for life–– It appears that the killing of Nur Nabi @ Nabin by friend Raju was not preplanned and premeditated murder. In carrying out the order of Md. Younus @ Yousuf friend Raju took dagger from him and inflicted blows to Nur Nabi @ Nabin. In such circumstances, Appellate Division is of the view that his sentence may be commuted from death to imprisonment for life. .....Raju(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 421]

Sections 302/34

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure, 1898

Section 35A

Commuted to imprisonment for life–– It appears that the convict-appellant Rana is in the condemned cell for more than 14 (fourteen) years suffering the pangs of death. It was held in the case of Nazrul Islam (Md) vs. State reported in 66 DLR(AD) 199 that “Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, 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.” .....Gias =VS= The State, (Criminal), 2022(2) [13 LM (AD) 446]

Section 302

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 302

Right of self-defence against murder charge—

Section 100— Reduction of charge into section 304-1—permissible when there is land dispute between parties—

Right of private defence extending to voluntarily causing the death can be taken in appropriate case when reasonable apprehension of death or grievous hurt exists. Where the deceased was not armed with deadly weapon there cannot be reasonable apprehension of death or grievous hurt providing the right of self defence. In an occurrence taking place on land dispute the conviction and sentence under section 304 Part I is justified. Khondaker Saiful Islam Vs. The State— 3, MLR 1998) (AD) 117.

Section 302

Charge can not be reduced merely because deadbody was not recovered—

Conviction under section 302/34 can well be maintained when based on legal and sufficient evidence even if the deadbody cannot be recovered. There is no warrant to reduce the charge from Section 302 to 364 merely because the deadbody was not recovered. Shaha and others Vs. The State— 2, MLR(1997) (AD) 162.

Section 302

Charge of murder — Motive of murder —where there is direct evidence—

The settled position of law is that the prosecusion is not bound to prove the motive of murder where there are ocular evidence, because motive is not a necessary ingredient of the offence under section 302 of Penal Code. The failure of the prosecution to prove motive even though taken, does not render eny ground to disbelieve the prosecution case where there are material evidence of direct nature. Motive may be a matter for consideration specially when the case is based on circumstantial evidence. In a case of gruesome murder scrutiny of evidences on record must be made with great care. Reducing the sentence of death into R.I. for 10 years under section 304 in a case involving four murders in light hearted manner attended with non-application of judicial mind, surmise and conjecture, contradictory and incoherent findings unrelated with the evidence on record are held to be perverse occasioning failure of justice. State represented by the Solicitor of the Government of Bangladesh Vs. Giasuddin and others— 4, MLR (1999) (AD) 29.

Section 302

Ocular evidence—

Conviction and sentence passed on proper appreciation of ocular evidence cannot be interfered with. Sentence reduced by the High Court Division can not be further reduced. Babul Farajee Vs. The State— 4, MLR (1999) (AD) 149.

Sections 302/34

নারী ও শিশু নির্যাতন দমন আইন, ২০০০

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 302/34

Delay in furnishing post mortem report— Effect of—

Delay of 7 days in furnishing post mortem report is no ground for interference with the conviction and sentence. There is no scope to reduce the sentence of life imprisonment under section 302. Sabiruddin Mondal Vs. The State— 4, MLR (1999) (AD) 151.

Section 302

murder charge— Delay is not always a ground for altering sentence of death—

Delay by itself is not extenuating circumstance for commutation of the sentence of death into imprisonment for life. The condemned prisoner suffering from a bitter sense of being wronged by his way ward wife together with delay merit such commutation. Zahiruddin Vs. The State— 1, MLR (1996) (AD) 248.

Section 302, 303

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

Section 302/34

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 302

Nari-O-Shishu Nirjatan Daman Ain 2000,

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 302

The Penal Code, 1860

Section 302

The Code of Criminal Procedure

Section 35A

Nari-o-Shishu Nirjatan Daman Ain-2000 (amended in 2003)

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]

Sections 302/34/114

Dying declaration–– P.Ws.1, 2, 3, 4, 5, 7 and 8 are interested witnesses and the alleged dying declaration made orally in presence of those interested witnesses cannot be safe to be relied on–– If a dying declaration is made voluntarily and is found to be genuine and is free from all reasonable doubt keeping in view all the evidence on record it is legal to convict the accused. But in the present case, it has already been found that P.Ws.1, 2, 3, 4, 5, 7 and 8 are interested witnesses and the alleged dying declaration made orally in presence of those interested witnesses cannot be safe to be relied on. More so, P.W.9, the doctor performing autopsy of the deceased stated in his cross-examination that the death of the victim took place instantly after receiving the injuries from which it is logically deduced that the victim was not in a fit condition to make dying declaration. In view of the foregoing discussion, Appellate Division finds that the alleged dying declaration of the victim is not found to be genuine and as such the conviction of the accused Md. Shamim on the basis of the said dying declaration is not tenable in the eye of law. ––The trial Court as well as the High Court Division committed illegality misreading the evidence in so far as it relates to the accused Md. Shamim. For the reasons stated hereinabove, Appellate Division is of the view that the judgment and order convicting the convict-appellant Md. Shamim is not justified and, therefore, this Criminal Appeal is liable to be allowed. .....Shamim(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 268]

Sections 302/34

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure

Section 35A

Sentence commuted from death to imprisonment for life–– The judgment and order of conviction awarded by the trial Court and affirmed by the High Court Division is hereby maintained. However, the sentence of the appellants is commuted from death to one of imprisonment for life and they are ordered to pay a fine of Tk.50,000/- each, in default, to suffer rigorous imprisonment for 1 (one) year more. The appellants shall get benefit of section 35A of the Code of Criminal Procedure in calculation of their sentence and other remissions as admissible under the Jail Code. ––Learned Senior Counsel, lastly submits that considering the facts and circumstances of the case and that the appellants are in death cell for about 14 years the sentence awarded to them may be commuted to imprisonment for life. Appellate Division finds force in the submissions. .....Mehedi Hasan(Md.) alias Rajib =VS= The State, (Criminal), 2023(1) [14 LM (AD) 397]

Sections 302/34

The Penal Code, 1860

Sections 302/34

The Code of Criminal Procedure

Section 35A

Youth of the condemned-prisoner at the time of commission of the offence–– It appears from documents on record that the condemned prisoner was apprehended in connection of the present case on 20.04.2007 and since then he remained in normal cell till delivery of the verdict by the trial Court. He was sent to condemned cell after pronouncement of the judgment and order of conviction and sentence by the trial Court on 08.10.2009, which indicates that he has suffered long pangs of the death in the condemned cell for around 13[thirteen] years and more than 3[three] years in normal cell. Long suffering in the condemned cell as well as normal cell may, sometimes, take into consideration of punishment to be commuted relying upon the facts and circumstances of the case as noted above. ––It is also evident that the condemned prisoner was twenty years old at time of occurrence and arrest. Appellate Division has given Appellate Division’s anxious thought over the duration of suffering both in the normal cell as well as condemned cell and age of the condemned prisoner and the facts and circumstances of the case. ––This criminal appeal is dismissed with modification. However, the sentence of death of the condemned prisoner is commuted to imprisonment for life and also to pay a fine of taka 5,000.00, in default, to suffer rigorous imprisonment for 1[one] year more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence. .....Montu Rahman(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 413]

Sections 302/34

PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel–

We find from the impugned judgement that the High Court Division has correctly analysed the evidence and materials on record. Clearly the death-blow was dealt to the prosecution case by the fact that the only eyewitness, namely PW 9 stated to the informant PW 1 that some unknown miscreants committed the offence. The High Court Division correctly observed that at the earliest point of time PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel. We do not find any infirmity in the judgement of the High Court Division with regard to the respondents in Criminal Appeals No.61-62 and 64 of 2015. ...State =VS= Md Zakir Hossain, (Criminal), 2019 (1) [6 LM (AD) 260]

Sections 302/34

Wife killing case–– To how the death sentence could be reduced to that of the imprisonment for life. Different pleas were taken for consideration of commutation of death sentence as there was no absolute rule in this regard. Prolonged incarceration of the condemned prisoner in the condemned cell could be considered as mitigating circumstances in some cases. Record of previous significant history of criminal activity along with age of the condemned prisoner has also been considered for commutation of death sentence to imprisonment for life in some other cases. ––The present case in Appellate Division’s hand is known as wife killing case. The wife was killed in the house of the respondent. The prosecution by adducing evidence proved the case beyond shadow of doubt against the respondent as discussed earlier, but the question is, prolonged incarceration spent in the prison including condemned cell is not because of fault of the respondent which could be considered as an extenuating ground for commutation of death sentence to life imprisonment. It appears from the record that the respondent has been in prison since his arrest dated 28.12.1998. His custody never changed granting him on bail. More than 21/2 years he served out with pangs and agony of the death in the condemned cell till delivery of the impugned judgment and order dated 07.01.2004 of the High Court Division. Nevertheless, the respondent has no previous conviction and previous record [PC.PR] which trends to show that his character is not inherent. ––Facts and circumstances of the case, it is Appellate Division’s considered view that the decision of the learned Judges of the High Court Division stands justified and the judgment and order of the High Court Division does not call for any interference by this Division. This criminal appeal is dismissed without any order as to costs. .....The State =VS= Abu Sayed, (Criminal), 2023(1) [14 LM (AD) 590]

Section 302

On examination of the entire evidence on record, it transpires that no eye witness was examined by the prosecution showing that the convict appellant murdered deceased Chande Ali–

Considering the totality of the evidence on record, it is evident that though the prosecution could prove that Chande Ali was murdered but failed to prove that the appellant caused his death. Therefore, the conviction and sentence of the convict-appellant under section 302 of the Penal Code by the trial Court as well as affirmation thereof by the High Court Division was not justified. The judgment and order dated 30.09.2010 passed by the High Court Division in Criminal Jail Appeal No.639 of 2006 dismissing the said appeal and thereby affirming the judgment and order of conviction and sentence dated 11.06.2001 passed by the learned Additional Sessions Judge, Barisal in Sessions Case No.08 of 1995 is hereby set-aside and the convict-appellant is acquitted of the charge under section 302 of the Penal Code. The convict-appellant be set at liberty at once. ...Babul alias Fakrul =VS= The State, (Criminal), 2019 (1) [6 LM (AD) 181]

Section 302/201/34

The Penal Code, 1860

Section 302/201/34

Supreme Court of Bangladesh (Appellate Division) Rules, 1988

Rule 1 of Order XXVI (Part IV)

A review cannot be granted to urge fresh grounds when the judgment itself does not reveal an error apparent on the face of the record–– The nature of the offence it appears to us that the petitioner is in no way entitled to get any sympathy. Appellate Division does not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. ––This Division is of the view that there is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition. Further in the instant petition the learned counsel fails to point out any error in the judgment apparent on the face of the record. Therefore, all the review petitions merit no consideration and accordingly those are dismissed. .....Zahangir Alam(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 607]

Section 302

Charge when can be altered—

When there is no derict evidence that the convict-appellant inflicted the fatal injury to the deceased, the charge under section 302 of the Penal Code is altered into one under section 302/109 for abetment. Billal Vs. The State—5, MLR (2000) (AD) 244.

Section 303

Only provision in which the court cannot exercise the discretionary power in awarding the sentence is section 303, which provides that “whoever, being under sentence of imprisonment for life commits murder shall be punished with death”. I find no rational justification for making a distinction in the matter of punishment between two classes of offenders, one is, under the sentence of life imprisonment, who commits murder whilst another, not under the sentence of life imprisonment. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1

Section 303- The provisions of sub- sections (2) and (4) of section 6 deprive a tribunal from discharging it's constitu tional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus, there is no gainsaying that sub-sections (2) and (4) of section 6 of the Ain as well as section 303 of the Code run contrary to those statutory safe-guards which give a tribunal the discretion in the matter of imposing sentence. Bangladesh Legal Aid and Services Trust (BLAST) vs State, 67 DLR (AD) 185

Section 304- Section 304 of the Penal Code, which consists of two parts, does not create any offence, but provides for punishment of culp- able homicide not amounting to murder. The first part applies to a case where there is guilty inten- tion and the second part applies where there is no such intention, but there is guilty knowledge. Nibir Ch. Chowdhury vs State 53 DLR (AD) 113.

Section 304 Part II-The injury caused was not on the vital part and there was no evidence that the accused knew about the pregnancy of the victim. Under the circumstances the accused com- mitted an offence punishable under section 304 Part-II of the Code. State vs Abdul Barek 54 DLR (AD) 28.

Section 304- Part I-Culpable homicide- Intention to cause death-From the evidence there can be no manner of doubt that the assault was done with the intention of causing such bodily injury as was likely to cause death. The accused- husband was not content by striking his wife with a branch of a tree but was reckless enough to kick her in the tender part of her body which immediately caused bleeding. It was not a case of mere knowledge only (to constitute offence under section 304 Part II) that such act was likely to cause death but that the intention to cause such injury as is likely to cause death was very clear. It is true there is no finding as to "intention" either in the impugned judgment or in the judgment of the trial Court. This is certainly not desirable because the law requires a clear finding as to "intention" before recording a conviction under Part I of section 304. Notwithstanding the absence of the requisite finding as to intention, the appellant-husband was rightly convicted. Jatin Chandra Sil vs State 43 DLR (AD) 223.

Section 304 Part I-Respondent by inflict- ing the injury on the chest resulting the death of the victim committed an offence under section 304 Part-1 of the Code for causing the bodily injury as was likely to cause death. State vs Abdul Barek 54 DLR (AD) 28.

Section 304-From the facts and cir- cumstances of the case and in view of the aforesaid decisions Appellate Division is of the view that the accused respondent in the heat of passion suddenly dealt fist blows to the nose, mouth and head of the victim Shanto causing bleeding injuries and there- fore the requisite intention to commit mur- der could not be attributed to the accused respondent, rather he could be attributed with the knowledge that he was likely to cause death but without any intention to cause death or to cause such bodily injuries as was likely to cause death which brings the case within the purview of Section 304 Part II of the Penal Code. Therefore, the High Court Division rightly found that the accused respondent Rasel Russel commit- ted culpable homicide not amounting to murder under sections 304 Part II/34 of the Penal Code and convicted and Sentenced him there under to suffer rigorous impri- sonment for 10 years and to pay a fine of Tk. 10,000/- in default to rigorous impri- sonment for 1 (one) year more.

