Evidence Act, 1872

Evidence Act, 1872 Section 3- Circumstantial evidence-The rule as regards sufficiency of circumstantial evidence to be the basis for conviction is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis than that of his guilt. State vs Ali Kibria 43 DLR 512. Section 3- The evidence by trap party is tainted in nature and as such corroboration from independent and neutral witnesses is very much necessary. AKM Mukhlesur Rahman vs State 45 DLR 626. Section 3-Material consistent with innocence When some material is brought on record consistent with innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused is entitled to acquittal. State vs Ali Kibria 43 DLR 512. Section 3-Circumstantial evidence-Its sufficiency to prove guilt-In the instant case circumstantial evidence on which trial Court relied do not conclusively point to guilt of the accused-Mere movement of the accused near the place of occurrence may raise a suspicion against the accused but this cannot be the basis for their conviction. Ali Ahmed Malaker vs State 43 DLR 401. Section 3-Document' occurring in section 3(16) of the General Clauses Act and section 3 of the Evidence Act-Meaning of Whether kabalas are documents as referred to in those Acts. Abdus Sattar Bhuiyan vs Deputy Commissioner, Dhaka 42 DLR 151. Section 3-Circumstantial evidence- circumstances forming evidence in proof of the crime must be conclusively established-They must form such a complete chain that it was not only inconsistent with the guilt of the accused but was inconsistent with any reasonable hypothesis of innocence. State vs Ranjit Kumar Pramanik 45 DLR 660. Section 3- Conviction on circumstantial evidence if it is proved beyond doubt that the deceased is seen last alive in the company of the accused, he is liable to offer satisfactory explanation as to the cause of death of the deceased or at least as to his company with the deceased. If circumstantial evidence leading to the irresistible conclusion that the accused alone caused the death of the victim is not considered sufficient for his conviction then there can never be any conviction on circumstantial evidence. In other words, the prosecution cannot prove its case by circumstantial evidence. Such a concept is contrary to time honoured principle of law regarding circumstantial evidence. Rezaul Huq vs State 42 DLR 440. Section 3-A statement under section 342 CrPC is not evidence within the meaning of section 3 of the Evidence Act. Shah Alam vs State 42 DLR (AD) 31. Section 3- Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah 50 DLR 564. Section 3-Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for nonproduction of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah vs. Ruhul Amin 50 DLR 618. Section 3-Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker vs State 49 DLR 480. Section 3-A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in to to. Masum vs State 49 DLR 349. Section 3-Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah vs State 49 DLR 97. Section 3-In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the Court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this Court. Nurunnahar Khatun vs State 46 DLR 112. Section 3- Circumstantial evidence-If the circumstances are not proved beyond all reason- able doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accuseds alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul vs State 47 DLR 486. Section 3- Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused-person. State vs Balai Chandra Sarker 47 DLR 467. Section 3-The statements under section 164 of the Code of Criminal Procedure recorded before an authority other than the Judge who tried the case was not the statement of the witnesses produced before him, and, as such, this could not be treated as oral evidence. Such statements could not be used as substantive evidence for arriving at any finding as to the guilt or innocence of the accused. Babloo vs State 47 DLR 337. Section 3-A witness for the prosecution does not become partisan per se nor an eyewitness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole, State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3- Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. AlAmin vs State 51 DLR 154. Section 3- The confession of co-accused can be considered to lend support to the other evidence, if any, but in this case there is no other evidence so far appellant Idris is concerned other than the confessional statement of the co-accused. Therefore the conviction Idris is based on no evidence and is liable to be set aside. State va Rafiqul Islam 55 DLR 61 Section 3-Circumstantial evidence may be and frequently is more cogent than the evidence of eye-witnesses. It is not difficult to produce false evidence of eye-witnesses. It is, on the other hand, extremely difficult to produce circumstantial evidence of a convincing character and therefore, circumstantial evidence, if convincing, is more cogent than the evidences of eye-witnesses. State vs Moslem 55 DLR 116. Section 3-There should not be exaggerated devotion to the rule of benefit of doubt at the expense of social defence and course of justice cannot be allowed to be deflected on the concept of the rule of benefit of doubt. It is true to say with Viscount Simons that "miscarriage of justice" may arise from the acquittal of the guilty no less than the conviction of the innocent. State vs Md Awal Fakir 56 DLR 647. Section 3- Because PW 2 had been declared hostile by prosecution, his testimony did not stand effaced and evidence remains admissible in trial and there is no legal bar to accept his testimony. Babul vs State 57 DLR 158. Section 3- "Interestedness"-This has been defined by the Supreme Court of Pakistan in the case of Nazir vs State PLD 1962 SC 269 14 DLR (SC) 159 in the terms that interested witness is one who has a motive for falsely implicating an accused person. State vs Anjuara Khatun 57 DLR 277. Section 3-Credibility of a witness is accepted if it is corroborated by the evidence of other witnesses but credibility should be tested in the touchstone of the broad probabilities of the case. Montu vs State 57 DLR 504. Section 3- Only because of relationship witnesses evidence cannot be thrown away unless the evidence is found to be untrue or tainted with motive. Yogeshwar Gope vs State 58 DLR (AD) 73. Section 3- Conviction could be based solely on unimpeachable evidence of the police witnesses even if not corroborated by independent public witnesses. Hiru Mia vs State 58 DLR 607. Section 3-Prosecution case rested on circumstantial evidence which requires that prosecution is to prove each of the circumstances having a definite tendency pointing towards the guilt of the accused person and, though each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused. State vs Md Kaloo 58 DLR 638. Section 3- Conviction can be well based on the testimony of the Police personnel if it is supported by other evidence on record or if it inspires confidence. Faruq (Md) vs State 59 DLR 104. Section 3- In order to judge credibility of a witness, the Trial Judge must look into the surrounding circumstances as well as probability of the contentions, so that he may form correct idea of truth or worthiness of a witness. If the evidence is inherently weak, basically suffers from absurdity, opposed to reason, logic, human conduct, natural course of events and no man of ordinary prudence can accept it, such witness must not be relied. State vs Kajal Ahmed Jalali 59 DLR 345. Section 3-Long delay in recording statement of witness by the Investigating Officer renders his evidence unworthy of credit. State vs Kajal Ahmed Jalali 59 DLR 345. Section 3-Circumstantial Evidence- Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. Helal vs State 60 DLR 24. Section 3- Written statement submitted by the appellant when he was examined under section 342 of the Code of Criminal Procedure is not evidence within the meaning of section 3 of the Evidence Act. Such statement is to be considered along with the evidence and the circumstances and if the statement gets support from the evidence on record due weight may be given on it. [Vide 42 DLR (AD) 31]. Thus such statement cannot be the sole basis of conviction. Hasan Md vs State 60 DLR 56. Section 3-Circumstantial Evidence-It is well settled law that last seen together is a weak type of circumstantial evidence on which to have a conviction, a link between the accused and the murder has to be proved. Bablu vs State 60 DLR 583. Section 3-Circumstantial Evidence- Circumstances in respect of which an accused was not examined under section 342 of the Code of Criminal Procedure cannot be used against him. Bablu vs State 60 DLR 583. Section 3-There is no reason why the evidence of police personnel should be discarded simply because they belonged to the police force. They came before the Court and testified to the occurrence. They were fully cross examined. Their evidence is also evidence within the meaning of section 3 of the Evidence Act. Mohin Uddin vs State 61 DLR 35. Section 3- If the evidence of the hostile witness fits in with the attending circumstances, then it may be accepted and considered along with other evidence. We received support of the above view in the case of State of Uttar Pradesh vs Chat Ram AIR 1985 (SC) 1543. Sahabuddin vs State 61 DLR 54. Section 3-When there is neither any eye- witness nor any corroboration of the evidence adduced by the prosecution and the