The State, Represented by the Deputy Commissioner, Narayangonj -Vs.- Md. Rasel (Criminal) 9 ALR (AD) 230-239

Section 304 (Part II)

Death sentence modification to suffer rigorous imprisonment for 10(ten) years–– Appellate Division is of the view that the offence committed by the appellant is not culpable homicide amounting to murder. Moreover, there is nothing on record suggested that the appellant intended to cause the death of his son. In such view of the matter this Division is of the opinion that the offence committed by the appellant falls within the second part of section 304 of the Penal Code. Accordingly the jail appeal is allowed in part. The conviction of the appellant is altered from one under section 302 to one under the second part of section 304 of the Penal Code. The appellant is sentenced to suffer rigorous imprisonment for 10(ten) years. Since the appellant has been in custody from the date of his arrest on 02.04.2007, the sentence awarded by us has been served out. Accordingly, the appellant is directed to be released from jail forthwith unless he is wanted in connection with any other case. ...Jasim Rari(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 426]

Section 304 Part-1 and Section 304 Part-II

A case of gruesome double murder

We have already noticed and agree w the finding of the trial court that there was neither any object of murdering anybody nor was there any such intention. From the evidence of P.W. 14 Dr. Shah Jamai who held autopsy on the dead body of Fakku Mia. It is found that he received several grievous injuries including one on the chest inflicted by Harunur Rashid and another on the abdominal cavity which pierced the surface of the liver inflicted by unknown assailant and as such it cannot said that the death was the most likely result of the injury on the chest and the doctor also did not depose so. We therefore, hold that respondent Harunur Rashid by inflicting the injury on the chest of Fakku Mia resulting the death of the victim committed an offense under Sect-ion 304 Part 1 of the penal Code for causing the bodily injury as was likely to cause death and in fact the death was caused. The injury caused by the other respondent Jahirul Hoque alias Jaju was not on the vital part of Bakul Bibi and we have already noticed that there was no evidence to the effect that said Jahirul Hoque knew about the pregnancy of Bakul Bibi. Under the circumstances Jahirul Hoque committed an offence punishable under Section 304 Part-II of the Penal Code. State Vs. Abdul Barek & Ors. 10 BLT (AD)-8

Section 304, Part-1

Accused Aynul Sheikh was privy to the offence of murder of the victim Abdul Gafur Sheikh. There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. Aynul Sheikh and Anr. Vs. The State 14 BLT (AD)- 33

Section 304

Section 304 of the Penal Code, which consists of two parts, does not create an offence, but provides for punishment culpable homicide not amounting to murder. The first part applies to a case where there guilty intention and the second part applies where there is no such intention, but there guilty knowledge. Nibir Chandra Chowdhury and Anr. Vs. State 9 BLT (AD)-272

Section 304 (Part I)

The Appellate Division is of the view that the offence attracts section 304 of the Penal Code, which contains two parts. The evidence on record proved that the appellant intentionally inflicted the injury/injuries with a pistol aiming the abdomen and chest either to cause death or to cause such bodily injury which is likely to cause death and therefore, his act attracts Part I of section 304 of the Penal Code. Since the appellant used a pistol and shot at chest, he deserves the maximum sentence provided in Part I of Section 304 and shall also liable to fine. .....Tofayel Ahmed =VS= The State, (Criminal), 2016-[1 LM (AD) 511]

Sections 304 (Part I, II) read with section 300

Culpable homicide–

An offence of culpable homicide may or may not amount to murder but all murders are culpable homicide. Even if the culpable homicide attracts section 300, if any of the special exceptions provided in section 300 is attracted, then also the offence will be culpable homicide not amounting to murder punishable under either part I or Part II of section 304. It depends upon the facts and circumstances of each case. .....Khalil Peada =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 374]

Section 304 (Part II)

High Court Division has totally misread the medical evidence–

The High Court Division has totally ignored that aspect of the matter and wrongly held that the appellants caused the injuries with deadly weapons resulting to the death of the victim. It has totally misread the medical evidence. The case attracts an offence of culpable homicide not amounting to murder and accordingly, we covert the conviction of the appellants to one under section 304 Part II of the Penal Code and reduce their sentence for the period they have already under gone. The appellants be set at liberty at once if not wanted connection in any other case. The appeal is dismissed with the modification of the conviction and sentence. .....Firoz Ali =VS= The State, (Criminal), 2018 (2) [5 LM (AD) 223]

Section 304(second part) read with 302/34

Culpable homicide–

It is admitted by the informant in his deposition that there was land dispute. The High Court Division noted that accused Nayan gave only one blow to the left knee which is not a vital part of the body showing that he did not intend to kill the victim for which the killing cannot be termed as murder. The High Court Division concluded that it is not a case of culpable homicide amounting to murder, but one of culpable homicide not amounting to murder and, accordingly, altered the conviction to one under the second part of section 304 of the Penal Code. .....The State =VS= Nayan, (Criminal), 2018 (1) [4 LM (AD) 523]

Section 304 (Part-II)

Culpable homicide not amounting to murder rather it can at best be held that the death of the victim was caused not with the intention of causing death– It appears that the accused petitioner admittedly had altercations and quarrel with the victim and at one stage when the victim caught hold of his collar it prompted rather provoked the convict-petitioner to catch hold of her neck/throat and accordingly at one stage the victim died. This cannot be termed as culpable homicide not amounting to murder rather it can at best be held that the death of the victim was caused not with the intention of causing death or causing bodily injury as was likely to cause death. The conviction and sentence as handed down by the trial Court and subsequently by the High Court Division is modified upon converting the same under section 304 (Part-II) and accordingly the sentence which has been handed down by the High Court Division be reduced to the sentence already undergone. The convict-petitioner Md Sukur Ali, son of late Md Rostom Ali Bepari, Village-Uttar Boyra, Police Station-Sonatola, District-Bogra, be released from the custody at once if not wanted in connection with any other case(s). .....Sukur Ali (Md) =VS= State, (Criminal), 2022(2) [13 LM (AD) 433]

Sections 304/34-Reducing the sen- tence of the appellant from imprison- ment for life to 10(ten) years rigorous imprisonment to the period he has al- ready undergone.

The Appellate Division found that the accused-appellant Samar Uddin is an old man and he has already served out almost the entire period of his sentence of 10 years imprisonment and in the circumstances. The Appellate Division held that the ends of justice will not be defeated if the sen- tence of the accused-appellant is reduced from 10(ten) years rigorous imprisonment to the period he has already undergone.

Samar Uddin and another -Vs. The State. (Criminal) 11 ALR (AD) 61-63

Section 304 Part II -Medical evi- dence

An offence of culpable homicide not amounting to murder.

The Appellate Division observed that the High Court Division has totally ignored that aspect of the matter and wrongly held that the appellants caused the injuries with deadly weapons resulting to the death of the victim. It has totally misread the medi- cal evidence. The case attracts an offence of culpable homicide not amounting to murder and accordingly, Appellate Divi- sion covert the conviction of the appellants to one under section 304 Part II of the Penal Code and reduce their sentence for the period they have already under gone. Firoz Ali and another: Vs. The State: (Criminal) 10 ALR (AD) 330-331

Part I of section 304-The Appellate Division is of the view that the offence at- tracts section 304 of the Penal Code, which contains two parts. The evidence on record proved that the appellant intentionally in- flicted the injury/injuries with a pistol aiming the abdomen and chest either to cause death or to cause such bodily injury which is likely to cause death and there- fore, his act attracts Part I of section 304 of the Penal Code. Since the appellant used a pistol and shot at chest, he deserves the maximum sentence provided in Part I of Section 304 and shall also liable to fine. Tofayel Ahmed @ Josef -Vs.- The State (Criminal) 8 ALR (AD) 45-54

Sections 307/34- Suspicion is not substitute of evidence. A faint doubt means a doubt without any reasonable basis. No benefit of doubt is contemplated in law.

Reversal of the appellate Court's finding will not bring the case within the ambit of murder under section 302 PC.

Trial Court arrived at the finding that these injuries constitute murder. It is the degree of probability of death from certain injuries which determines whether the injuries constitute murder or culpable homicide not amounting to murder. State vs Tayeb Ali 40 DLR (AD) 6.

Section 307 read with

Evidence Act [I of 1872]

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 307 and 324

On the face of being tutored, untrustworthy interested and partisan witnesses; having previous enmity with the accused and non-corroboration of incriminating evidences the other part of the evidences concerning the infliction of injuries over the victims became less than trustworthy without independent corroboration. Appellate Division finds no such corroboration. Accordingly, this Division too holds that it will be rationally perilous if the accused convicted on such unreliable evidences. Consequently, this Division finds no merit in the submissions of the learned Deputy Attorney General for the State. This Division finds no error in discussion of the evidence and conclusion of the High Court Division regarding the acquittal awarded to the accused appellant. .....The State =VS= Muhammad Shafi Alam @Md. Shafi Alam @Shafiul Alam, (Criminal), 2022(1) [12 LM (AD) 383]

Section 315-Prosecution for cheating- Plea of civil liability-The sum and substance of the complainant's case is that the accused realised a total sum of Tk. 50,000 from the complainant on a promise to secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused in support of his application under section 561A CrPC was that the liability, if any, was of a civil nature for which no prosecution would lie. Since, according to the petition of complaint, he accused totally denied receipt of any sum from the complainant, the question of civil liability does not arise. Abdur Rahim vs Enamul Huq 43 DLR (AD) 173.

Sections 319 and 320-Hurt has been defined in section 319 of the Penal Code and grievous hurt has been defined in section 320 thereof. In the Ain, 2000, the word 'hurt' has not been defined and consequently the meaning might constitute 'grievous' or 'simple' hurt. Nurul Huda (Md) vs State, represented by the DC. Lalmonirhat, 67 DLR (AD) 231

Section 320-The mere fact that the victim luckily survived for weeks on account of treat- ment in the hospital is no ground to award lesser sentence. Ershad Ali Sikder vs State 57 DLR (AD) 75.

Section 320

Ingredients —grievous hut —in the instant case though dagger were used by the two appellants —Md. Shamir @ Shamir Khan and Shamsul Haque @ Shamsul Khan but none of the injured persons were in the hospital for twenty days and there is no evidence that the injured person failed to pursue their normal avocations for twenty days. P.W. 3 claimed that the sustained injury in the hand and was a hospital for seven days. The medical report has also not supported the prosecution allegation that these two appellants caused grievous hut as defined in section 320 of the Penal Code. Md. Shamir @ Shamir Khan & Anr. Vs. The State 11 BLT(AD)-6

Sections 320 and 326

Although the doctor deposed that the injuries he found were grievous in nature but those injuries are not grievous as contemplated under section 320 of the Penal Code. Aminul Islam alias Ranga and others vs State 5 BLC (AD) 179.

Sections 320/120B-Whether the accused can be convicted under sections 302/120B of the Penal Code relying upon the confessions.

The Appellate Division held that in the present case the confessions have been corroborated by circumstantial evidence proved by the witnesses. Even if there is no corroborating evidence, if a confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker of the statement relying upon it subject to the conditions mentioned above. In view of the above proposition of law, there is no legal ground to interfere with the conviction of the appellants and co- accused since the confessions are not only inculpatory but also true and voluntary. Deliberate and voluntary confession of guilt, if clearly proved, are among the most effectual proofs in the law their value de- pending on the sound presumption that a rational being will not make admission prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience. Mufti Abdul Hannan Munshi alias Abul Kalam and another Vs. The State (Criminal) 19 ALR (AD) 126-141

Section 323

An occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence– On scrutiny of the post-mortem report, we find that no particular mention has been made of existence or non-existence of any injury to the eyes of the victim, as there is no specific column in the form of the post-mortem report for the eyes. On the other hand, the inquest report shows that injury to the eyes was noted by the SI of Police. The evidence of PWs 1 and 4 supports the FIR story that the accused-appellant caused an injury to the left eye of the victim with a bamboo stick.

There remains no doubt that an occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence. However, in view of the facts and circumstances of the case. The alleged nature of the injury caused by the accused-appellant, we are of the opinion that conviction under section 323 of the Penal Code would be more appropriate and that the ends of justice will be sufficiently met if the sentence of the appellant is modified to the period already undergone by him in custody. Tthe appeal is dismissed with the modification of conviction and sentence. …Rafiqul Islam Howlader(Md) =VS= State, (Criminal), 2020 (1) [8 LM (AD) 630]

Sections 323/364/379

The police has submitted charge sheet against the accused persons and the trial court also, on examination and consideration of the materials on record, found a prima facie case against the accused persons. So, The framing of charge against them was not illegal. …Selim (Md) =VS= State, (Criminal), 2020 (1) [8 LM (AD) 360]

Sections 323, 325, 326 and 307

The Code of Criminal Procedure, 1898

Section 561A r/w

Penal Code, 1860 (XLV of 1860)

Sections 323, 325, 326 and 307

Considering the facts and circumstances we do not find that the learned Additional Metropolitan Sessions Judge, 2nd Court, Dhaka has committed any wrong or illegality in setting aside the impugned order dated 29.07.1999 passed by the learned C.M.M., Dhaka dismissing the case and as such the High Court Division also did not commit any wrong or illegality in upholding this judgment and order passed in Criminal Revision No.906 of 1999. .....Md. Shahidul Islam =VS= Shopon Bepari & another, [1 LM (AD) 530]

Sections 324 and 326

As the Convict- appellant having not given the fikal blow (injury No. 1) he cannot be incriminated for the offence of section 326 of the Penal Code but he must be found guilty under section 324 of the Penal Code as he had inflicted one of the other two injuries which is simple in nature. Abdul Jalil vs State 4 BLC (AD) 12.