deposition of the prosecution witnesses runs counter to the confessional statement, it is unsafe to sustain any conviction.. moreso, when such conviction is based primarily on the confessional statement of a co-accused. State vs Hamidul 61 DLR 614. Section 3-Abscondence-Absconsion of the accused in certain cases can be vital circumstantial evidence, but it does not necessarily justify drawing an inference of guilt of the accused in each and every case. Ayub Ali Sheikh vs State 63 DLR 55. Sections 3 and 5-Circumstantial evidence -Its conclusiveness assessment of evidence- This is a case in which a minor boy, the victim of murder, was called away by and seen in the company of the two young accused for the last time before disappearance and then some time thereafter the body of the victim was found out. The fact of calling away of victim Khairul by accused Khasru was satisfactorily established as the first circumstance in support of the prosecution and witnesses have also satisfactorily proved that the victim travelled with the two accused from their village Noapara to a distant place called Takerhat by bus and got down there at 4-00/4-30 PM on 4-1-79. This is the second circumstance proved against the accused. From this point onward upto the time of recovery of the body of Khairul at about 3-00/3-30 PM on the following day the accused were alleged to have been seen along with the deceased, the third circumstance in the absence of ocular evidence of murder, by PWs 11 and 12. The High Court Division rejected their evidence due to apparent contradiction between their evidence and the statement made by them before the police and also for the reason that their identification of the accused in the TI Parade had lost all significance in view of the fact that they had chance to see the accused. There has been no violation of any norm or procedure in assessing the evidence of the said two witnesses for which the finding of fact made by the High Court Division could be disturbed. The position, therefore, comes to this that the third circumstance, that of, seeing the three boys together near the bank of the river where the victim's body was found was not satisfactorily established. The circumstances of the case can never be said to be conclusive as to the guilt of accused Khasru and his brother Nowab. The High Court Division has correctly applied the rule as to circumstantial evidence in the facts of the present case. State vs Khasru @ Syed Mostafa Hossain 43 DLR (AD) 182. Sections 3 and 5-Glaring inconsistencies between the existence of injuries on the body of the deceased as found by the post-mortem doctor and the evidence of prosecution witnesses about injuries caused by the appellants lead to the conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Kadu vs State 43 DLR 163. Sections 3, 5 & 8-Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house, he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544. Sections 3 & 30-Confession of co- accused The confession of an accused is no evidence against the coaccused. Such confession cannot be taken into consideration against his coaccused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a coaccused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30-Confessional statement of coaccused by itself is not an evidence within the meaning of section 3 of the Act unless it is suppor- ted in material particulars by other evidence, at best it can be used against the maker. Abdus Sattar @A. Sattar @Sottar vs State 58 DLR 415. Sections 3 & 30-It is true confession of an accused may be used as against other coaccused in the same trial. But this is for a limited purpose. Confession of a coaccused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other coaccused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain vs State 46 DLR 77. Sections 3 & 30-Since the confessional' statement is not required to be taken on oath and taken in presence of a coaccused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Sections 3 and 30-Confession-Question of credibility when part of the occurrence is omitted or suppressed-It cannot be found nor it could be suggested by either the prosecution or the defence why throttling part of the occurrence was omitted or suppressed. Even if it be taken that accused Rina had deliberately suppressed the throttling part of the occurrence in her judicial confession that cannot mean that the confession was not true. Shahjahan Manik vs State 42 DLR 465. Sections 3 & 32-Allegation made by the deceased prior to the occurrence cannot be treated relevant for the trial as it is not a subs- tantive evidence like dying declaration related to the act of the murder. State vs Kajal Ahmed Jalali 59 DLR 345. Section 3-Confession of a co- accused is a type of evidence which is very weak in nature, as it does not come within the definition of "evidence". State vs Abdul Kader @Mobile Kader, 67 DLR (AD) 6 Section 3-If there is no other evidence against co-accused except the confession, then, the confession by itself being merely a matter to be taken into consideration, and not being an evidence under section 3, no conviction of the co- accused could be given relying on such confession. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Sections 3 & 154- Cheque, which is otherwise complete except the date, will be treated as an inchoate document handed over to the payee with implied authority (unless an express authority is annexed) to write the date on the cheque. It is the choice and decision of the drawer of a cheque to hand over a date, post-dated or undated cheque to the payee. He (drawer) cannot subsequently come with the plea that an undated or post dated cheque handed over to the payee. In such case he is stopped by his conduct, called estoppels by conduct, and cannot be allowed to deny his obligation only on the excuse that an undated cheque was given to the payee. Ahmad Ullah vs Younus, 68 DLR 228 Sections 3 and 8-Unexplained abscondence of the accused is a supporting circumstance which must be considered along with the substantive evidence on record, if any, forthcoming against the accused. Akbar Ali Lalu alias Roni vs State, 66 DLR 134 Sections 3 and 30-Confessional statement of co-accused-Its value-The confessional statement of co-accused is admissible against other accused-persons in the sense that it may be taken into consideration against them along with other evidence. But it cannot be the sole basis of conviction of a co-accused. State vs Delwar Hossain, 64 DLR 356 Section—3 Video Cassette—Video cassette whether is a document and whether the same is admissible in evidence — Video Cassette is a document within the meaning of the Evidence Act and is accordingly admissible in evidence if otherwise relevant in course of a trial or proceeding — when sound recorded on a tape is admissible in evidence, the record of sound and picture should equally be admissible in evidence. Mrs. Khaleda Akhtar Vs. The State; 5BLD (HCD) 303 Ref. AIR. 1964 (SC) 72; AIR. 1968 (SC) 147; PLD l976 (SC) 57 (69) Cited. Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349. Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97 Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112. Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486. Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467. Section 3— The statements under section 164 of the Code of Criminal Procedure recorded before an authority other than the Judge who tried the case was not the statement of the witnesses produced before him, and, as such, this could not be treated as oral evidence. Such statements could not be used as substantive evidence for arriving at any finding as to the guilt or innocence of the accused. Babloo and another vs State 47 DLR 337. Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154. Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544 Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77. Sections 3 & 30— Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused.. Mojibar vs State 51 DLR 507 Sections 3 & 30- 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 3, 8, 30- Even an innocent man may feel panicky and to evade arrest and trial may abscond when suspected of grave crime like murder. Abscondence by itself was not conclusive proof of guilt or guilty conscience of an accused but it might lend support to other evidence on record... Alamgir Hossain -VS- State, [10 LM (AD) 466] Evidence Act (I or 1872) S. 3 Confession is not evidence-Upon the plain meaning of the word evidence as given in section 3 of the Evidence Act, the plea of the accused whether it amounts to a confession or not is not evidence State Vs. Satya Pada Biswas (1962) 14 DLR 121. -Admission of guilt by the accused at the commencement of the trial has not been treated as evidence. State Vs. Satyapada Biswas (1962)14 DLR 121:1962 PLD (Dar) 340 The mere fact of the story having been told to a number of relations shortly after the occurrence is insufficient corroboration. Equally the fact of the story having been communicated by the relations to other neighbours and later to authorities is by no means sufficient corroboration. Muhammad Abdul Khaleque Vs. State (1960) 12 DLR(SC) 165. -Confession of a co-accused not evidence. A confession of a co-accused is obviously an evidence of a very weak type. It does not indeed come within the definition of 'evidence'. It is not re-. quired to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination. (1950) 2 DLR(PC) 39. -Probability-that of a prudent man. Section 3 does not even remotely provide that a Court ought to ignore all doubts regarding the exis- tence of a fact if it considers its existence more prob- able or likely. It does not lay down a comparative standard of probability. It enjoins that the judgment regarding probability must be that of a prudent man acting with due regard to all the circumstances of the case before him. (1956) PLD (Lah.) 300. Existence of a document in a record does not make it an evidence. Produced for the inspection of the Court' means produced in accordance with the provisions of the Evidence Act. Merely because a document was con- tained in the record of the committing Court, it can- not be said that it automatically becomes evidence in the Court of Session or was produced for the inspec- tion of the Court of Session. (1957) 9 DLR 645. -Confession of a co-accused is not substantive evidence within the meaning of section 3 of the Evidence Act-Although confession of a co-accused cannot be treated as sub, stantive evidence against another accused and cannot be the sole basis for conviction of another accused but along with other direct or circumstantial evidence the Court may "take into consideration such confession" and can use the same "to lend assurance to other evidence" Mobarak Hossain Vs. State (1981) 33 DLR 274 --Ss. 3, 6 & 8 Statements in F.IR. which do not come in evidence cannot be used in finding the accused guilty of charge. Self-exculpatory confession of an accused cannot be legally used in finding co-accused guilty as it is no evidence as defined in s.3 of Evidence Act. Moniruddin Sana Vs. State (1988) 40 DLR 402 "Evidence"-Its meaning. Section 3 of the Evidence Act defines "evidence" and provides that "evidence" means and includes (1) all statements which the Court permits.or requires to be made before it by witnesses, in rela- tion to matters of fact under inquiry: such statements are called oral evidence: (2) all documents produced for the inspection of the Court: such documents are called "documentary evidence" Except what has been provided in the Cr.P.C. and the Evidence Act, the trial Court has no power and jurisdiction to treat any other oral evidence except the one made before it by witnesses, to be treat- ed as evidence in the case. Ansar Ali Vs. State (1983) 35 DLR 303. -"Document" and video cassette-A video cassette is a document within the meaning of the Evidence Act and is accordingly admissible in evidence. Mrs. Khaleda Akhtar Vs. The State (1985) 37 DLR 275. Ss, 3 and 30-The language of s. 30 does not render the confession of a co-accused as evidence within the definition of s.3 of the Evidence Act. Ma- mud Ali Vs. State (1985) 37 DLR 261. -The confessional statement of a co-accused is a matter for consideration against another co-accused if tried jointly. Mamud Ali Vs. State (1985) 37 DLR 261. Section—3 Confession of a co-accused—it does not come within the definition of ‘evidence’ as contained in section 3 of the Evidence Act. It may however lend assurance to other evidence. Dula Mia alias Nurul Islam Vs The State 14 BLD (HCD) 477 Section—3 Confession of a co-accused is no evidence against other accused persons and the same cannot be made the sole basis of conviction of others. The Court can however consider the same to lend assurance to other independent evidence on record. The State Vs. Md. Musa alias Musaiya alias Shafir Bap 15BLD (HCD)169 Sections—3 and 30 Confession of a co-accused It is now well-settled that the evidentiary value of a confession, particularly of a retracted confession by a co-accused is nil in the absence of strong, independent and corroborative evidence. Faruk Mahajan and others Vs The State, 17BLD(HCD)15 Ref: 16DLR558;1983BLD325; PLD1960 (WP)Karachi 817; 1984BLD(AD)193—Cited. Sections—3 and 30 It is an accepted proposition of law that the confession of a co-accused is no evidence against the other accused within the definition of section 3 of the Evidence Act. The purport of section 30 is that the confession of a co-accused can only be used to lend assurance to other evidence which by itself must be sufficient to support a conviction. Abdul Awal and others Vs. The State, 14 BLD (HCD)187 Ref: 1952 S.C.R. (India) 526—Cited. Sections—3 and 30 Confession of co-accused The confession of an accused is no evidence against the co- accused under section 3 of the Evidence Act. Under Section 30 of the Evidence Act the confession of an accused can be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53 Sections—3 and 30 Confession of a co-accused Even if the confessional statement of one accused is found to be true and voluntary, still his confession cannot be used against those who are co-accused in the case, as the basis for convicting them when there is no other evidence against them. Dr. Ishaq Ali Vs. The State (1993) 13BLD (HCD)236 Ref: 5DLR 369; 18 DLR (West Pakistan) 112—Cited. Section —3 Proceeding before Arbitrator Arbitration Award cannot be quashed simply on the ground of Misreading of evidence. Arbitrators in awarding Award had taken upon themselves the duties of Arbitrators carefully and considered papers in the case and passed the Award. It, thus, cannot be at all suggested that the Award rested on no evidence or on Misreading of evidence. Chittagong Steel Mills Ltd & Anr. Vs M/S MEC & Ors. 13 BLT (HCD)230 Section 3— Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564. Section 3— Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480. Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349. Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97 Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112. Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486. Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467. Section 3— The statements under section 164 of the Code of Criminal Procedure recorded before an authority other than the Judge who tried the case was not the statement of the witnesses produced before him, and, as such, this could not be treated as oral evidence. Such statements could not be used as substantive evidence for arriving at any finding as to the guilt or innocence of the accused. Babloo and another vs State 47 DLR 337. Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154. Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544 Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77. Sections 3 & 30— Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused.. Mojibar vs State 51 DLR 507 Section 3— Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564. Section 3— Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480. Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349. Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97 Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112. Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486. Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467. Section 3— The statements under section 164 of the Code of Criminal Procedure recorded before an authority other than the Judge who tried the case was not the statement of the witnesses produced before him, and, as such, this could not be treated as oral evidence. Such statements could not be used as substantive evidence for arriving at any finding as to the guilt or innocence of the accused. Babloo and another vs State 47 DLR 337. Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154. Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544 Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77. Sections 3 & 30— Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused.. Mojibar vs State 51 DLR 507 খন্ডনীয় অনুমান-এলাহাবাদ হাইকোর্ট পর্যবেক্ষণ করেছেন এটা সন্দেহাতীত সত্য যে যদি প্রাপক কোন নোটিশ গ্রহণ করতে অস্বীকার করেন তাহলে তার উপর নোটিশ জারী বিষয়ক অনুমান উদ্ভুত হয়। কিন্তু সাক্ষ্য আইনের ৪ ধারার প্রেক্ষিতে এটা খন্ডনযোগ্য অনুমান এবং বিবাদী সাক্ষ্য দ্বারা প্রমাণ করতে পারেন যে তিনি কোন নোটিশ পাননি এবং নোটিশ গ্রহণ করতে অস্বীকারও করেননি। [সাতনারেইন বনাম রাম কিষান, ১৯৮১ সিভ এলজে ২] আদালত অনুমান করতে পারেন-ডাক বিভাগের স্বাভাবিক কার্যক্রম-সাক্ষ্য আইনের প্রেক্ষিতে আদালত অনুমান করতে পারেন যে ডাক বিভাগের স্বাভাবিক কার্যক্রম অনুসারে কোন রেজিষ্টার্ড চিটিসমূহ এবং মানি অর্ডারসমূহ সাধারণত একই শহরে অবস্থিত প্রাপকের নিকট পরেরদিন অথবা তার পরেরদিন বিলি হয়। অত্র মামলায় পক্ষগণ একই শহরের বাসিন্দা এবং মানি অর্ডার ১৮/০৬/১৯৬৮ ইং তারিখে পাঠানো হয়েছে। যাইহোক এটা ভাবার কোন কারণ নেই প্রাপকের নিকট উহা ২০/০৬/১৯৬৮ ইং তারিখে অবশ্যই পৌছে থাকবে। জারিফ খান বনাম মুখতার আহমেদ, ১৯৬৪ অল এলজে ১৪৮ মামলায় বলা হয়েছে যে, যেখানে পক্ষগণ একই শহর ও একই ডাক এলাকার বাসিন্দা সেখানে আদালত সাক্ষ্য আইনে ১১৪ ধারার বিধান মোতাবেক অনুমান করতে পারেন যে ডাকবিভাগের স্বাভাবিক কার্যধারা অনুসরণ করা হয়েছে এবং ১৩ই জুলাইয়ের মানি অর্ডার ভূমি মালিকের নিকট ১৪ই জুলাই পৌছেছে, যদিও বিলির প্রকৃত সময় নিশ্চিত করা যায় না। [শ্রীমতি বিব্বো বনাম শেখ বরকি আলী, ১৯৮১ সিভ এলজে ১১৬] অনুমান- সাক্ষ্য আইনে অনুমান হলো এমন সিদ্ধান্ত যা একটি যৌক্তিক মন স্বাভাবিকভাবে উক্ত সিদ্ধান্তে পৌছাতে পারে। যখনই আইন অনুমান করার অনুমতি প্রদান করে তখন আদালত সাক্ষ্য আইনের ৪ ধারার বিধান মোতাবেক কোন একটি ঘটনা প্রমাণের উদ্দেশ্যে অনুমান করতে পারেন। যদি অনুমানের বিষয়টি কোন ধারায় উল্লেখ থাকে তাহলে আদালত উক্ত ধারায় অনুমান করতে পারেন। মামলার পরিস্থিতির উপর এটা নির্ভর করে। [ রাম দাস বনাম সুরেন্দ্র নাথ, এআইআর ১৯৮০ অল ৩৮৫, এফবি] অনুমানের প্রকারভেদ- অনুমান ৩ ধরণের। (১) অনুমতিসূচক অনুমান বা ঘটনা বিষয়ে অনুমান, (২) বাধ্যতামূলক অনুমান বা আইনের অনুমান, এবং (৩) অখন্ডনীয় আইনের অনুমান বা চুড়ান্ত অনুমান। [ সৈয়দ আকবর বনাম স্টেট অব কর্ণটক, এআইআর ১৯৭৯ এসসি ১৮৪৮] ঘটনার অনুমান-ঘটনার অনুমান হলো কতগুলো ঘটনার সিদ্ধান্তসমূহ যা অভিজ্ঞতা এবং প্রকৃতির স্বাভাবিক পর্যবেক্ষণ, মানব মনের গঠন, মানব ক্রিয়ার সুত্রপাত, সমাজের রীতি নীতি এবং মানবিক বিষয়ের স্বাভাবিক কার্যক্রমের মাধ্যমে গ্রহণ করা হয়। [ সৈয়দ আকবর বনাম স্টেট অব কর্ণটক, এআইআর ১৯৭৯ এসসি ১৮৪৮] আইনের অনুমান- আইনের অনুমানের ক্ষেত্রে আদালতের কোন ইচ্ছাধীনতার ক্ষমতা দেয়া হয়নি এবং আদালত কোন বিষয় সম্পর্কে অনুমান করতে বাধ্য যতক্ষণ পর্যন্ত পক্ষগণ সাক্ষ্য দ্বারা উক্ত অনুমান খন্ডায় বা অপ্রমাণিত করে। [ সৈয়দ আকবর বনাম স্টেট অব কর্ণটক, এআইআর ১৯৭৯ এসসি ১৮৪৮] অপ্রমাণিত এবং প্রমাণিত নয় এর মধ্যে পার্থক্য-সাক্ষ্য আইনে অপ্রমাণিত এবং প্রমাণিত নয় এই দুইটি বিষয়ের মধ্যে স্পষ্ট পার্থক্য করা হয়েছে। একটি বিষয়কে তখনই অপ্রমাণিত বলা হয় যখন আদালত তার সামনে উপস্থাপিত বিষয়সমূহ বিবেচনা করতঃ বিশ^াস করেন যে উক্ত ঘটনার কোন অস্তিত্ব নেই বা তার অস্তিত্ব না থাকাটা এতটাই সম্ভাব্য যে একজন বিচক্ষণ লোক উক্ত পরিস্থিতিতে এটা অনুমান করে কাজ করবে যে উক্ত ঘটনার কোন অস্তিত্ব নেই। অপরপক্ষে একটি ঘটনাকে তখনই প্রমাণিত নয় বলা যায় যখন উক্ত ঘটনা প্রমাণিতও নয় আবার অপ্রমাণিতও নয়। [শ্রী কিষাণ বনাম বানবারী লাল, এআইআর ১৯৭৪ রাজ ৯৬] Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24 Section 5— In the instant case where bitter enmity between the parties is admitted, some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Abdul Kader alias Kadu and others vs State 49 DLR 577 Section 5— Where bitter enmity between the parties is admitted some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Serajul Islam and others vs State 48 DLR 165. Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5— Police witnesses are partisan or interested witnesses in the sense that they are concerned in the success of the raid. Their evidence must be tested in the same way as the evidence of the other interested witnesses by the application of diverse considerations which must vary from case to case. In view of the attitude as aforesaid of the learned Tribunal Judge regarding the police witnesses, we are at the outset required to settle the point. There cannot be any rigid consideration in this respect. In assessing oral evidence Judges may call in aid their experience in life and test the evidence on the basis of probabilities. Thus in a proper case, the Court may look for independent corroboration when it is found not safe to dispense with. Sirajul Islam (Md) vs State 48 DLR 301. Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5— When the alleged eye­witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509. Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517. Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24 Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5— Police witnesses are partisan or interested witnesses in the sense that they are concerned in the success of the raid. Their evidence must be tested in the same way as the evidence of the other interested witnesses by the application of diverse considerations which must vary from case to case. In view of the attitude as aforesaid of the learned Tribunal Judge regarding the police witnesses, we are at the outset required to settle the point. There cannot be any rigid consideration in this respect. In assessing oral evidence Judges may call in aid their experience in life and test the evidence on the basis of probabilities. Thus in a proper case, the Court may look for independent corroboration when it is found not safe to dispense with. Sirajul Islam (Md) vs State 48 DLR 301. Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5— When the alleged eye­witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509. Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517. Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24 Section—5 The evidence of interested, inter-related and partisan witness Their evidence must be closely scrutinized before it is accepted. The correct principle in respect of the evidence of persons falling in the category of interested, interrelated and partisan witnesses is that it must be closely and critically scrutinized. It should not be accepted on its face value. Since interested witnesses may have a motive of falsely implicating the accused persons, their evidence has to cross the hurdle of critical appreciation. As their evidence cannot be thrown out mechanically because of their interestedness, so their evidence cannot be accepted mechanically without a critical examination. The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than a rule of law. The High Court was obviously wrong in holding that no corroboration was necessary in this case and failed to scrutinise the evidence of interested eye-witnesses with infirmities in their evidence. It is unsafe to rely on such evidence for sustaining a conviction on a capital charge without corroboration, either circumstantial or ocular. (Per. Mustafa Kamal, J delivering the majority judgment) There is no rule of law that if independent witnesses are not available in a case, a conviction cannot be sustained on the evidence of eye witnesses who are relations and partisan witnesses. If found to be trustworthy, conviction can be based on the evidence of such interested witnesses. When both the parties are equally powerful and divided in two hostile groups, at the present day no body likes to involve himself in a group rivalry between two strong factions of people. In such a case, it is indeed difficult for the prosecution to examine independent witnesses as the villagers would be reluctant to side with any of the parties who had longstanding enmity and rivalry between them. Furthermore, the witnesses as well as the accused being interrelated amongst themselves and enemically disposed of towards one another, it was difficult for the prosecution to examine independent witnesses. Moreover, it does not appear from the record that any independent witness who had seen the occurrence & was withheld by the prosecution to find fault with it. (Per Latifur Rahman,.J-delivering dissenting judgment) Nowabul Alam and others Vs The State, 15 BLD (AD) 54 Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5— Police witnesses are partisan or interested witnesses in the sense that they are concerned in the success of the raid. Their evidence must be tested in the same way as the evidence of the other interested witnesses by the application of diverse considerations which must vary from case to case. In view of the attitude as aforesaid of the learned Tribunal Judge regarding the police witnesses, we are at the outset required to settle the point. There cannot be any rigid consideration in this respect. In assessing oral evidence Judges may call in aid their experience in life and test the evidence on the basis of probabilities. Thus in a proper case, the Court may look for independent corroboration when it is found not safe to dispense with. Sirajul Islam (Md) vs State 48 DLR 301. Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5— When the alleged eye­witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509. Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517. Section 5-The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in crossexamination by the defence. Samad Sikdar vs State 50 DLR (AD) 24. Section 5- Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184. Section 5- Police witnesses are partisan or interested witnesses in the sense that they are concerned in the success of the raid. Their evid- ence must be tested in the same way as the evidence of the other interested witnesses by the application of diverse considerations which must vary from case to case. In view of the attitude as aforesaid of the earned Tribunal Judge regarding the police wit- nesses, we are at the outset required to settle the point. There cannot be any rigid consideration in this respect. In assessing oral evidence Judges may call in aid their experience in life and test the evidence on the basis of probabilities. Thus in a proper case, the Court may look for independent corroboration when it is found not safe to dispense with. Sirajul Islam vs State 48 DLR 301. Section 5- An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305. Section 5-When the alleged eye-witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305. Section 5-If there are admixture of falsehood so that it becomes impossible for the Courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder vs Deputy Commissioner Madaripur 48 DLR 509. Section 5-When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin 48 DLR 517. Section 5- Mere placing no reliance upon confessional statement of the accused and non- examination of the Magistrate who held TI Parade are no grounds for acquittal where the order of conviction and sentence is based on other sufficient and reliable legal evidence on record. Abdul Hashem vs State 52 DLR (AD) 117. Section 5- Calling and taking away of the victim by the appellant Billal and co-convict Saiful from his residence half an hour before his murder, recovery of the body of the victim, Billal's offer of love and threat to the PW 2 Mok- seda, and abscondence of Billal immediately after the occurrence are circumstances to lead to the conclusion that he abetted the murder. Billal vs State 52 DLR (AD) 143. Section 5-Even in case of non-examination of the seizure list witness or if the seizure list wit- nesses do not speak in terms of the prosecution case, the conviction cannot be set aside only for this reason. Moshfiqul Islam alias Bilu vs State 52 DLR 593. Section 5-It is unfortunate that for not