Section 324-Injury by stone-From the nature of injury found on the parietal region of head of the deceased, a piece of stone can be termed as a weapon of offence and accordingly, the Court rightly convicted the appellant under section 324 of the Penal Code. Mashuq Mia @ Iqbal vs State 57 DLR (AD) 71.

Section 325

Probation of Offenders Ordinance, 1960

Sections 3(1)(Ka), 5

The Penal Code, 1860

Section 325

বিচারিক আদালতের বিজ্ঞ বিচারক ও আপিল আদালতের বিজ্ঞ বিচারক সম্পূর্ণরূপে ভুলে গেছেন যে, আমাদের দেশে "প্রবেশন অব অফেন্ডার্স অর্ডিন্যান্স, ১৯৬০" (Probation of Offenders Ordinance, 1960) নামে একটি আইন আছে এবং বর্তমান মামলার প্রেক্ষাপটে সেই আইনের ৫ ধারা প্রয়োগযোগ্য। যখনই বিজ্ঞ বিচারক ৩২৫ ধারার অপরাধে আসামিকে দোষী সাব্যস্ত করলেন তখনই উনার উচিত ছিল "প্রবেশন অব অফেন্ডার্স অর্ডিন্যান্স, ১৯৬০"- এর ৫ ধারা বিবেচনা করা। মামলার বিষয়বস্তু থেকে প্রতীয়মান হয় যে, এই ঘটনা ঘটেছিল দুই প্রতিবেশীর মধ্যে তুচ্ছ একটা ঘটনার জের ধরে। এইসব ক্ষেত্রে আসামিকে ১(এক) বছরের জন্য জেলে না পাঠিয়ে প্রবেশনে রাখা সমীচীন ছিল। এমনকি, যেহেতু দন্ডবিধি ৩২৩ এবং ৩২৫ ধারা আপোষযোগ্য অপরাধ (Compoundable offence) এবং যেহেতু দুই পক্ষ হচ্ছে পরস্পর আত্মীয় /প্রতিবেশী কাজেই মামলাটি আপোষ মীমাংসা করা যুক্তিযুক্ত ছিল।

"প্রবেশন অফ অফেন্ডার্স অর্ডিন্যান্স, ১৯৬০" ধারা ৩(১)(ক) অনুসারে হাইকোর্ট বিভাগেরও এই আইনের বিধান প্রয়োগ করার এখতিয়ার আছে। নজিরস্বরূপ ৫৮ ডিএলআর,৩২২-এ প্রকাশিত আঃ খালেক বনাম হাজেরা বেগম এবং আরেকজন মামলার রায় দেখা যেতে পারে। (ক) হাইকোর্ট বিভাগ; (খ) দায়রা আদালত; (ঙ)১ম শ্রেণীর ম্যাজিস্ট্রেট; এবং (চ) বিশেষ ক্ষমতাপ্রাপ্ত অন্যান্য ম্যাজিস্ট্রেটগণ।

দরখাস্তকারী নূর মোহাম্মদ-এর দোষী সাব্যস্তের আদেশ (conviction) এবং জরিমানা বহাল থাকবে তবে তিনি যতদিন কারাদণ্ড ভোগ করেছেন ততদিনই তার দন্ড হিসেবে গণ্য হবে।... নুর মোহাম্মদ বনাম সরকার, (Criminal), 2021(1) [10 LM (AD) 496]

Section 326

The main ingredient for sustaining conviction under Section-326 of the Penal Code is that there must be grievous hurt—

From the evidence of P.W. 8 and! P.W. 1 we are of the view that though the doctor deposed that the injuries he found were grievous in nature but those injuries are not grievous as contemplated under] Section 320 of the Penal code, In view of the nature of the evidence we hold that the; prosecution failed to prove that P.W. m sustained grievous hurt. But the fact remains; that the prosecution witnesses consistently and uniformly proved that these appellants caused hurt on PW1 by using weapons of offence and from the evidence on record we are of the view that these appellants have committed the offence punishable under Section 324 and not under Section 326 of the Penal Code. Aminul Islam @ Ranga & Ors. Vs. The State 8 BLT (AD)-129

Section 326 r/w sections 149 and 304

We are of the view that conviction of the petitioner under section 326 read with sections 149 and 304 of the Penal Code was not justified. The evidence on record reveals that the leave-petitioner, in fact, committed the offence under section 323 of the Penal Code. Therefore, the leave-petitioner is acquitted of the charge under sections 149/326 and 324 of the Penal Code but he, is, however, convicted under section 323 of the Penal Code and his sentence is reduced to the period he has already undergone. .....Jaher Miah (Md.) =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 366]

Section 326 read with section 320

Ingredients of offence u/s 326—

A hurt must conform to the ingredeints of section 320 of the Penal Code in order to be grievous and punishable under section 326. When the evidence on record are not clear and specific as to the inflicting of the injury by the particular accused and the Medical Officer while examining the hurt did not mention as to the ingredient of the eighth clause of section 320, the sentence under section 326 of the Penal Code does not appear to be perfectly justified and accordingly the sentence is reduced under the circumstances from one under section 326 to that under section 324 of the Penal Code with the sentence already served. Abdul Jalil Vs. The Slate— 4, MLR (1999) (AD) 262.

Section 326 and 353

Conviction-Sustainability—

The conviction and sentence passed under sections 326 and 353 of the Penal Code on the basis of consistent ocular evidence of the occurrence taking place in broad day light cannot be interfered with by any other liberal construction not warranted by the facts and evidence on record. Nura Miajee Vs. The State— 2, MLR (1997) (AD) 86.

Sections 326/34 or 149-Appellant Nos. 2-6 cannot be convicted under section 326 of the Penal Code without framing any charge under section 34 or 149 of the Penal Code and without leading any evidence as to their acting in concert or in pursuance of any common object. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 326

Appellate Division held that without any medical report the conviction under section 326 of the Penal Code is not maintainable. The State Vs. Abul Basher Tipu 3 ALR(2014)(1)(AD) 211

Section 342-An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence.

Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman vs State 51 DLR (AD) 33.

Sections 361, 363 & 366A-Age of majority and guardianship-Decision as to custody of a minor pending criminal proceedings-Neither personal law nor Majority Act is relevant for the purpose. The statute that holds good is the Penal Code. If the allegations are that of kidnapping of a minor girl, then for the purpose of her custody, the Court has to proceed on the basis that she is a minor if she is under 16. If however the allega- tions are that of procuration of a minor girl, the Court has to proceed on the basis that a girl is a minor who is under 18. Wahed Ali Dewan vs State 46 DLR (AD) 10.

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

Section 362

Abduction- there is no age limit given of a person who may be subject of abduction- the question of age was immaterial having regard to the offence abduction. Md. Jabed Ali Vs. The State & Ors 6 BLT (AD)-248

Sections 363 and 361

Custody of a victim girl, if the allegations are that of kidnapping of a minor girl out of the keeping of the lawful guardian.

Kidnapping of a minor girl out of the keeping of the lawful guardian is an offence under Section 363 of the Penal Code. For the purpose of custody of the victim girl as may be prayed for in the criminal Court in a pending proceeding, the Court has to proceed on the basis that the female is a minor under sixteen years of age as laid down in section 361 of the Penal Code. For proving the offence of kidnapping the minority of the victim will have to be established at the trial. Md. Wahed Ali Dewan Vs. The State and another, 14BLD(AD)32

Sections 363/376/302/201/34

Nari-O-Shishu Nirjatan Daman Ain, 2000

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 364/302/380/34

Prosecution has not been able to prove the case of abduction and murder of a victim– Appellate Division does not find from the evidence that any attempt was made by the brothers of the victim to find her in the following morning. According to the evidence of witnesses the information regarding discovery of the death body became available at 3:00 p.m. on 24.06.2000. None of the witnesses stated that any search was made throughout the morning up to 3:00 p.m. on 24.06.2000. That is against human conduct and led us to doubt the prosecution story of abduction. This Division finds that the prosecution has not been able to prove the case of abduction and murder of a victim. On the contrary the defence allegation that the victim ran away from home with her lover appears to be more probable. The appeal is allowed. The judgement and order of conviction and sentence of Khalilur Rahman is hereby set side. The convict appellant Khalilur Rahman is acquitted of the charge levelled against him, and he be released from custody forthwith, if not wanted in connection with any other case. ...KhalilurRahman =VS= The State, (Criminal), 2021(2) [11 LM (AD) 199]

Sections 364, 302 and 34-The Appellate Division observed that in the instant case, from the materials on record, it appears that other than the elder brother PW-2 and PW-3 wife of PW-2, none were produced at whose presence the victim made such dying dec- laration in the hospital. Admittedly, PW-2 stated that when he went to the hospital, he found Doctor and other staffs of the hospital were giving him treatment and medical attendance. He also found his wife and one lady with her beside the victim. He said that when he asked his younger brother, the victim in a feeble voice, stated the names of the accused persons and the blows inflicted by them. But, unfortunately, none of the hospital staffs or the lady named Parul was produced to prove making of such dying declaration by the victim, who heard the statement made by the victim. Moreover, PW-8, Doctor, who held the post mortem examination, in his cross examination clearly stated that the injuries found on the body of the victim, specifically the bullets which pierced through the right chest damaging the right lungs, lever and stomach and the injury cutting the scull of the victim at the back of the head along with other 11 bullet injuries, he was not suppose to be conscious and, such a patient requires intensive care treatment which was being given to him within 24 hours time till his death. He also opined in his deposition that such patient is at the verge of meeting death because of such injuries and profuse bleedings. From the above, it is clear that the victim was not in physical capability of making such declaration before 40 minutes of his death. It has already been stated that other than PW 2 who is the elder brother of the victim and PW 3 wife of PW 2 both being closely related to the victim and admittedly there were some enmity between the appellant's family and the victim's family the circumstances clearly show that the three requirements as mentioned above to determine the genuinity of the dying declaration is absent in this particular case. Thus the same cannot be the basis for conviction and, as such, the same cannot be the sole basis for conviction. Rashed -Vs. The State (Criminal) 16 ALR (AD) 52-58

Section 366A-In an interlocutory matter concerning custody of a girl, to rive a final judg- ment on her age is to decide an aspect of the merit of the case which is decisive of the case itself. After he decision has been given that the girl is quite major above 18 years, can there be any purpose for a trial which is still pending?

The learned Judges should have made it very clear that the finding made by them as to the age of the girl was only for the purpose of deciding the present custody of the victim girl and the trial Court was free to take its own decision upon considering the evidence to be led in the case. That having not been done, it must be said that the impugned judgment suffers from at least impropriety having usurped the powers of the trial Court in a pending criminal case. Khairunnessa vs Illy Begum 48 DLR (AD) 67.

Section 366A-Age of girl-Physical appea- rance-Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In some cases physical development may take place which may be regarded as precocious while in some other cases there may not be as much development as is natural with the passage of time.

Having regard to the fact that the available materials supported the claim of the mother that the girl was aged about 15/16 years except the statement of the girl herself, the High Court Division cannot be said to have acted judiciously in ignoring the materials and relying on the statement of the girl and their own observation of the girl. The mother has a reasonable grievance to make against the judgment which does not seem to have been passed upon a proper appreciation of the materials on record and far less keeping in view the welfare of the victim girl alleged to be a minor. Khairunnessa vs Illy 48 DLR (AD) 67.

Section 366A

Kidnapping- Bail of accused—may be granted when the victim girl in her statement stated that she went with the accused in her own accord—

When the trial is being delayed for no fault of the accused and when the victim girl in her statement recorded under section 164 Cr.Pc. stated that she went with the accused in her own accord the accused in such circumstances is entitled to the privilege of bail pending trial. Nurul Amin @ Bada Vs. The State— 1, MLR (1996) (AD) 251.

Section 366A

Kidnapping- Determination of age of victim—Statements of parents—

While determining the age of victim girl more weight should be given to the statements of the parents than the emotional statement of the victim girl when her age hinges in the twilight of majority. Badiur Rahman Chowdhwy Vs, Nazrul Islam and another— 1. MLR (1996) (AD) 444.

Section 366A

Offence of kidnapping-Determination of the age and custody of a victim minor girl—

In deciding the age and present custody of the victim girl in a pending criminal case the High Court Division cannot surpass the powers of the trial court. Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In particular case having regard to the facts and circumstances all the available materials on record must be taken into consideration rather than solely relying on the statement of the victim girl and her physical appearance. Khairunnessa Vs. Illy Begum and another— 1, MLR (1996) (AD) 148.