seizing the lungi of PW I the positive testimony of this witness and other witnesses who spoke about the presence of PW 1 in the occurrence have been discarded. "Evidence false in part is false in entirety" As a matter of fact this maxim is not supported by any authority and has got no relevance in the pre- sent time. Mahmudul Islam alias Ratan vs State 53 DLR (AD) 1. Section 5-Mere relationship by itself cannot be a ground for rejecting testimony of a witness unless it is shown that the witness was biased and resorted to falsehood. Nure Alam vs State 54 DLR 242. Section 5-There is no reason to hold that the defence has been prejudiced for non-examination of the investigation officer, although non- examination of the investigation officer in a cri- minal case is usually viewed with disapproval. Karam Ali vs State 54 DLR 378. Section 5- Non-examination of independent witnesses, particularly some of the neighbours, raised a presumption against the prosecution to the effect that had they been examined, they would not have supported the prosecution case. Nepoleon Khondker alias Lepu vs State 54 DLR 386. Section 5- In the context of the existing enmity between the parties, it is wholly unsafe to rely on the uncorroborated testimony of infor- mant. Altaf Hossain vs State 54 DLR 464. Section 5-A close relative who is a material witness cannot be regarded as an interested witness. The term "interestedness" postulates that the witness must have some direct interest in having the accused somehow or the other connec- ted for some animus or some other reasons. State vs Moslem 55 DLR 116. Section 5-If on consideration of the entire evidence and materials on record it appears to the Court that the prosecution case is doubtful, the benefit of doubt must be given to the accused and he should be acquitted of the offence charged. Shahidul Islam vs State 56 DLR 35. Section 5-Discrepancy has to be distin- guished from contradiction. Whereas contradic- tion in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution case doubtful. Shibu Pada Acharjee vs State 56 DLR 285. Section 5-The evidence of an injured person carries much weight since the injured person does not usually allow the real culprit to escape and falsely implicate an innocent person. Ataur Rahman vs State 43 DLR 87. Section 5- Defence version-Manner of occurrence-prosecution having failed to prove their version of the manner of occurrence, the defence version became probable and the appe- llants were acquitted of he charges. Gopal Rajgor vs State 42 DLR 446. Section 5- Assessment of evidence by the Appellate Division-In the matter of assessment of evidence trial Court's view is given great weight and when its finding is accepted as correct on reassessment by the Appellate Court, then the Appellate Division does not like to interfere. But when in accepting the evidence it is found that established principles of assessment of evidence have not been followed, then the Appellate Court's finding cannot claim sanctity (per Shahabuddin Ahmed CJ concurred by MΗ Rahman and ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253. Section 5-Appreciation of evidence-if there is contradiction of a substantial kind or a big difference as to time as given by witness and proved by other circumstances, then the time as to the occurrence may become doubtful and the Court can disbelieve the prosecution case. The opinion of the doctor has been so narrowly construed as would betray even ordinary common sense. Considering all aspects of the matter, there has been a manifest disregard of the accepted principles of appreciation of evidence and conse- quently a miscarriage of justice. State vs Abdus Sattar 43 DLR (AD) 44. Section 5- In the matter of observation, perception and memorisation, different witnesses, differ from each other. So weight is to be given to those which are of consensus as to the substance of their evidence. The standard of rural witness should not be comparable to that of urban witness in the matter of exactitude and consistency. Consi- deration in narration can not militate against the veracity of the core of testimony provided that there is an impression of truth and conformity in substantial fabric of the testimony so delivered. Ataur Rahman vs State 43 DLR 87. Section 5-It is settled principle that when injured witness marked assailants it cannot be said that he would give up real assailant and falsely implicate person with whom there was no enmity. Ataur Rahman vs State 43 DLR 87. Section 5- Chance witness-He is found to be at the place of occurrence by chance or coinci- dence at the time the offence was committed. His evidence need not be rejected outright, but it is to be weighed with caution and may be viewed With suspicion if witnesses are partisan or inimically disposed towards the accused. State vs Md Shafiqul Islam 43 DLR (AD) 92. Section 5-Wife-killing case-In such a case, there could be no eye-witness of the occurrence, apart from inmates of the house who may refuse to tell the truth. The neighbours may not also come forward to depose. The prosecution is, therefore, necessarily to rely on circumstantial evidence. State vs Md Shafiqul Islam 43 DLR (AD) 92. Section 5- Evidence of persons falling in the category of interested witnesses must be closely scrutinised. They should not be accepted on their face value. Their evidence cannot be rejected outright simply because they are interested wit- nesses. Nowabul Alam vs State 45 DLR (AD) 140 Section 5-It is well-settled that the prosecution case is never proved by suggestions made by the defence to prosecution witnesses. The Court cannot accept what is favourable to the prosecution and ignore the true purpose of suggesstion: Per Mustafa Kamal J writing the majority Judgment. Nowabul Alam vs State 45 DLR (AD) 140. Section 5-When discrepancies in testimony were mere discrepancies, and not contradictions, they did not affect the truth of what was stated in Court. State vs Ranjit Kumar Pramanik 45 DLR 660. Section 5- Demeanour of witnesses-The observation of the demeanour of witness by the trial Court is not dismissed lightly by the Appe- llate Court, unless there are intrinsic weaknesses and blatant contradictions in his evidence. Abdul Hai Sikder vs State 43 DLR (AD) 95. Section 5-Credibility of witness-Judges of the High Court Division have not considered the material discrepancies, contradictions and omi- ssions of eye-witnesses for which an error has crept in the judgment resulting in the conviction of the appellants. On consideration of the evi- dence particularly of the eye-witnesses, the appellants are held to be entitled to the benefit of doubt and acquitted. Nurul Islam vs State 43 DLR (AD) 6. Section 5- Interested witness-Conviction cannot be based on the uncorroborated testimony of the informant who is a police officer and is vitally interested in the result of the case. Mati Miah vs State 44 DLR 554. Section 5- Demeanour of witness, apprecia- tion of when a finding of fact is based upon the credibility of evidence involving appreciation of the demeanour of witnesses, the view of the trial Court is entitled to great weight. State vs MM Rafiqul Hyder 45 DLR (AD) 13. Section 5-PWs 8 and 9 categorically stated that they heard of the occurrence from the victims who disclosed the names of accused Habib and Ripon but they did not disclose the names to investigation officer-Their belated disclosure of the names of accused is nothing but subsequent embellishment and, as such, the same cannot be relied. Shaheen (Md) vs State 59 DLR 23. Section 5-When PWs do not give the whole truth-We find no corroboration in the evidence of the PWs by any reliable and independent source. As a result, an element of doubt looms large and leads to the inevitable impression that the prosecution did not give out the whole truth for unknown reasons. In the face of the clear and definite evidence on record it is impossible to con- clude with any amount of certainty that the death of Abdur Rahman was caused by appellant Abdul Hannan. Abdul Hannan vs State 60 DLR 590. Section 6-Statement made by the victim of an offence, when it can have evidentiary value- In the absence of examination of the alleged of victim, her statements allegedly made to the police or to the Magistrate cannot be treated as evidence against the accused. As neither the victim girl nor the Magistrate was examined, the statements recorded by the latter is not even a secondary evidence and in that view it is no legal evidence to prove the prosecution case. Abul Kashem vs State 43 DLR 420. 6: Rape-Statement made by the victim some time after the crime not relevant-In a trial on a charge of rape, this victim's statement made some time after the crime does not form part of the same transaction and is not a relevant fact under section 6 of the Evidence Act, according to which only facts so connected with a fact in issue as to form part of the same transaction are relevant 1950 PLD(Lah) 189 S. 6, Illus.(a): Relevant fact-Witness stating that he heard bystanders saying that the accused had murdered the deceased-But the witness did not state who were those bystanders present at the spot. Held: Such a statement is not legal evidence to establish the charge of murder. The State V. Bakhmir, (1970) 22 DLR (WP) 27. Section-6 Unregistered deed of gift—the plaintiffs case was that the suit property was originally belonged to Abdul Wahab Howlader. The said Abdul Wahab Howlader executed a deed of gift in favour of the plaintiffs on 27.7.64 and delivered the possession but the said deed could not be registered due to certain difficulties. The defendants claimed the title over the suit land as a residuary sharer. Hence the plaintiff filed the title suit for declaration of title in respect of suit land—the learned trial court in consideration of oral and documentary evidence and materials on record decreed the suit. Against the said decree the defendants preferred appeal. Learned Appellate Court allowed the appeal by reversing the decree of the trial court—Held: That the plaintiffs, being in exclusive possession over the statutory period of limitation from the date of institution of the suit by the plaintiffs in the year 1984 and to the complete ouster of the defendants for about 20 years from the suit property have acquired a valid title even on the basis of the defective deed -of gift being an unregistered one. It further appears that the defendant could neither challenge the said unregistered deed Ext. I nor file any suit to establish their alleged right in the suit property within the statutory period of 12 year and it is further held that the defect of the plaintiffs deed of gift has been cured with the passage of time and the plaintiffs imperfect title has been perfected by the said period. Amirunnessa & Ors Vs. Abdul Mannan Howlader & Ors. 3BLT (HCD)-245 Section -6 Document—Plaintiff instituted the suit for declaration of title and also for a declaration that the suit property cannot be treated as vested and non-resident property (Enemy Property) alleging, inter alia that one Jagat Chandra Karmaker was the C. S. recorded owner of the suit property. After his death his son Gopal Karmaker inherited the said property. This Gopal Karmaker transferred the suit property to one Harendra Lal Saha and Jagannath Saha. After the death of Harendra Lal Saha his property was inherited by his two sons Chandi Gopal Saha and Ashutosh Saha. One Parveen Akter purchased the suit property by registered deeds from Chandi Gopal Saha, Ashutosh Saha and Jagannath Saha. From this Parveen Akhter plaintiff- appellants had purchased the suit property while the plaintiffs were possessing the suit land, they came to know that the property in question was declared as vested and nonresident property—learned Subordinate Judge dismissing the suit holding that the plaintiffs failed to produce any document to show the transfer in between Gopal Karmaker and Harendra Lal Saha and others—Held: The averments made in the plaint and the evidence of P.W.I together with the written statements of defendant No. 2 and the evidence of P.W. I it clearly appears that Harendra Lal Saha and others became the owners of the suit property and they possessed the same and sold the same to Mrs. Parveen Akhter by registered sale deeds in 1981—the rent receipts together with the continuous record as right vide exhibits I series may be treated as collateral evidence of title in favour of the plaintiff. Now, if we consider the oral as well as documentary evidence as stated above, we find that this Harendra Lal Saha and others acquired right and title over the suit property. The documents by which the heirs Harendra Lal and Jagannath transferred the suit land to Parveen Akhter and the registered document by which Parveen Akhter transferred the land to the present plaintiffs are not disputed at all. So it is held that the learned Subordinate Judge failed to consider the material evidence or record as stated above and he has arrived at a wrong finding and as such it cannot be sustained. Md. Amjad Hossain & Ors. Vs. Upazilla Nirbahi Officer Savar & Ors. 3BLT (HCD)-163 Section—7 Admission— Value of admission made in the plaint of a previous suit which was withdrawn — In our law of evidence an admission made by a party in a plaint is admissible as evidence against him in other actions as well but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. Abdul Kader Khan being dead his heirs All Akbar Khan and others Vs. Basek Khan being dead his heirs Shaju Bia and others; 8BLD(AD)22 Ref. A.I.R. 1967 (SC) 341; AiR. 1968 (Cal)550; (1952) 1 Macq 212: 8DLR3I I Cited. n 8-Motive-If the prosecution assigns a particular motive in proof of its case, then the motive has to be established by the prosecution failing which the prosecution must suffer on that account, not the defence. Khelu Mia vs State 43 DLR 573. Section 8-Motive-Prosecution is not obliged to suggest any motive where there is direct evidence but in a case which depends on circumstantial evidence motive is an important factor. If motive is suggested in any case by the prosecution, it accepts the burden to discharge for making the suggested motive plausible one. Farid Karim vs State 45 DLR 171. Section 8-Motive is not always necessary to prove murder, but if it was established, it would be a corroborative circumstance leading to compli- city of the accused in the offence. State vs Nurul Hoque 45 DLR 306. Section 8 Murder charge resting on circumstantial evidence-Accused's motive in calling out and accompanying the victim boy- There is absolutely no material on record to show that anybody had at any stage expressed any sus- picion that the accused might have had any evil motive in calling out the victim. All that the father said at the trial was that the motive for murder was to give him pain. This is no motive. He did not say why the young accused would cause him pain. There is also no material to suggest even that there might have been some immediate and on-the-spot reason for the accused to cause violence to the victim or that they were acting at some others' behest-Per ATM Afzal J with whom Shahabu- ddin Ahmed CJ and MH Rahman J concurred. State vs Khasru @Syed Mostafa Hossain 43 DLR (AD) 182. Section 8-Abscondance guilty mind- it is true mere abscondance is not sufficient to hold the accused guilty. But in this case his wife was in his house and her body was recovered from the nearby jute field. He neither informed her parents nor brought the matter to the notice of the police he simply vanished from his house and remained absconding for months. From these circumstances there can be no other hypothesis except that of his guilt. Abdul Khaleque vs State 45 DLR 75. Section 8-Motive-Failure to prove motive does not always affect prosecution case. State vs Ranjit Kumar Pramanik 45 DLR 660. Section 8-Abscondance-Abscondance by itself was not conclusive either of guilt or of guilty conscience. State vs Ranjit Kumar Pramanik 45 DLR 660. Section 8-Abscondance Corroboration of evidence-Abscondance of an accused though can be treated as corroboration of the direct evidence of eye-witnesses connecting the accused with the crime but the abscondance cannot be treated to be corroboration of the confessional statement of another accused so as to base thereon the conviction of the absconding accused. Sanwar Hossain vs State 45 DLR 489. Section 8-Prosecution is not generally required to prove any motive behind a crime. But if some motive is assigned, the prosecution needs to prove it. Gadu Mia vs State 44 DLR 246. Section 8-Motive for murder-Though motive is one of the important factors for a murder, prosecution is not always bound to allege motive, and if alleged, need not prove it and for the absence of motive or proof thereof the prose- cution will not fail, if the guilt of the "accused is otherwise proved by reliable and cogent evidence. Taslimuddin vs State 44 DLR 136. Section 8- Motive (by majority): Evidence of motive, when necessary there is no reference at all in the dying declaration to any fact or circumstances for which it can be even remotely inferred that there was any reason whatever for which the appellant was likely to make an attempt on the life of the deceased nor is there any reason for the deceased to suspect the appellant as his possible killer. In a case of this nature based only upon the dying declaration there should have been some evidence of motive although motive may not be proved in case of direct evidence or as an ingredient of the offence. Sk Shamsur Rahman vs State 42 DLR (AD) 200. Section 8-Mere abscondance for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shah- jahan vs State 46 DLR 575. Section 8-In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali vs State 49 DLR 163. Section 8-As the condemned accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8-Motive is not imperative in every case of murder and even if motive is not estab- lished that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8- Abscondance Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. Section 8-The deceptive conduct of accused petitioner to turn into a fugitive by jum- ping the bail is a clear indication of his guilty conscience. Babar Hossain vs State 52 DLR 326. Section 8-In view of the evidence as to motive of the condemned prisoner, his previous attempt to assault the victim, comes within the purview of section 8 of the Evidence Act and this said conduct is relevant for determination of the issue of the case. State vs Md Khosbar Ali 52 DLR 633. Section 8-Unless the Court is told what exact words were used by the accused persons it cannot act on the inference supplied by the witne- sses from what they have heard or not heard. Abul Khair vs State 55 DLR 437. Section 8- Accused remained absconding with clear guilty knowledge about his overt act in the occurrence resulting in the murder and, as such, his absconsion will create adverse opinion against him. Zakir