Section 375-Rape-The victim, being a minor, was not handed over to her parents who are her best well-wisher PW 1 being convener of Mohila Parishad under took the matter for prosecution beyond the knowledge of her parent. As such High Court Division disbelieved the entire story of commission of rape on the person of a minor girl which deserves no interference. (PER MD ANWARUL HAQUE J, MAJORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218

Section 375-Rape-A case of rape is not proved simply because the wearing apparel of the raped victim was not produced to the investigating officer and no expert examination took place, Sexual intercourse with a girl below the age of 14 years is ipso facto rape. (PER MD IMMAN ALI J, MINORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218

Section 375-Rape-A 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (PER MD IMMAN ALI J, MINORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218

Section 375-Rape-Section 2(গ) or the Ain, has explained 'rape', "ধর্ষণ শব্দটি” Penal Code (Act XLV of 1860) এর section 375 এ উল্লিখিত "rape" শব্দটির ন্যায় একই অর্থ বহন করিবে।" According to section 375 of Penal Code mere penetration is sufficient to constitute rape. Syed Sajjad Mainuddin Hasan @ Hasan vs State, 70 DLR (AD) 70

Section 375

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

Section 6(2) r/w

Penal Code, 1860

Section 375

Capital punishment–– Under section 6(2) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 is capital punishment only. But in a recent judgment, this Division held that in appropriate cases, the sentence of death may be commuted to punishment for life. But on the facts and circumstances of the case, the condemned-appellant does not deserve any sympathy whatsoever. In this connection reliance may be made on the case of Laxman Naik vs State of Orissa (1994) 3 SCC 381 wherein the Supreme Court of India confirmed the death sentence of a perpetrator for the offence of rape followed by murder of a 7 year old girl by her own uncle. The Court opined that the accused seems to have acted in a beastly manner. After satisfying his lust, he thought that the victim might expose him for the commission of offence on her to her family members and others, therefore, the accused with a view to screening the evidence of the crime, put an end to the life of that innocent girl. The Court noticed how diabolically the accused had conceived his plan and brutally executed it in such a calculated cold blooded and brutal murder of a very tender age girl after committing rape on her which, according to the Court, undoubtedly falls in the rarest of rare case attracting none other than capital punishment. ––The sentence of death imposed upon the condemned-appellant Md Sukur Ali passed by the Tribunal and confirmed by the High Court Division is maintained. .....Sukur Ali (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD) 289]

Section 376

Leave was granted for reconsideration of the evidence on record as a great doubt as to the truth of the prosecution case arises in the facts and circumstances of the case and consequently to examine if the learned judges of the High Court Division erred in law in not granting benefit of doubt to the accused appellants in the case. Md. Saidur Rahman Neoton and Ors.Vs. The State 1 BLT (AD)-20

Section 376

Jumping the bail — Prosecution Failed to Prove the charge — in the instant case, the High Division maintained the order of conviction and sentence of this appellant on the ground that earlier his bail was cancelled by the High Court Division and directed him to surrender to his bail bond but he failed to comply with the same and as such became a fugitive from justice. Held: for jumping the bail the appellant should not have been convicted for the main offence under section 376 which was not proved against him and other accused and all other co-accused were acquitted. Moreover, the appellant since surrender has already undergone imprisonment which is enough punishment for jumping the bail. Mizanur Rahman Vs. The State 11 BLT (AD)-26

Section 376

read with

Cruelty To Woman (Determent Punishment) Ordinance, 1983 (LX of 1983)

Section—4(b)(c)

The High Court Diyision on consideration of evidence of PWs rightly found that accused-petitioner Bazlu raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim girl Mahinur Begum and as such the finding of conviction and sentence of the High Court Division are based on proper appreciation of evidence on record. Bazlu Talukder Vs The State, 20 BLD (AD)227

Section 376

The appellant was the prime kidnapper and he forcibly had sexual intercourse with Mahinur and that the other convicts are entitled to get the benefit of doubt as has been rightly found by the High Court Division as such finding is based on proper appreciation of evidence on record and hence no interference is warranted. Bazlu Talukder vs State 5 BLC (AD) 159.

Section 376

Offence of rape is not compoundable—

The offence under section 376 is not compoundable. The conviction and sentence based on evidence and proof cannot be Interfered with. Shorbesh Ali & another Vs. Mrs. Jarina Begum & another— 2, MLR(1997) (AD) 127.

Section 376

Offence of rape visa-vis the offence under section 342 of the Penal Code— jurisdiction of the Court in appeal to alter the sentence—

The offence of rape punishable under Section 376 of the Penal Code in view of its inclusion in the Schedule of the Special Powers Act, 1974 was triable by Special Tribunal. On the other hand the offence under section 342 of the Penal Code is triable by the ordinary criminal court. It is patently out of the jurisdiction of the High Court Division to alter the conviction and sentence from section 376 to 342 of the Penal Code in an appeal preferred under section 30 of the Special Powers Act, 1974. Abdur Rahman and others Vs. the State— 4, MLR (1999) (AD)25.

Section 376

The process of sentencing is at the discretion of the Judge and is at the same time circumscribed by the law. It transpires that the respondent was in custody during the pendency of the appeal from 1993 to 2001 and, therefore, served a term of imprisonment of about 8 years. The High Court Division took the view that the period served by the respondent was sufficient to meet the ends of justice. The appellate Division does not find any illegality in the impugned judgment and, therefore, finds no reason to interfere with the impugned judgment and order. The State -Vs.-Md. Shamsur Rahman Sikder @ Kalu & others. 4 ALR (AD) 2014 (2) 42

Section 378-There cannot be any theft in the eye of law unless the moveable property is moved for being taken out of the possession. Qari Habibullah Belali vs Capt. Anwarul Azim 40 DLR 295.

Sections 378 and 403-In an offence of theft there must be removal of the property out of the possession of another with intention to take dishonestly-Appellant received Taka 9,000 in good faith from the Bank's counter instead of Tk. 1900 to which he was entitled and he had no knowledge that he was being overpaid-Th dishonesty became full blown when the cashier requested him to return the excess amount in the evening at the school but the appellant gave a denial of having received the excess amount at all-The facts of the case do not constitute an offence of theft but they constitute another offence, dishonest misappropriation under section 402 of the Penal Code.

The appellant may have received the money in good faith but the decision to appropriate the excess money to his own use makes it culpable- The conclusion is inescapable that he is inside the net. Kawsarul Alam vs State 42 DLR (AD) 23.

Section 379-Commission of theft is an individual act and there must be clear evidence in respect of each individual accused. For the same reason the court is also required to consider the evidence against all the accused separately and record its findings. Abdul Mannan vs State 44 DLR (AD) 60.

Section 385/109/34

Obtain bail in the instant case filed against her under Sections 385/109 of the Penal Code........... (2) Government of Bangladesh vs. Sheikh Hasina and another (Md. Abdul Matin J) (Civil) 5ADC 541

Sections 385/386/323

Limitation Act, 1908

Article 5

Penal Code, 1860

Sections 385/386/323

Delay condoned–– From the materials on record it is clear that he was abroad from 2000 for which he could not appear before the Court. It also appears that after his return in 2015 when he came to know about the conviction and sentence he surrendered before the court on the earliest opportunity. This aspect should have been considered by the High Court Division in exercising its discretionary power of condonation of delay as refusal to condone the delay under such circumstances would prevent substantial justice. ––The delay of 4,543 days in filing of the criminal appeal before the High Court Division is condoned upon setting aside the impugned judgment and order and the High Court Division is directed to register the criminal appeal and dispose of the same on merit in accordance with law. .....Tipu =VS= State, (Criminal), 2023(1) [14 LM (AD) 308]

Section 394-Sentence is reduced to the period already undergone.

The Appellate Division held that it ap- pears from the evidence and materials on. record that the police and the local people caught hold the petitioners subsequent after the occurrence and assaulted them severely, consequently, left leg of petitioner Billal was broken. In the meantime, out of total sentence they have served out two years seven months. Considering the prevailing circumstances, particularly, the petitioners were assaulted mercilessly and that they snatched away case and kinds of TK 4500/- only and that in the mean time they have crossed the age of 40 years, Appellate Division is of the view that the ends of justice would be met if their sentence is reduced to the period already they have served out. Accordingly the petition is dis- missed and order of conviction is upheld subject the modification that the subs- to tantive sentence of the petitioners is re- duced to the period already undergone by them. Jahirul Haque and another -Vs.- The State (Criminal) 9 ALR (AD) 21-22

Section 394

Charge held established - Recognition by voice

read with

Code of Criminal Procedure, 1898

Section 154 - Delay in lodging FIR when explained is not fatal for the prosecution

In the instant case the convict-petitioner remained absconding after his release on bail and the trial was held in his absence in which he was convicted and sentenced. The delay of two days in lodging F.I.R was satisfactorily explained. The plea that the petitioner is not the actual accused which the apex court rejected as it is raised at such a belated stage. It is further held the charges were amply proved and the recognition of the accused by voice was established. The Appellate Division in the facts and circumstances dismissed the leave petition. Rana (Md.) Vs. The State, represented by the Deputy Commissioner, Joypurhat 15 MLR (2010) (AD) 173.

Section 395, 397, 109, 409, 414

In a suit of this kind the trial Court and the appellate Court are not required to sit in judgment over the findings of either the Enquiry Officer or the punishing authority as no Court has jurisdiction to act as an appellate authority sitting on appeal over the findings of a domestic tribunal. No Court has the jurisdiction to substitute its own finding for that of the Enquiry Officer or the punishing authority, as the case may be. The trial Court and the appellate Court cannot assume the role of a fresh factfinding body over which either the Enquiry Officer or the punishing authority has already made their respective exercises in a domestic proceeding. The Trading Corporatin of Bangladesh vs Kazi Abdul Hye (Mustafa Kamal J)(Civil) 2ADC206

Section 395

All the T.I 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 395

Identification of suspects in T.I. Parade-Belated T.I.P parade-Evidentiary value of-Preconditions of holding T.I.P.-

As human memory fades with the lapse of time, inordinate delay in holding T.I. parade reduces its evidentiary value. When the identifying witness had the chance of seeing the suspects in the court lock- up before the T.I. parade, the identification made in such T.I.P. cannot alone form the basis of conviction .T.I. parade in order to be reliable must be held immediately after occurrence or the arrest of the suspects. Abdul Hakim (Mirza) and others VS. The State— 5, MLR(2000) (AD) 27.

Section 396

Charge need to be proved by legal evidence-

read with

Code of Criminal Procedure, 1898

Section 164- Confessional statement recorded by Magistrate after keeping the accused in police custody beyond the statutory period is held to be not voluntary.

In case of capital punishment the charge must be proved by legal evidence beyond reasonable doubt. Confessional statement of an accused recorded under section 164 Cr.P.C. keeping him in police custody beyond the specified period without explanation is held not voluntary and as such cannot be the basis of conviction without independent corroborative evidence. State Vs. Mofizuddin and others 11 MLR (2006) (AD) 76.

Section 396

Review– It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review– It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review. From the judgment of this Division, it appears that this Division, considering the evidence P.Ws. 21,22,24,25,26,27 and 30, drew conclusion that the arms, seized from the exclusive custody and control of the review petitioner, was used for killing of victim Khalaf which was a strong circumstance to connect the petitioner with the occurrence of killing the victim.

It is evident that the petitioner is a professional and hardened criminal and that the offence was committed by him in a brutal and diabolical manner on a foreign diplomat, for which, the respect and image of the country in the international arena has been affected seriously so it is the duty of the Court to award appropriate punishment. Accordingly, the Courts did so. No excuse or circumstance can mitigate such a treacherous and cowardly act. The review petition is dismissed. …Saiful Islam alias Mamun =VS= The State, (Criminal), 2020 (1) [8 LM (AD) 623]

Section 396

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 396

Conviction based on consistent evidence cannot be interfered with merely on ground of non-examination of Magistrate who held T.I. Parade-Conviction and sentence was awarded on proof of charge under section 396 of the Penal Code with consistent and reliable evidence on record. That the confessional statement was not relied upon and that the Magistrate who held T.I.Parade of the accused was not examined, does not constitute ground for acquittal of the convict-appellants. Abdul Hashem @ Bachchu Falar (Md) & others Vs. The Stale- 5, MLR (2000) (AD) 87.

Section 396-It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review.

The news item published few days after the occurrence in the daily 'Ittefaq' does not deserve any consideration since the same is not admissible in evidence in view of the fact that reporter or editor of the said news paper has not been examined to prove the authenticity and source of the said news item.

The Appellate Division held that the circumstantial evidence for connecting the review petitioner was recovery of fire arms from the custody of the petitioner, which was used for the purpose of killing the victim. Such circumstantial evidence was fully corroborated by the confessional statements of those two accused persons. From which, the conclusion of guilt of the petitioner has been established beyond any reasonable doubt. The facts revealed and circumstances disclosed are not only consistent with the guilt of the accused petitioner but those exclude every reasonable hypothesis consistent with his innocence. Considering the facts, circumstances and evidence available, the Appellate Division drew conclusion that this review petitioner shot the victim by the seized fire arms with intention to kill him at the time of commission of dacoity in the place of occurrence. The Appellate Division does not find any error of law apparent face of the record in drawing such conclusion in view of the evidence adduced by the prosecution. The news item pub- lished few days after the occurrence in the daily 'Ittefaq' does not deserve any consideration since the same is not admissible in evidence in view of the fact that reporter or editor of the said news paper has not been examined to prove the authenticity and source of the said news. item. Moreso, said news item does not prove the innocence of the petitioner. The petitioner had committed cold blooded gruesome murder of the victim Khalaf which shocked the conscience of the Bangladeshi people at large. It is evident that the petitioner is a professional and har- dened criminal and that the offence was committed by him in a brutal and diabolical manner on a foreign diplomat, for which, the respect and image of the country in the international arena has been affected seriously so it is the duty of the Court to award appropriate punishment. Accordingly, the Courts did so. No excuse or circumstance can mitigate such a treacherous and cowardly act. The Appellate Division does not find any substance in the petition. Thus, the review petition is dismissed. Saiful Islam alias Mamun -Vs. The State (Criminal) 16 ALR (AD) 181-183

Section 401, 431/467

Criminal Law (Amendment) Act, 1958

Section 6(5)

Penal Code, 1860

Section 401, 431/467

Prevention of Corruption Act, II of 1947

Section 5(2)

The trial has been held without sanction from the proper authority and as such the trial held by the Special Judge is without jurisdiction–– “From the lower court record it does not appear that the learned Special Judge took notice of such a patent fact and that any sanction letter was ever produced before the learned Judge and that he ever wrote under section 6(5) of the Criminal Law (Amendment) Act to the proper authority for the sanction. It is now well settled that sanction confers jurisdiction upon the Special Judge for taking cognizance of an offence against a government servant. Mere statement in the charge-sheet that some sort of sanction was received without producing the sanction order before the court and putting in the same to the evidence in order to show that the sanction order was valid and proper is not enough. In my view the trial has been held without sanction from the proper authority and as such the trial held by the Special Judge is without jurisdiction and the impugned order of conviction and sentence is illegal.” Appellate Division finds no reason to interfere with the judgment and order passed by the High Court Division and accordingly the appeal is dismissed. .....The State =VS= Md. Moslemuddin, (Criminal), 2023(1) [14 LM (AD) 257]

Section 405-When section 405 defines 'criminal breach of trust' speaks of a person being in any manner entrusted with the property, it does not contemplate the creation of a trust with all the techni- calities of the law of trusts. It contemplates the creation of a relationship whereby the owner of the property makes it over to another person to be retained by him until certain contingency arises or to be disposed by him on the happening of a certain event. State vs Md Abul Hossain, 64 DLR (AD) 39

Sections 405/406-In cases of criminal breach of trust, the failure to account for the property or money proved to have been entrusted with the accused or giving false account as its use is generally considered to be a strong circumstance against the accused. State vs Md Abul Hossain, 64 DLR (AD) 39

Section 406

The two trucks belonging to the plaintiffs were seized by the police in connection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pending and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count. Abdul Quddus vs Latif Baxvany Jute Mills Ltd. (M. M. Ruhul Amin J)(Civil) 2ADC 938

Section 406

The two trucks belonging to the plaintiffs were seized by the police in connection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pending and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count......... (11). Abdul Quddus vs Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J) (Civil) 2ADC 938

Section 406/420

It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant. …Sree Gopal Chandra Barman Vs. Md. Nasirul Hoque, (Criminal), 1 SCOB[2015] AD 35

Section 406

In order to sustain conviction under section 406 of the Penal Code there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged and in the instant case the petitioner though took the loan to set up the machine from the Krishi Bank out never repaid the amount remaining the dues to be unadjusted, rather disposed of the mortgaged machine without the permission of the Bank. Md. Kalimullah Topadar Vs. The State & Anr 11 BLT (AD)-128

Sections 406 and 420

The question of offence of cheating, whether arises when there is nothing to show that any entrustment of property was made to the accused?

The question of offence of the cheating does not arise (in the instant case) as there is nothing to show that the accused has dishonestly induced the complainant to sell the fish to him on credit. There is nothing to show that any entrustment of the fish was made to the accused for sale of fish on credit according to the direction of the person making the entrustment Md. Islam Ali Mia alias Md.Islam Vs. Ama! Chandra Mondal and another, 13BLD (AD)28

Sections 406/407 and 408

Value of statement of who was not examined in the case as a witness in accordance with law–

The Appellate Division observed that the High Court Division set aside concurrent findings of fact by placing reliance on the statement of a witnesses, who was not examined in the case as a witness in accordance with law, in disregard and derogation of the evidence on record and as a result, there has been a grave failure of justice. .....Md. Abdul Awal =VS= Md. Abdul Barek & another, (Criminal), 2016-[1 LM (AD) 492]

Section 406/420:

It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant. .....Sree Gopal Chandra Barman =VS= Md. Nasirul Hoque, (Criminal), 2016-[1 LM (AD) 495]

Sections 406 & 420

Unless the auditor under section 53 of the Wakf Ordinance held that a Mutwalli was guilty of breach of trust it would not make out a case of breach of trust on the vague allegations as to his failure to disburse the dues due to the beneficiaries. Nazrul Islam Mollick vs Khowaj Ali Biswas and another 4 BLC (AD) 239.

Sections 406/420

From a plain reading of the petition of complaint it is clear that the initial intention of cheating and the elements of criminal breach of trust have, very well, been alleged therein and, as such, on the face of these allegations it is difficult to say that no prima facie case has been alleged to have been committed by the petitioners under sections 406/420 of the Penal Code. The impugned judgment and order of the High Court Division do not suffer from any illegality. Seeking leave to appeal without appearing in the High Court Division is disapproved. Habibur Rahman (Md) and another vs State, through the Deputy Commissione, Narayanganj and another 1BLC (AD) 146.

Section 406 and 420

Immigration Ordinance, 1982— Section 23 and 26— Joint trial— Not permissible—

Joint trial of offences under section 406 and 420 of the Penal Code and of section 23 of Immigration Ordinance 1982 by the Special Court is not permissible as the offence under section 23 of the Immigration Ordinance, 1982 is exclusively triable by Special Court while the offence under section 406 and 420 of the Penal Code are triable by the Magistrate. Where ingredients of the offences under section 406 and 420 of the Penal Code and under section 23 of the Immigration Ordinance, are contained in the allegation, prosecution in both the courts for the respective offences are competent. Mosammat Noor Jahan Begum @ Anchuri & another Vs. The State— 2, MLR(1997) (AD) 34.

Section 406

Money taken on hand note is a loan—

When money is taken as loan against hand-note it becomes the property of the loanee and the nonpayment thereof does not constitute offence punishable under section 406. Md. Reazuddin Ahmed Vs. The Stale and another— 2, MLR(1997) (AD) 37.

Sections 406/407 and 408-Value of statement of who was not examined in the case as a witness in accordance with law.

The Appellate Division observed that the High Court Division set aside concurrent findings of fact by placing reliance on the statement of a witnesses, who was not ex- amined in the case as a witness in accor- dance with law, in disregard and derogation of the evidence on record and as a result, there has been a grave failure of justice. Md. Abdul Awal. Vs. Md. Abdul Barek and another. (Criminal) 7 ALR (AD) 239

Section 406-Paddy purchased by PW 1 was handed over to the appellant-Appellant refused to deliver the sale proceeds and denied the entire transaction-The case is one of entrustment fully proved by the prosecution-No interference. Md Musa vs Kabir Ahmed 41 DLR (AD) 151.

Sections 406/420-Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial deception has also been alleged. The High Court Division rightly quashed the proceeding. Rafique vs Syed Morshed Hossain 50 DLR (AD) 163.

Sections 406 & 420-Quashing of pro- ceedings for alleged breach of trust and cheating: Money claims not the outcome of a particular transaction but arose after year-end accounting following regular business between the parties. If on settlement of accounts at the end of a period some money falls due to one party from the other party and the other party fails to pay the dues, such liability cannot be termed criminal liability. Allegation that dues were allowed to accrue dishonestly, neither attract an offence under section 420 nor under section 406 or under any other section. The whole allegation in complaint petition, even if true, cannot form basis of any criminal proceeding. The proceedings are quashed. Syed Ali Mir vs Syed Omar Ali 42 DLR (AD) 240.

Sections 406 and 420-Relationship bet- ween the complainant and the accused being than of Directors of a private Limited Company, prin- ciples of partnership shall apply. As such spending of money by petitioner No.1 as Mana-ging Director cannot be termed misappropriation or breach of trust of the fund of the company. Remedy of the complainant, if any, is by way of suit for accounts. Anarul Islam vs State 58 DLR (AD) 76.

Sections 406 & 420-Question of offence of breach of trust and cheating-Business tran- sactions were going on between the complainant and the accused for a long time relating to supply of fish and the latter made payments in parts. A balance amount claimed by the complainant was not agreed on and the accused refused to pay it. This refusal to pay the balance does not constitute any criminal offence under sections 406/420 Penal Code. Islam Ali Mia vs Amal Chandra Mondol 45 DLR (AD) 27.

Sections 406/420-The High Court Division found that the complaint petition discloses an offence of inducement by the accused to part with money. By such inducement the complainant paid money to the accused on the undertaking by the latter to repay the same as and when complainant demanded it. But the accused misappropriated the money by issuing cheques which were dis- honoured. This establishes prima facie case of deception. Delwar Hossain vs Rajiur Rahman Chowdhury 55 DLR (AD) 58.

Section 406 and 420-Whether the counter-foils be legal evidence-Counterfoils cannot be legal evidence unless the original cheques are proved to be encashed by the accused petitioner. Amin Mia (Md) vs Nazir Ahmed 63 DLR (AD) 136.

Sections 406/420

The Appellate Division observed that it appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Code had not been established against the appellant. [ব্যাংক এ্যাকাউন্টের মাধ্যমে লেনদেন, তাহা প্রতারনা মর্মে গণ্য হইবে না। Sree Gopal Chandra Barman -Vs.- Md. Nasirul Hoque 6 ALR (AD) 2015 (2)93

Sections 406 and 420 read with Negotiable Instrument Act [XXVI of 1881]

Section 138 The allegations of bouncing of cheque simpliciter does not ipso facto constitute any offence as defined under section 115 dt of the Penal Code punishable under section 420 of the Penal Code and as such, framing of charge against the appellant under section 420 of the Penal Code suffered from serious illegality. M. A. Sukkur -Vs. Md. Zahirul Haque and another 5 ALR (AD)2015(1) 27

Sections 406 and 420

The allegations made in the petition of complaint clearly constitute offences under sections 406 and 420 of the Penal Code. Whether these allegations are true or not-that is a matter to be adjudicated at the trial of the case. Md. Abu Syed Chand -Vs.-The State represented by the Deputy Commissioner, Rajshahi and another. 4 ALR (AD) 2014 (2) 203

Sections 406/409/420/460 and 469 and

The Appellate Division on scrutiny of the materials on record took the view that the allegations imputed by the complainant against the appellant that they had been misappropriated the awarded amount are not at all tenable and as such Appellate Division exercised the power under Article 104 of the constitutions for doing complete justice from unnecessary for the avowed purpose of protecting the appellants from the unnecessary hassle of criminal proceeding as there was no material to prosecute them. Mahboobur Rahman and others Vs.-Md. Kayser Parvej (Milon) and others. 4 ALR (AD) 2014 (2) 149

Section 409-Allegation was that the appellant dishonestly misappropriated 10 bags of powder milk, which was meant for distribution among the poor students-Defence version was that he did not submit any application seeking allotment of relief powder milk nor did he take delivery of them-Question arose as to whether the legality of the conviction on the ground of contradictory and insufficient evidence which necessarily calls for the scrutiny of the evidence is maintainable.

Held We have given our anxious consi- deration to the facts of the case and discrepancy in evidence as to 8 bags or 10 bags and our con- clusion is this conviction cannot be sustained. Moslemuddin Talukder vs State 42 DLR (AD) 103.

Section 409-Appellant deposited the amount for which he was charged for misappro- priation Co-accused having been already released on bail the bail of the appellant should not have been refused-Appeal allowed and appellant allowed to remain on ad-interim bail granted by the Appellate Division. Md Serajul Hoque vs State 42 DLR (AD) 52.

Section 409-Fugitive has no locus standi to file any petition-The petitioner is a fugitive from justice when he moved the petition and obtained the Rule Nisi. This Court repeatedly argued that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court. When a person wants to seek remedy from a Court of law, he is required to submit to the due process of the Court and unless he surrenders to the jurisdiction of the Court, the Court will not pass any order in his aid. Anti-Corruption Com- mission vs ATM Nazimullah Chowdhury 62 DLR (AD) 225.

Section 409-The prosecution has been able to prove that such wrongful loss has been caused by the convict petitioner by misusing his power and authority as the Ambassador and head of Mission. All the allegations have been proved by all the Pws who corroborated each other in every detail. None of the PWs were cross examined because of the abscondence of the convict petitioner. Be that as it may, all the allegations brought against the convict petitioner for which charge were framed having been proved by the PWs and corroborated by each other, the High Court Division found him guilty of all the charges, except the allegation of renting a new residence for the Ambassador. Finding and decision of the High Court Division in convicting the convict upon modifying and reducing the sentence and fine imposed by the trial Court calls for no interference. ATM Nazimullah Chowdhury vs State represented by the Deputy Commissioner, 69 DLR (AD) 344

Section 409-Admittedly the accused petitioner was the then Prime Minister of the People's Republic of Bangladesh who accorded approval as the head of the final authority to issue work-order in favour of CMC consortium, the third lowest among the three bidders, inspite of recommenda- tion of the Chairman, Petro Bangla for re- tender which according to the respondents has caused huge loss and damage to the Public Exchequer as the same constitute criminal breach of trust. Begum Khaleda Zia vs State, 70 DLR (AD) 99

Sections 409/109-Whether the accused have committed any offence within the meaning of section 409/109 of the Penal Code read with section 5(2) of Act II of 1947 or not are to be decided after recording evidence by the trial Court. Anti- Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242

Section 409-The Appellate Division observed that High Court Division found that the accused-appellant, being enlarged on bail on 26.01.2000, which was subse- quently extended on 30.04.2001 for one year, absconded and became fugitive from justice and on making such findings the High Court Division without going into merit of the appeal dismissed the appeal on the ground that the accused appellant was fugitive. A. K. Azad -Vs. The State. (Criminal) 11 ALR (AD) 12-13

Sections 409/420467/468/471 read with Prevention of Corruption Act, 1947

Section 5(2) read with Code of Criminal Procedure, 1898

Sections 233 and 234 - Section 233 clearly provides that every distinct of- fence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated.

The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in re- spect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is specific allegation of misap- propriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropri- ation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this sec- tion is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. Bashir Ahmed Vs. The State, represented by the Deputy Commissioner, Magura (Criminal) 9 ALR (AD) 228-229

Section 409, 477A, 109

The Janata Bank Employees Service Regulation, 1995 Rule 28 (1), 49.The Fundamental Rule 29. Reducing the petitioner from the post of Senior Officer to the post of Principal Officer without arrear salary and other attending benefits was illegal and directed the Bank to reinstate the petitioner in his original post with arrear salaries etc. Janata Bank, ors. vs Mr. Khalilur Rahman (Amirul Kabir Chowdhury J) (Civil) 3ADC 81

Section 409

The order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dismissal of the respondent No.2 was not legal. Pubali Bank Ltd. vs Chairman, First Labour Court, (Md. Ruhul Amin J) (Civil) 2 ADC 12

Sections 409/109

The Criminal Law Amendment Act, 1958

Section 10(3) r/w

The Prevention of Corruption Act II 1947

Section 5(2) of Act II 1947 r/w

The Penal Code

Sections 409/109

Transfer the Case under Sec. 5(2) of the Act II 1947 read with Sec. 409/109 of the Penal Code– The petitioner is entitled to get an order of transfer if she shows circumstances from which it can be inferred that there is apprehension that she would not get justice from the Judge concerned and that the same is reasonable in the circumstances alleged but a mere allegation of apprehension is not enough; the Court will consider whether the apprehension is reasonable, genuine and justifiable.

Taking into consideration the entire facts and circumstances of the case and the materials on record, we are of the view that the petitioner has failed to make out a case that she has reasonable apprehension of not availing justice from the presiding Judge of the Special Court No. 5, Dhaka. The petition is dismissed. ...Begum Khaleda Zia =VS= State, [6 LM (AD) 91]

Section 409

Accused appellant was in charge of several stores- from the examination of accused- appellant under section 242 of the Code of Criminal Procedure it transpires that the allegation was of a general nature, namely, misappropriation of various store properties, without specifying from which store the misappropriation took place. But in the examination under section 342 of the Code of Criminal Procedure it is generally stated that while he was store keeper of Chalna Port misappropriation took place in the said store without specifying which one There is therefore lack of uniform evidence that all the five stores then existing at Khalishpur were under the charge of the accused- appellant. P. W. 2 Shafiqur Rahman clearly stated that the accused-appellant was in charge of general store (Shed No. 1) and Cement Store. There is no reliable evidence on record that the accused-appellant was also in charge of Shed No. 2, the mechanical store from where that alleged misappropriation took place-Conviction and sentence passed on the accused- appellant is set aside. Sheikh Abdur Rouf Vs. The State 7 BLT (AD)-249

Section 409 read with 109

Although High Court Division based its decision in respect of the appellant while dismissing his appeal on the evidence of P.Ws 1,2,3,5 and 6 but from the discussions of the evidence of the said witnesses, as made above, it is seen in fact there is nothing in their evidence to implicate the appellant in the incident alleged by the prosecution and thereupon appellant and others were tried for being involved, as claimed by the prosecution, in the incident i.e. removing or stealing of wheat, misappropriation of some quantity of wheat from the total quantity of wheat lifting for distribution among the VGF card holders and stored in Dahia Government Primary School. Md. Fazar Ali Vs. The State 12 BLT (AD)-167

Section 409

read with Prevention of Corruption Act, 1947 Section-5(2)

The appellant was given charge of the godoan of the jute seeds who received the same from one Habibur Rahman on 04.04.1983—Held : There may be suspicion against this appellant but suspicion however strong cannot be a ground for holding guilt of an accused. Here is a case where the prosecution half heartedly proceeded with the case. The appellate court failed to notice the gross defects in the case as advanced by the prosecution who have not produced and examined even the cited witnesses most of whom were from department itself. No explanation has also been given for this non-examination—the prosecution failed to prove the charge against this appellant beyond all reasonable doubt Md. Mazibur Rahman Vs. The State 8 BLT (AD)-190

Section 409

In section 409 of the Penal Code there is no provision for confiscation of property. Yet the Appellate Division refused to consider the prayer of the petitioner at this stage as this point was not specifically raised before the High Court Division. Bibhuti Bushan Talukder Vs The State, 17BLD(AD) 168

Section 409

The Penal Code, 1860

Section 409 read with

The prevention of Corruption Act, 1947

Section 5 (2)

The provisions of Section 222(2) read with Section 234 (1) require that if there are more than one offences committed over a period of more than 12 months then the offences may not be charged in one charge, whereas Section 6 (1B) provides that any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. Clearly, therefore, the provision in the Criminal Law Amendment Act is not consistent with the provision of the Code of Criminal Procedure.

Since Section 409 of the Penal Code read with Section 5(2) of Prevention of Corruption Act come within the schedule of Criminal Law Amendment Act, the offences are liable to be tried as per the provisions of the Criminal Law Amendment Act, which being special law will prevail over the general law, i.e. the Code of Criminal Procedure. ...The State =VS= Ibrahim Ali(Md.), (Criminal), 2021(1) [10 LM (AD) 385]

Section 409

The Penal Code, 1860

Section 409 r/w

The prevention of Corruption Act, 1947

Section 5 (2)

The accused has paid back all the money which he is alleged to have defalcated. That again cannot be a ground for acquittal, if it is found from evidence that he in fact committed the offence. Upon conviction, it is the discretion of the Court to award punishment in accordance with law and taking into consideration all the facts and circumstances of the case, including any mitigating circumstances. To that extent the period of sentence may be more or less depending on the facts of the case and the circumstances of the accused. ...The State =VS= Ibrahim Ali(Md.), (Criminal), 2021(1) [10 LM (AD) 385]

Sections 409/408/467/468/471/109/420

The Penal Code, 1860

Sections 409/408/467/468/471/109/420 r/w

The Prevention of Corruption Act, 1947

Section 5(2) ,

The Money Laundering Protirodh Ain, 2002

Section 13,

The Money Laundering Protirodh Ain, 2009

Section 4(2) and

The Money Laundering Protirodh Ain, 2012

Section 4(2)(3)

We are of the view that it cannot be said that there exists no prima facie case against the respondent No.1. Without exhausting the trial stage, no decision can be taken regarding the allegations brought against him in the charge sheet under Sections 409/408/467/468/ 471/109/420 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, Section 13 of the Money Laundering Protirodh Ain, 2002, Section 4(2) of the Money Laundering Protirodh Ain, 2009 and Section 4(2)(3) of the Money Laundering Protirodh Ain, 2012. The petition is disposed of. The judgment of the High Court Division is set aside. The order of the Mahanagar Senior Special Judge so far as it relates to the present respondent No.1 is also set aside. ...Durnity Daman Commission =VS= Ezbahul Bar Chowdhury, (Criminal), 2021(1) [10 LM (AD) 500]

Sections 409/420467/468/471

The Penal Code, 1860

Sections 409/420467/468/471 r/w

The Prevention of Corruption Act, 1947

Section 5(2) r/w

Code of Criminal Procedure, 1898

Sections 233 & 234

Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is specific allegation of misappropriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropriation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this section is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. .....Bashir Ahmed =VS= DC, Magura, (Criminal), 2017 (2)– [3 LM (AD) 541]

Sections 409/109

The Penal Code, 1860

Sections 409/109 r/w

The Prevention of Corruption Act, 1947

Section 5(2) r/w

The Emergency Powers Rules, 2007

Rule 15

Re-calling the P.Ws for cross examination–

In our view this observation of the learned Judges of the High Court Division is uncalled for and not contemplated by settled principles of criminal justice. Any individual accused person is liable to answer the charges brought against him and the prosecution is bound to prove the charges levelled against each individual accused beyond reasonable doubt, and hence, no individual can be compelled nor can it be suggested to any accused that he should adopt the cross-examination made on behalf of another accused. Accordingly, the following words-“Re-calling our earlier observation, however, we think that justice will meet to its end if the accused-petitioner exercises option, if thinks so, to adopt the cross-examination on behalf of the other accused-petitioners, specially of Tareq Rahman…………” are hereby expunged. However, for the reasons stated and in view of the discussion above we do not find any illegality in rejecting the accused petitioner’s application for re-calling the witnesses already examined and cross-examined. .....Begum Khaleda Zia =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 353]

Section 409

Sentence—It is a case of temporary defalcation which is a serious offence. The ends of justice will be met in the facts and circumstances of the case if the sentence of fine of each of the appellants is maintained and the substantive sentence is reduced to the period afready undergone as prayed for. Sekander Ali Howlader and others vs State 4 BLC (AD) 116.

Section 409

Both the trial Court as well as the High Court Division believed the evidence of PWs 4-5 that despite repeated reminders and despite the resolution taken by the Upazila Parishad, the petitioner did not submit the completion report of the project even during the trial and, as such, the case of the petitioner has been ended on appreciation on evidence for which it merits no consideration. GM Nawsher Ali vs State 2 BLC (AD) 183.

Sections 409/109

Considering the facts and circumstances of the case the Appellate Division is inclined to take a sympathetic view in the matter of sentence. The conviction of the appellant under sections 409/109 of the Penal Code is maintained but the sentence of RI for two years is reduced to the period already undergone. In lieu of the said reduced sentence the sentence of fine is enhanced to Taka 10,000.00, in default, the appellant shall suffer RI for six months. Jalaluddin Ahmed alias Jalaluddin Ahmed vs State 3 BLC(AD) 216.

Sections 409, 420 and 467

Although on the bainapatra in question a title suit is pending but cognizance of the offence was taken not only under section 467 of the Penal Code but also under sections 409 and 420 of the Penal Code and under section 5(2) of Act II of 1947 and as such the criminal case is not barred under section 195 (1)(c), CrPC. Sadat Ali Talukder (Md) @ Md Sadat Ali vs State & another 4 BLC (AD) 228

Section 411

Section 411 of the Penal Code provides for punishment of imprisonment or fine or both. In the instant case, the ends of justice will be sufficiently met if the sentence of imprisonment is reduced to the period already undergone and the fine remitted. Nizamuddin Bhuiyan vs State and another 1 BLC (AD) 222.

Section 411

Alteration of sentence—

Even at the revisional or appellate stage the conviction under section 411 of the Penal Code can be altered into one under section 379 in proper case where the charge appears to have been proved beyond doubt. Nizamuddin Bhuiya Vs. The State— 1, MLR (1996) (AD) 246.

Section 415-The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu 46 DLR (AD) 180.

Sections 415 and 420- The accused gave false assurance to the complainant that he would send him to America and arrange a job for him there if he paid TK.2 lacs to him and giving such false assurance he dishonestly induced the complainant to give TK.1,65,000.00 to him and subsequently he misappropriated the entire money and did not send the complainant to America. It appears that the act of the accused clearly constitutes the offence of cheat as defined in Section 415 of the Penal Code and, as such, is punishable under Section 420 of the Penal Code. Mokbul Hossain Howlader -Vs.- The State 5 ALR (AD)2015(1) 47

Section 415-Cheating

Section 415 defines cheating and under this provision a person is said to cheat another when he induces the person so deceived to deliver any property to him or to consent that he shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. On a plain reading of the complaint it does not disclose that the appellant had induced the complainant with dishonest intention to deliver any property to him or to do or omit to do anything which act or omission causes or likely to cause damage or harm to the complainant in body, mind, reputation or property. Prof. Dr. Motior Rahman-Vs.-The State and another 6 ALR (AD) 2015 (2)181

Sections 415/ 417 read with Notaries Public Act [XIX of 1994]

Chapter XVII' repealing 'Chapter XVII-A drawer can be prosecuted for cheating under section 417 of the Penal Code, the complainant must have to prove the initial deception.

The Appellate Division held that it would not suffice to show that the cheque was dishonoured for want of funds or even that the drawer knew that the funds in the account in which the cheque had been drawn were inadequate when he issued the cheque. It must be shown that he had cheated the payee within the meaning of section 415 of the Penal Code. The act of drawing a cheque in discharge of any debt or liability for payment of goods purchased implies at least three statements as to the state of affairs existing at the time when cheque is drawn. Firstly, that the drawer has an account with the bank in question; secondly, that he had authority to draw on it for the amount shown on the cheque; and thirdly, that the cheque as drawn is a valid one for the payment of that amount, or that in the ordinary course of events the cheque, on future presentation within the period of its validity will be honoured. It does not, however, implies any representation that the drawer has money in the bank which would be sufficient to honour the cheque for, he may either have authority to over- draw, or have an honest intention of paying in the necessary money before the cheque can be presented. The giving of a cheque in lieu of money due with the knowledge that the drawer had no funds with the bank does not amount to an offence of cheating in the absence of any evidence to show that the person to whom the cheque was issued parted with any property or that he did an- ything which he would not have done had he known that the cheque would be disho- noured, that is to say, the complainant must have to prove the initial deception. Md. Motaleb Hossain: -Vs.- Abdul Ha- que Limon and another: (Criminal) 11 ALR (AD) 105-110

Section 415

It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating. The intention is to be gathered from the surrounding circumstances. Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD) 78

Sections 420/409/109

The Penal Code, 1860

Sections 420/409/109 r/w

Prevention of Corruption Act, 1947

Section 5(2) r/w

Evidence Act, 1872

Section 115

The amount misappropriated may be small or large; it is the act of misappropriation sentence is reduce to the period already undergone– The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. The High Court brought a new jurisprudence in the criminal justice system that since the respondent deposited the entire amount, the case was barred by the principles of estoppel.

However, since the instant case has been initiated in 1999 and the High Court Division acquitted the respondent of the charge, Appellate Division is of the view that it would not be proper to send the respondent No.1 in jail after 22 years of the initiation of the instant proceeding, particularly, when the bank had adjusted the entire amount withdrawn. Considering the facts and circumstances, the judgment and order of the High Court Division is set-aside. The judgment and order of conviction of the respondent ordered by the trial Court is upheld. However, his sentence is reduced to the period already undergone. The respondent No.1 is directed to pay a fine of Taka 5,000, in default, he will suffer sentence of rigorous imprisonment for a period of 15 days. .....Anti-Corruption Commission =VS= Omar Faruk, (Criminal), 2022(1) [12 LM (AD) 517]

Section 420

Transfer of 15 acres of land to the complainant prior to another transfer to a subsequent transferee was not fraudulent or dishonest transaction within the mischief of cheating as defined under Section 415 of the Penal Code. Remedy of the complainant lies in a civil court, the dispute being of a civil nature. Mst. Nurjahan Bibi & Ors. Vs. The State 2 BLT (AD) 139

Section 420

In the case of the offence punishable for the offence of cheating there are two elements namely deception and dishonest inducement to do or omit to do something. In such a case the complainant or the informant would have to show not only that he was induced to do or omit to do a certain act but this inducement or omission has caused or was likely to cause him some harm or damage in body, mind, reputation or property and these are presumed to be the four cardinal assets] of humanity. For proving the offence under section 420 of the penal Code of prosecution must prove the deception of any person, fraudulently or dishonestly inducing such person to deliver any property to any] person or to consent that any person shall] retain any property and intentionally? inducing that person to do not omit to do anything which he would not do or omit if he were not so deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind,; reputation or property. From the evidence led before the trial court it appears that none of the witnesses deposed that this appellant induced P.W. 2 to execute kabala or to deliver the property to him. It appears that the prosecution has not led any evidence t prove the ingredients of the offence punishable under Section 420 of the Penal Code. The trial court as well as the High Court Division failed to appreciate this aspect of the matter and wrongly held appellant guilty of the offence under Section 420 of the Penal Code. Md. Mohasin Ali @ Mohsin Vs. The State 8 BLT (AD)-210

Sections 420/406/468

The Code of Criminal Procedure, 1898

Section 561A r/w

Penal Code [XLV of 1860]

Sections 420/406/468

A criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused– The Appellate Division observed that High Court Division came to finding that no charge was framed in this case as yet and that there was scope for the petitioners to agitate the grievances at the time of framing of charge under section 241A of the Code of Criminal Procedure and that if the contentions of the petitioners were found to be correct they might get relief. The High Court Division noted that a criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused. The High Court Division came to a finding that in the instant case, the aforesaid requirements are absent inasmuch as from a bare reading of the petition of complaint (Annexure-A) it appeared that the allegations made therein clearly constituted prima facie offence under sections 420/406/468 and 109 of the Penal Code. .....Md. Rafiqul Islam & others =VS= Md. Fakruddin & others, [1 LM (AD) 503]

Sections 420

The Penal Code, 1860

Sections 420

The Prevention of Corruption Act, 1947

Section 5(2)

Bail–– High Court Division didn’t exercise its discretion judiciously, rather perversely in releasing the convict on bail–– This Division’s standard practice is that it won’t interfere with the discretion exercised by the High Court Division. When discretion is exercised judiciously, not perversely, the same generally is not interfered with by the Apex Court, which is reluctant in interfering with the discretionary power of the High Court Division.–– 46 DLR (AD) 143 where it has been held that: "...Since the matter before us relates to bail only, we need not consider the merit of the appeal. In appeals involving short term of imprisonment the appellate Court should either dispose of the appeals or consider the release of the accused on bail. We do not think that in the instant case it was necessary for the learned Single Judge to write a long judgment for the purpose of disposal of the bail petition. The learned Single Judge should better dispose of the appeal very expeditiously failing which he may consider the question of bail if raised again...."–– In present case, our considered view as eloquent above is that the High Court Division didn’t exercise its discretion judiciously, rather perversely in releasing the respondent-convict on bail; hence, interference is called for. .....Durnity Daman Commission =VS= Md. Kutub Uddin Ahmmed, (Criminal), 2022(2) [13 LM (AD) 441]

Section 420

None of the witnesses has deposed that the appellant induced PW 2 to execute kabala or to deliver the property to him. The prosecution has not led any evidence to prove the ingredient of the offence punishable under section 420 of the Penal Code when the trial Court as well as the High Court Division failed to appreciate this aspect of the matter and wrongly held that the appellant was guilty of the offence under section 420 of the Penal Code. Mohasin Ali (Md) @ Mohsin vs State 5 BLC (AD) 167.

Section 420

The alleged transaction between the complainant and the appellant is clearly and admittedly a business transaction when the appellant had already paid a part of the money under the contract to the complainant, then the failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature and hence the complaint case is quashed. Dewan Obaidur Rahman vs State and another 4 BLC (AD) 167.

Sections 420 and 491

The Appellate Division held that the legal contract must take shape of service for the helpless master or employer, for example, a curator of a lunatic, or a doctor and a nurse employed in the hospital, who may render himself liable to the penalty under this section if he agreeing to look after the patient, voluntarily deserts the patient or omits to attend the patient. The complainant was not the one who is neither a lunatic nor a bodily incapable person or has been suffering from a disease for which he has entered into a contract with the appellant to take care of him and in that view of the matter, the offence alleged in the complaint does not attract section 491 of the Penal Code. The High Court Division has totally overlooked that aspect of the matter. The other ground on which the High Court Division has declined to interfere with the proceeding is non- exhaustion of alternative remedy. This is not a legal ground for, after taking cognizance of the offences, the accused person can move the High Court Division challenging the legality of the proceeding on any of the grounds available under section 561A of the Code of Criminal Procedure. In view of the above, Appellate Division found that the allegations made in the complaint do not attract offences punishable under sections 420/491 of the Penal Code and therefore,the initiation of the proceeding is a sheer abuse process of the court. Accordingly appeal is allowed. Prof. Dr. Motior Rahman-Vs.-The State and another 6 ALR (AD) 2015 (2)181

Sections 420,463 and 471 read with

Companies Act, 1991

Sections 36 and 397

The Appellate Division found that the allegation of forging the signature of the informant has been found prima facie true through examination by experts. There is no material before the Appellate Division to show that in that complaint case under the Companies Act the court took cognizance of offence of forgery also finding prima facie ingredients of that. In the circumstances the quashment of the case in question on the ground that in earlier complaint case under the Companies Act this allegation of forgery also can be looked into-cannot be sustained. The allegation made in the present case and the allegation made in the C.R. Case No. 3518 of 2007 being two separate distinct offences and being not same offence the observation of the High Court Division to the effect that the continuation of the case in question will plunge the accused petitioner to a situation of being tried more than once for the same offence is wrong. The Appellate Division does not find the further findings of the High Court Division to the effect that the allegations made in the FIR of the case in question do not attract the ingredients of sections 420,467 or 468 of the Penal Code wrong. The Appellate Division already observed above that the allegations made in the FIR of the present case in question attract section 463 and 471 of the Penal Code. The trial Court, on consideration of F.I.R and other materials on record, may frame/ alter/amend the charge properly. In the circumstances, this appeal be allowed on contest and the impugned judgment of the High Court Division be set aside. Ms. Ok Kyung Oh-Vs.-Mr. Bo-Sun Park and another 6 ALR (AD) 2015 (2)195

Section 420-Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act. State vs Md Iqbal Hossain 48 DLR (AD) 100.

Section 420 read with Negotiable Instruments Act, 1881

Section 138-Dishonour of a cheque may also be an offence not only under sec- tion 138 of the Negotiable Instruments Act but also under section 420 of the Penal Code. To constitute an offence punishable under section 138 an initial intention of cheating need not be established. It is sine qua non for an offence punishable under section 420 of Penal Code.

The Appellate Division held that disho- nour of a cheque may also be an offence not only under section 138 of the Negotia- ble Instruments Act but also under section 420 of the Penal Code. To constitute an of- fence punishable under section 138 an ini- tial intention of cheating need not be estab- lished. It is sine qua non for an offence pu- nishable under section 420 of Penal Code. The following are the essential ingredients of an offence under section 420 of the Penal Code:

(a) there should be fraudulent or dishon- est inducement of a person by de- ceiving him;

(b) the person so induced should be in- tentionally induced to deliver any property to any person or to consent that any person shall retain any prop- erty, or (c) the person so induced to do anything which he would not do or omit if he were not so deceived, and

(d) in cases covered by second part of clause (a), the act or omission should be one which caused or was likely to cause damage or harm to the person induced in body, mind or property.

For an offence of cheating there must be dishonest or fraudulent misrepresentation, that is to say, deception and inducement of the person deceived to part with the prop- erty must be established.

Md. Motaleb Hossain: Vs. Abdul Ha- que Limon and another: (Criminal) 11 ALR (AD) 105-110

Sections 420, 462A, 462B, 466, 467, 468, 469 and 471

There is no legal bar to holding trial of the case by the Special Judge because if there is abetment of offence by any person other than public servant the Special Judge has power to hold trial against him.

Though the offence is not related to or connected with offences punishable under the Prevention of Corruption Ain or other offences punishable under the Criminal Law Amendment Act, the FIR and police report disclose offences under the Penal Code. The case was initially started before the amendment and accordingly the ordinary criminal court is competent to hold the trial of the case.

There is no legal bar to holding the trial by the Special Judge since there are allegations that the accused respondents along with two others had withdrawn money without completing construction works of a three storey building.

The offences punishable under sections 420, 462A, 462B, 466, 467, 468, 469 and 471 of the Penal Code have been inserted in the schedule for the first time as offences triable by the Special Judge under the Durnity Daman Commission Ain without specifying as to whether those offences are connected with the offences mentioned under the Prevention of Corruption Act and offences punishable under sections 161, 162, 163, 164, 165, 166, 167, 168, 169, 217, 218, 409 and 477A of the Penal Code have been arrayed as offences triable by the Special Judge. By reason of this insertion of those offences, the investigations and trials of the proceedings under the said offence have been postponed and thereby administration of criminal justice is being hampered. The Appellate Division also finds no cogent ground for inclusion of those offences in the schedule to the Durnity Daman Commission Ain. Unless and untill those offences are related to or connected with the offences described in the schedule to the Durnity Damay Commission Ain, if the cases in respect of those offence are investigated by the police officers who have power to investigate those offences and the judicial Magistrates who have power to inquire try in respect of those offences should inquire and try those offence and the ordinary criminal courts are allowed to proceed with the trial of those offences, the ends of justice will be defeated. Al haj Md. Yunus -Vs.- The State and another (Criminal) 19 ALR (AD) 172-175

Section 427, 506 II

Offence triable by Magistrate and not by village court—

Where in a case an offence triable by the village court is joined with the offence triable by the Magistrate, the case shall be triable by the Magistrate and not by the village Court. Abul Kalam and others Vs. Abu Daud Gazi and another— 4, MLR (1999) (AD) 414.

Sections 436 and 148-Mere plea of right of private defence cannot be a ground for quashing the criminal proceeding, for such plea is to be established by the accused who takes it. A criminal proceeding iş liable to be quashed only if the facts alleged in the First Information Report or complaint petition, even if admitted, do not constitute any criminal offence or the proceeding is barred by any provision of law.

Where disputed facts, are involved, evidence will be necessary to determine the issue. The appellants have produced an order of temporary injunction against the complainant's party. This must be considered along with other evidence during the trial. Their application for quashing the proceedings is found to have been rightly refused by the High Court Division. SM Khalilur Rahman vs State 42 DLR (AD) 62.

Sections 441/447

On the facts and circumstances of the case we have not hesitation to hold that the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who despite his protest, carried on the work of construction. So the ingredients of sections 441/447 of the Penal Code have been well established. Mohammad Ali & Ors. Vs. A. F. M. Mazedul Huq khan Lohani & Anr. 8 BLT (AD)-96

Sections 441/447

Criminal trespass

It provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.

In the instant case the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction. So the ingredients of section 441/447 of the Penal Code have been well-established. Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19BLD (AD)260

Sections 441/447

The dominant intention of the appellant was to annoy the complainant who was in possession of the case land even though the complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction and hence the ingredients of sections 44 1/447 of the Penal Code have been well established. Mohammad Ali vs Abdul Fazul Mia Md Mazedul Huq and another 4 BLC (AD) 259.

Section 447 & 427

As far as the assessment of evidence is concerned, both the Courts below believed the complainant's case and the High Court Division committed no wrong in accepting the findings of the Court of fact. Causing of mischief having been proved the ingredients of the offence of criminal trespass are also satisfied. It is not correct to say that no criminal action lay merely because the complainant could bring an action in the Civil Court for violation of the order of temporary injunction. The Civil Court's order of injunction having not been disputed, it was no defence to the accused that they were co-sharers in the disputed land and the complainant's wife was not in exclusive possession thereof. Alauddin & Ors Vs. Md. Shah Alam Khan & Anr 7 BLT (AD)-356

Section 447

Offence of Criminal trespass—

In order to be sustainable the conviction and sentence under section 447 of the Penal Code must satisfy the ingredients enumerated under section 441 and the intention of the accused must be there to cause annoyance or intimidation or insult to the person in possession of the land by the illegal trespass. Mohammad AH Member Vs. Abul Fazal Mia Md. Mazedul Huq and another— 4, MLR (1999) (AD) 373.

Section 463- Section 463 of the Penal Code defines forgery and forgery is said to have been committed when a person makes a false document or any part of a document for one or more of the purposes mentioned in the section. Ibrahim Ali vs State 56 DLR (AD) 149.

Section 463-To find one guilty of forgery there must be an original document first. In the absence of the original one, it cannot be said that the resolution by the Bar Association dated in question is a forged resolution. SA Alim vs Dr Md Golam Nabi 48 DLR 98.

Sections 463 & 464-Ante-dating of a docu- ment with any of the intentions such as, causing damage or injury to a person by way of depriving him of his right already acquired by a kabala constitutes forgery.

Amatunnessa transferred her entire interest to the appellant by the kabala executed and registered by herself of 18-7-75 (Ext.1) and was thereafter left with nothing for subsequent transfer to anybody, but she executed the subsequent kabala (Ext.4) in favour of her brother accused Syeduzzaman conveying the same land by antedating the kabala showing that it had been executed earlier than the appellant's kabala. Execution of the subsequent kabala shows her intention to deprive the appellant of his right already acquired by his kabala which was found to be genuine. "Forgery" means making of a false document with certain intentions, such as to cause damage or injury to a person, to support any claim or title, to commit fraud. Amjad Molla vs Syeduz- zaman Molla 46 DLR (AD) 17.

Sections 463, 464 and 467-Champak Lata neither a Shebayet nor a daughter of the deceased Shebayet, executed the impugned sale deed in respect of the debuttar property belonging to the Deity by claiming herself as a Shebayet and a daughter of the deceased Shebayet, constituted an offence of making a false deed. Harunur Rashid vs State 56 DLR (AD) 201.

Section 466 and 477

read with

The Evidence Act, 1872—

Section 73— Comparing disputed handwritiags by the judges themselves— When permissible—

In a case of forgery where the opinion of the Handwriting Expert is not clear and specific as to the disputed handwritings, the judges are entitled under section 73 of the Evidence Act, to compare the handwritings themselves and on such comparison together with other relevant circumstantial evidence conviction of the accused can well be secured. Raisuddin Mondal (Md) and another Vs. The state— 3, MLR(1998) (AD) 30.

Section 466 and 471

Sentence under both section—

An accused found guilty of the offence under section 466 of the Penal Code can be convicted and sentenced under section 466 but he cannot be sentenced under both sections 466 and 471 of the Penal Code. A public servant making forgery in preparing false order can well be sentenced under section 466 of the Penal Code as well as under section 5(1) of the Prevention of Corporation Act, 1947. Azizul Haque (Md) Vs. The State — 4, MLR (1999) (AD) 215.

Sections 467/468/469/471/472/420 and 34

Code of Criminal Procedure, 1898

Section 561A

Penal Code, 1860

Sections 467/468/469/471/472/420 and 34

Power under section 561A of the Code of Criminal Procedure by itself, makes it obligatory for the High Court Division to exercise the same with outmost care and caution– The High Court Division will not quash the proceeding if it is required to call upon appreciation of evidence. It cannot assume role of appellate Court while dealing with an application under section 561A of the Code of Criminal Procedure. In the instant case, since the petition of complaint discloses prima facie case against the accused respondents punishable under the aforesaid provisions of law, Appellate Division is of the view that the High Court Division has committed an error of law in setting aside the cognizance taking order of the Magistrate. It failed to exercise its power under section 561A of the Code of Criminal Procedure having regard to the facts and circumstances of the case. Considering the contents of the petition of complaint, cognizance taking order of the Magistrate and other materials on record, this Division finds substance in this petition. The impugned judgment and order of the High Court Division dated 15.01.2019 passed in Criminal Miscellaneous Case No.52894 of 2017 is hereby set aside. The trial Court is directed to proceed with the case in accordance with law. ...Sourthern University Bangladesh =VS= Md. Osman, (Criminal), 2021(2) [11 LM (AD) 147]

Section 467

A document of transfer may be avoidable ton very many grounds including that it was (executed when the executant was lying ill or under the influence of the person claiming under the document. But to secure a conviction for forgery in a case like the present it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused. Clearly there is no such evidence and the circumstances referred to by the High Court Division may be enough for a Civil Court not to rely on such document but for a conviction for forgery there must be clear evidence as to the above which are the ingredients of the offence. Shawkat Hossain Akanda Chowdhury Vs. The State 6 BLT (AD)-49

Section 467/109

It is on record that the original forged deed was not produced before the trial court. The certified copy of the disputed deed was marked as Exhibit 12 wherein the name of Md. Sirajul Haque appeared and from this alone it cannot be conclusively concluded that it is this appellant Md. Sirajul Haque who identified a wrong person knowing that Bishnupada Roy was not the executant of the deed. Admittedly the certified copy of the forged deed having been filed there was no scope to examine the signature of appellant No.2 Md. Sirajul Haque. Thus, we hold that there was no legal evidence on record to connect appellant No. 2 Md. Sirajul Haque with the abatement of the forged deed. Mohir Molla & Ors. Vs. The State 7 BLT (AD)-149

Sections 467, 468, 471

The accused persons not being able to produce anything in support to this alleged auction purchase- Conviction Justified.

In support of auction purchase no rent receipt was produced by this accused person during trial nor was any suggestion made to this effect to the prosecution witnesses. It cannot be said that onus of proof was shifted upon the accused persons. Conviction is as such held justified. Md. Kahar Ali Mondal and Other vs The State 1 BLT (AD)-44

Section 467 and 471

Reduction of sentence on ground of old age— Point not raised before trial court and appellate court can not be allowed to be raised for the first time before Appellate Division—

The appellate court is competent to reduce the substantive sentence of imprisonment, on ground of old age of the convict-appellant. Once the sentence is reduced by the appellate court on ground of old age of the Convict-Appellant the Appellate Division declined to further reduce the sentence on the same ground. Point not raised before the trial court as well as the appellate court, cannot be raised for the first time before the Appellate Division. Abdul Hye (Moalana) Vs. The State— 3, MLR (1998) (AD) 262.

Section 467 / 471 / 109

Sustainability of the sentence— When evidences are consistent—

Conviction and sentence based on unbroken chain of events supported by consistent evidence on record which are confirmed by the appellate and revisional court can not be interfered with by the Appellate Division when the same does not suffer from any legal infirmity or perversity. Zaidul Hque Vs. The State— 3, MLR(1998) (AD) 260.

Section 467 and 420

Criminal Proceeding is maintainable when the allegations are obviously criminal in nature—

Criminal Proceedings are not precluded merely on the allegations that the dispute is of civil nature when the dispute apparently appears to be criminal in nature. Ibrahim Bepari and another Vs. The State & another— 5, MLR (2000) (AD) 204.

Section 467-Making a false document- The maker must dishonestly execute the docu- ment with the intention of causing it to be believed that such document was executed by or by the authority of a person by whom or by whose authority he knows that it was not executed. Al- haj Md Serajuddowlah vs State 43 DLR (AD) 198.

Section 467-To secure a conviction for for- gery in this case it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practised upon him did not know the contents of the document and, in such, state he was made to execute the document by the accused. Showkat Hossain Akanda Chowdhury vs State 50 DLR (AD) 128.

Section 468 and 468/109

It being the definite case of the prosecution that appellant No.3 along with others have executed two Muktipatras in favour of the appellant Nos. 1 and 2 and another containing false statement relating to property leased out to the executants of the Muktipatras and others upon treating the property as vested property to the effect that the said property is the ancestral property of the recipients of the Muktipatras. The undisputed fact is that appellant No. 3 and others have executed the document and that therein they have made some untrue statements regarding the property relating to which they executed the Muktipatras. The documents i.e. Muktipatras having admittedly been executed by the appellant No. 3 and others the same is in no way can be said to have been brought into existence under the circumstances or situations mentioned in Section 464 in the presence whereof a person is said to make a false document." From the ratio of the cases referred to herein over it is seen that it has uniformly been held that making of false statement in a document by the executants thereof does not saddle him with the liability of committing forgery or that of making a false document. Hazi Ibrahim Ali & Ors. Vs. The State 11 BLT (AD)-39

Sections 468/471/409/120

The Penal Code, 1860

Sections 468/471/409/120

The Prevention of Corruption Act

Section 5

Code of Criminal Procedure, 1898

Section 561A

The petitioner did not misappropriate even a single piece of those CI sheets, so, filing of the instant case was malafide, preposturous and had been brought only to harass the appellant which is liable to be quashed–– From the contents of the FIR and statements quoted above it appears that 36 pieces of CI sheets were recovered from the Madrasha. Out those CI sheets, 19 pieces were recovered removing those from the constructed roof of the tin shed of Madrasha and rests were seized from inside the Madrasha. Earlier those were sanctioned for Madrasha on the basis of the application made by the authority of the Madrasha. That is, no CI sheet was recovered from the custody and control of the appellant. Only allegation is that the appellant, keeping those CI sheets in his custody for few days, delivered those sheets to the Madrasha authority. ––That is, admittedly, he did not misappropriate those CI sheets and those were not recovered from his custody and control. That was a trivial matter that has been given undue importance. Moreover, in the meantime 14 years has elapsed. After 14 years, it will not be appreciatable for a ordinary prudent and senseable man to allow the instant case to proceed with. Taking into consideration the facts and circumstances of the case, the FIR and other prosecution papers taken in pursuance thereof, would be an abuse of the process of Court. Thus, the appeal is allowed. The instant GR Case is dropped. .....Abu Taher (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD) 297]

Sections 468 and 468/109-Making of false statement in a document by the executant does not saddle him with the liability of committing forgery or that of making a false document. Ibrahim Ali vs State 56 DLR (AD) 149.

Section 471

The accused petitioner was Bench Assistant in the Court of Thana Magistrate Kurigram. In that Court, a Certificate Case was started against Khijir Uddin and on the basis of the process issued by the court in the case Khijir Uddin was arrested. After his arrest his wife Nurun Nahar Begum came to the Court of the Magistrate and talked to the accused petitioner and handed over Tk 3,093/- to him for depositing the money in the Certificate case. The accused petitioner after accepting the amount prepared a recall order and gave a photocopy of that order to Nurun Nahar. Khijir Uddin got released from the Thana on the basis of that falsi order-Held: In the present case it has been proved that the recall order was used bm Nurun Nahar Begum in getting Khijir Uddul released from the Thana. The accused petitioner was certainly an abettor in so far as Section 471 of the Penal Code is concerned. Md. Azizul Haque Vs. The State 7 BLT (AD)-121

Section 471

For the offence under section 471 of the Penal Code an accused can be punished, as provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah Vs The State, 17BLD(AD)170

Sections 471/475/476

The Code of Criminal Procedure, 1898

Section 195 (1)(c) r/w

The Penal Code, 1860

Sections 471/475/476

Share certificate are forged and has no value in the light of the expert report– In the light of the expert report with regard to the thumb impression appearing on the document of transfer of shares and considering the fact that the document prima facie appears to have been forged, we hereby direct Mohammad Mehdi Hasan, Deputy Registrar, Supreme Court of Bangladesh to lodge a complaint, before a Magistrate of the first class having jurisdiction, against the appellants, namely Reza Bin Rahman and Abdul Wahab Azad in terms of section 195 (1)(c) of the Code of Criminal Procedure for committing an offence punishable under sections 471/475/476 of the Penal Code. …Reza Bin Rahman =VS= A.T.G. Mortaza, [7 LM (AD) 8]

Section 471 and 465

No independent sentence can be passed under section 471— No sentence in excess of the limit prescribed—

Section 471 does not prescribe any sentence independently. It is dependent upon section 465 which prescribes sentence of either description for a term which may extend to two years or with fine. No sentence in excess of the limit as provided under section 465 can be awarded under section 471 of the Penal Code. Abul Hossain Mollah alias Abu Mollah Vs. The Slate— 2, MLR(1997) (AD) 332.

Section 471-For the offence under section 471 of the Penal Code an accused can be punished as provided in section 465 of the Penal Code upto 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprison- ment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah vs State 50 DLR (AD) 96.

Section 471-The High Court Division is palpably wrong in holding that when an accused is convicted and sentenced under section 466 he cannot again be convicted and sentenced under section 471 of the Penal Code. In the present case it has been proved that the recall order was used by Nurun Nahar Begum in getting Khijiruddin released from the Thana. The accusedpetitioner was certainly an abettor in so far as section 471 of the Penal Code is concerned. Azizul Hoque vs State 51 DLR (AD) 216.

Section 471

The Appellate Division held that One of the allegation made in the F. I. R. of the case in question is that this accused- respondent along with others created false resignation letter by forging signature of the appellant and submitted that to the Registrar of the Joint Stock Companies and Firms. The High Court Division though observed that this allegation attracted section 471 of the Penal Code but quashed the proceeding of this case on the ground that this very allegation was made by this appellant in an earlier case, the Appellate Division held that the said observation of the High Court Division is not sustainable in law. Ms. Ok Kyung Oh-Vs.-Mr. Bo-Sun Park and another 6 ALR (AD) 2015 (2)142

Sections 469, 500 and 501-The accused is involved in journalism in the The Daily Janakantha' he published a false and concocted report introduced a baseless story without any proof and thereby, he depraved the goodwill and reputation of the complainant.

If the case was frivolous one the ac- cused-petitioner could deny the allega- tions imputed against him by cross-ex- amining the prosecution witnesses and also by examining witnesses in support of his defence case but he failed to do so. The accused-petitioner also did not make any attempt to prove that the news was correct by adducing witnesses.

The Appellate Division having gone through all the three judgments, the Ap- pellate Division is of the view that the petitioner was rightly convicted under section 501 of the Penal Code. Having considered all aspects of the case, the Appellate Divi- sion is of the view that the ends of justice would be met if the period of sentence im- posed upon the petitioner is reduced to the period that he had already undergone in the jail custody. The accused-petitioner, will, however, have to pay the fine imposed upon him. Accordingly, this criminal peti- tion is disposed of and the judgment and order passed by the High Court Division is modified to the extent that the sentence of imprisonment imposed upon the accused- petitioner is reduced to the period which he has already undergone in jail custody but he will have to pay the fine of Tk. 10,000/- (ten thousand), in default, to suffer rigorous imprisonment for 10 (ten) days more. Md. Zahangir Alam Shaheen -Vs.- Advocate Md. Abu Tayab and another (Criminal) 13 ALR (AD) 179-180

Section 482 and 486

Lump sentence improper—

Finding the accused guilty under sections 482 and 486 and awarding of lump sentence for both offences are improper and not sustainable in law and as such the sentence impugned is modified. Hazi Oziullah and another Vs. State— 1, MLR (1996) (AD) 139.

Section 488

Cosharer out of possession can not enter by breaking lock—

The accused has no legal right to enter into the room by breaking the lock under occupation of the informant even though he is a cosharer of their ancestral property. When the conviction and sentence is well based on consistent evidence, the same does not call for any interference. Abu Md. Sayem @ Taslim Vs. The State— 4, MLR (1999) (AD) 191.

The power of commutation...

The power of commutation and remission is within the domain of the executive Government, but the Courts have the jurisdiction to determine the entitlement:

The power of commutation and remission as contained in the Penal Code, Code of Criminal Procedure and the Jail Code are within the domain of the executive Government and such privilege may be extended by the Government to the convicts undergoing imprisonment for life. But the Courts have the jurisdiction in certain circumstances to pass an order directing that the accused shall not be entitled to the benefit of Penal Code, the Code of Criminal Procedure and the Jail Code in respect of commutation, deduction and remission. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1

Section 500

The complainant respondent filed a petition of complaint alleging that being the owner of 10 buses in transport business and was vice president of Chittagong City Auto Owner Association for 18 years from 1969 to 1986. The accused petitioner, the present General Secretary of Chittagong City Auto Owners Association, with malicious intention of defaming him in the eye of the society, published an advertisement in the Daily Azadi falsely alleging that while the respondent was vice president of the said Association, collected subscription from each bus every day and misappropriated about Tk.-l crore within 18 years- Held: The High Court Division came to a finding on the basis of the evidence on record that the respondent as Vice President had no connection with the collection of subscription or maintenance of accounts. He was simply to preside over the meeting of the Association in the absence of the President. The High Court Division also found that the impugned publication was made with the malicious intention of defaming the respondent in the eyes of society- We do not find any ground for interference. A. K. M. Jahangir Vs. Haji Munshi Meah 5 BLT (AD)-184.

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