Hossain vs State 55 DLR 137, Section 8-Abscondence by itself does no prove any offence against any person unless such abscondence is substantiated by evidence in favour of his guilt incompatible with his plea o innocence. Zahid Hossain @ Paltu vs State 5 DLR 160. Section 8- Abscondence of the condemned prisoner furnished strong corroboration to prosecution case that he is the culprit. State vs Moslem 55 DLR 116. Section 8-Absconsion itself is not an incriminating matter inasmuch as even an inno- cent person implicated in a serious crime sometimes absconds during the investigation to avoid repression by the police. Abul Kashem vs State 56 DLR 132. Section 8-Abscondence sometimes may not be an incriminating circumstance for drawing inference of the guilt of an accused person but, in the case in hand, long abscondence of the accused-appellant is an important circumstance to fasten him. Babul Sikder vs State represented by the DC 56 DLR 174. Section 8-Motive-Motive, if proved, affords a key to scan the evidences of the case in its proper perspective and motive proved indicates the high degree of probability and provides a link in the chain to connect the accused with the offence. State vs Abdul Hatem 56 DLR 431. Section 8-For lack of motive, the ocular evidence of injured witnesses and other eye- witnesses should not be discarded, specially in view of the fact that their evidence has not at all been shaken in the cross-examination. Ershad Ali Sikder vs State 57 DLR (AD) 75. Section 8-The Court does not, subscribe to the view of the learned Counsel that for every offence the prosecution must prove the motive if otherwise there is reason to believe as to the guilt of the accused. State vs Kh. Zillul Bari 57 DLR (AD) 129. Section 8- Abscondence Abscondence of an accused leads to no decisive implication, nevertheless, it has utility to form a link to concatenate the full chain in finding guilt of an accused person. Kazi Mahbubuddin Ahmed alias Mahbub vs State 57 DLR 513. Section 8-The failure to discover the motive of an offence does not signify its non- existence. The failure to prove motive is not fatal as a matter of law, proof of motive is never indispensable for conviction when facts are clear, it is immaterial that no motive has been proved. Khalilur Rahman vs State 59 DLR 227. Section 8-Abscondence This itself cannot be the sole criteria to reach a finality of guilt. It is only corroborative in nature-Some- thing more together may merit conviction-It is a fit case where the appellants are entitled to have benefit of doubt. Jaju vs State 59 DLR 499. Section 8-It is well settled that abscon- dence of an accused is not conclusive proof of his guilt and cannot be the sole basis of his conviction without any corroborative evidence. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653. Section 8-Where the testimony of the witnesses are mere hearsay, the case, becomes one of no evidence against the appellant. The appe- llant cannot be convicted merely on hearsay evidence as the hearsay evidence has no basis and thus the Court of law cannot rely on the hearsay evidence. Abdul Kader vs State 60 DLR 457. Section 8-Failure to prove motive does not necessarily affect the prosecution case. Bablu vs State 60 DLR 583. Sections 8 and 9-Abscondence of an accused person in some circumstances may not be an incriminating circumstance against him in respect of his guilt but long abscondence is an important circumstance against him and furnishes corroboration of the prosecution case. State vs Saiful Islam 56 DLR 376. Sections 8 and 106-It was not denied by the appellant that victim Shefali was his wife and living with him in the same house just before her alleged missing. If that be so, he is under the obli- gation to explain what has happened to Shefali who was with him before her missing. Abdul Majid vs State 55 DLR 486. Section 8(j)- Prosecution for rape-Ques- tion of corroboration. It has long been a rule of practice for insisting on corroboration of the statement of the prosecutrix. If the Judge feels that without corroboration in a particular case the conviction can be sustained then he should give indication that he had the rule of caution in his mind and then should proceed to give reasons for considering it unnecessary to require corrobo- ration and for considering that it was safe to convict the accused without corroboration. Saidur Rahman Neuton vs State 45 DLR (AD) 66. Sections 8 & 9-Nowhere the accused mentioned anything why he avoided trial and remained in abscondance in spite of execution of Proclamation and Attachment and Warrant of Arrest for securing his attendance. This conduct of the accused is a relevant fact which should be taken into consideration as a circumstance in determining his guilt. Rajab Ali Zulfiqar vs State 45 DLR 705. Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. Evidence Act, 1872 Section 8 –Ascension by itself is not an evidence of guilt of an accused Code of Criminal Procedure, 1898 Section 164 – Confessional statement of accused recorded after being produced from prolonged police custody held inadmissible as being not true and voluntary Penal Code, 1860 Section 396 – Offence of dacoity – Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266. Section 8— Mere abscondence for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shahjahan vs State 46 DLR 575. Section 8— In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali and other vs State 49 DLR 163 Section—8 Non-payment of rent whether relevant —Non-payment of rent alone will not extinguish or disprove a tenancy but when it is a question of the very existence of the status of a tenant, payment of rent would be relevant as the subsequent of the parties concerned. Sahabuddin Vs. Saluddin Talukder and others; 4BLD (HCD) 291 Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. S. 8-It is true that statement made in presence of an accused person even upon an occasion which should be excepted reasonably to call for some explanation or denial for him is not evidence against him of the facts stated, save so far as he accepts the statement so as to make it in effect his own. But the acceptance of the statements may be either by word or by conduct or action or demeanour. Md. Yusuf Vs. Crown (1955)7 DLR 302 (313 r. hand cl. bottom).. -Statement unconnected with the accused's conduct not admissible. Statement of an accused person cannot be admit ted under section 8 when they are unconnected with any conduct of the accused. Mere statements are not such evidence as may be admissible under section 8. Jagannath Biswas Vs. State (1957)9 DLR 508. -Illustration () says that if a woman without making a complaint and without wishing some ac- tion to be taken merely states that she has been ravished, that statement is not relevant under section 8, though it may be relevant under section 157, Evidence Act, 1950 PLD (Lah.) 189. Ss. 8 & 9 Hearsay evidence Statement of Keramat Ali is relevant and admissible u/s 8 of the Evidence Act showing accused's conduct which is influenced by the fact in issue. S.M. Qamruzzaman Vs. State (1981) 33 DLR 156 Where evidence not struck down as hearsay evidence but referred to as it afforded evidence of the accused's conduct immediately after the occurrence and as such furnishes support to prosecution case. SM. Qamruzzaman Vs. State. (1981) 33 DLR 156. Factum of a statement and truth of at statement. (A distinction has always been made between factum and the truth of a statement, the object of the evidence is to recount certain statements made by another person necessary to introduce relevant facts or fact in issue which should otherwise be inadmissible as hearsay if the object is to prove the truth of those statements. There should be no objection in receiving them). S.M. Qamruzza man Vs. State (1981) 33 DLR 156. -Dagger brought out by the accused from the place of concealment is admissible in evidence u/s. 8 of the Evidence Act. Khasru Vs. State (1983) 35 DLR 119. -If the accused does not say anything but takes the police or the witnesses to a place and points out the spot from where incriminating object brought out-Such a matter admissible u/s 8 as an act or conduct. Bachchu Vs. State (1983) 35 DLR 170. When motive is important-Motive is some- times important as evidencing a state of mind which is a material element in the offence charged. Nausher Ali Vs. State. (1987) 39 DLR(AD) 194 Ss.8, 9-Evidence-Relevant evidence Absconding immediately after the murder and remaining in hiding for a long time are relevant facts that the accused was concerned in the murder. Section 8 read with section 9 of the Evidence Act makes this fact that accused Mobarak remained absconding after the commission of the crime for more than a year a relevant fact and in the absence of plausible explanation such circumstance along with the aforesaid and other circumstances indicate that he was concerned in the murder. Mobarak Hossain Vs. State, (1981) 33 DLR 274. Section—8 Abscondence of the accused—Abscondence of the accused during the trial may be a circumstance for giving rise to an adverse presumption against him and but it can never be the sole basis of conviction. The court acted illegally in putting the burden of disproving the charge upon the accused person. Abdus Salam Vs. The State, 14 BLD (HCD) 99 Section—8 It is a settled principle of law that an accused is not supposed to prove or disprove anything and the onus lies on the prosecution to prove its case. The learned Special Judge was wrong in convicting the appellant simply on the ground that he was absconding and did not appear to face the trial or to refute the charges Md. Jamsed Ahmed Vs. The State, 14 BLD (HCD)301 S. 8: Explanation 2. Silence of accused when statement incriminating him is made before him. The accused remained silent, while the 3rd accused incriminating the other two in the commission of the offence. The silence of the two accused persons is a matter admissible under section 8 of the Evidence Act. Haji Yar Md. Vs. Rahim Dinu (1961) 13 DLR(WP) 58. Section 8— Mere abscondence for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shahjahan vs State 46 DLR 575. Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467. Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590. Section 8- The proof of motive helps the Court in coming to a correct conclusion when there is no eye witness of the occurrence. Since P.W.1 claimed that the appellant was not previously known to him and, after his arrest, he came to know him for the first time, the motive of killing as stated by the appellant in confessional statement was not true. We do not find any other motive of killing the victim by the appellant in the testimonies of the prosecution witnesses. It is true that the failure to establish the motive for the crime does not throw over-board the entire prosecution case but it casts a duty on the Court to scrutinize other evidence with greater care since motive moves a man to do a particular act and the same is relevant fact behind a crime.... Humayun Kabir (Md.) VS The State, [10 LM (AD) 619] Section 8-Unexplained continuous abscondence of the accused-Ambassador during the trial of the case is a relevant fact under section 8 of the Act and favours the prosecution pointing a finger at his guilt. ATM Nazimullah Chowdhury vs State, 65 DLR 500 Section 8-Abscondence-Abscondence itself is not the conclusive proof of guilt of the accused in absence of legal evidence. Only because of abscondence accused could not held responsible for committing the offence. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386 Section 8-Normally, there is a motive behind every criminal act that is why the court while examining the complicity of an accused tries to ascertain as to what was the motive on the part of the accused to commit the crime in question. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 8-Absconsion of the accused itself is not an incriminating material against an accused inasmuch as even an innocent person implicated in a serious crime sometimes absconds during the investigation to avoid repression by the police. State vs Jashim Uddin alias Iqbal, 70 DLR 211 Sections 8 and 9-Soon after the occurrence convict Jashim had fled away and remained absconding during the trial and trial was held in his absentia. Such abscondence of the accused is an incriminating circumstances connecting them in the offence and conduct of a person in aboscondence after commission of crime is an evidence to show that they are concerned in the offence. Absondence of accused is a relevant fact under section 9 of the Act and unless accused explains his conduct, absondence may indicate guilt of the accused. State vs Jashim Uddin alias Iqbal, 70 DLR 211 Sections 8 and 106-Facts are especially within the knowledge of accused Rahman and the burden cast on him to rebut the allegation made against him. Having regarded to the fact that accused Rahman knowingfully well about the trial absconded and avoided the trial willfully and thereby, failed to discharge his burden in view of the provision of section 106 of the Act. And thus, it can be validly inferred that he is guilty of offence of 'money laundering'. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500 Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154 Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154 Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154 Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154 S. 9-Evidence in the T. I. parade before the police-When admissible. When a witness has given details of the commission of a crime and of the persons engaged in committing it, the act of the police-officer in subsequently asking the witness to point out those per- sons from amongst others who are mixed up with them cannot be objected to. The evidence of the result of such test may be rightly given under section 9 of the Evidence Act in proof of the identity of the accused as the doer of a certain act, without contravening the provisions of section 162 of the Code of Criminal Procedure. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (136 Lh.col). S. 9-Please see s. 8 of Evidence Act in the Matter of Mobaraque Hossain Vs. State (1981) 33 DLR 274. Section 9 read with Code of Criminal Procedure (V of 1898). S.288 [omitted by Ordinance XLIX of 1978]-Two ways of making the previous recognition of the accused admissible in evidence. Rules stated in AIR 1925 (All) 223 have been relied on by the State (Respondent). Ratan Kha Vs. The State (1988) 40 DLR 186. Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154 Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154 Section 9-Long abscondance and non- submission to the process of the Court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Absco- ndance of the accused persons furnished corrobo- ration of the prosecution case and evidence. AlAmin and 5 others vs State 51 DLR 154. Section 9-The nonholding of the Test Identification Parade cannot affect the identifi- cation of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. AlAmin vs State 51 DLR 154. Section 9- It was the duty of appellant to follow the position of the case. No duty was cast upon Tribunal to run after a fugitive to post him with day-to-day proceeding against him. Nizam Hazari vs State 53 DLR 475. Section 9-Abscondence of accused is a relevant fact under section 9 of the Evidence Act and unless accused explains his conduct abscon- dence may indicate his guilt. Nizam Hazari vs State 53 DLR 475. Section 9-Abscondence of an accused cannot be treated to be corroboration of the confe- ssional statement of another accused person so as to base thereon conviction of the absconding accused. Nizam Hazari vs State 53 DLR 475. Section 9-It is the facts and circumstances of the case which decides whether abscondence is due to any guilty knowledge or to any intention to avoid harassment by police. Nizam Hazari vs State 53 DLR 475. Section 9-T1 Parade The credibility of Test Identification Parade is dependable upon 3 conditions, firstly, the accused should be unknown to the identifying witness by name, secondly, the witness must not have any opportunity to see the accused after the occurrence in connection with which he is put up for identification and thirdly, the identifying witness makes no mistake to recognise the offender. Ibrahim vs State 58 DLR 598. Section 10- Fixing the period of conspi- racy is important as the provisions of section 10 of the Act would apply only during the existence of the conspiracy. (Per SK Sinha J). Major Bazlul Huda vs State 62 DLR (AD) 1. Section 10- Common Intention-When a criminal conspiracy for committing murder has been established there is no need to award a conviction in the aid of section 34 for, in an offence of criminal conspiracy anything said, done or written in reference to their common intention after the intention was entertained is relevant against all the accused. When specific acts done by each of the accused have been established showing their common intention they are admissible against each and every other accused. Though an act or action of one accused cannot be used as evidence against other accused but an exception has been carved out in section 10 of the Evidence Act in case of criminal conspi- racy. If there is reasonable ground to believe that two or more persons have conspired together in the light of the language used in 120A of the Penal Code, the evidence of acts done by one of the accused can be used against the other. Major Bazlul Huda vs State 62 DLR (AD) 1. Section 10- 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 10-When more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other of such persons as well as against the person who makes such confession. Milon vs State (Criminal) 75 DLR (AD) 164 Section 10-Conspiracy is done in secret. It is not possible to prove conspiracy by direct evidence. It has to be proved by circumstantial evidences. State vs Zalal @ Zillu., 66 DLR 167 Section 10-Bazlu made the confessional statement after his arrest and that too after the alleged criminal conspiracy culminated with the killing of deceased. So, the confessional statement of accused-Bazlu cannot be used as evidence against Mobile Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 10-Section 10 of the Act cannot be so widely construed so as to include a statement made by a person in reference to past acts done in actual course of carrying out conspiracy after it was completed. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 S. 10-Pre-existing conspiracy must first be established by prima facie evidence in order to at- tract the provisions of this section-Such evidence must be apart from any act or statement of co- conspirator sought to be used as evidence. Moqbool Hussain Vs. State (1960) 12 DLR (SC) 217. Section 11-Alibi' It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513. S. 13-Admission into evidence of judgments passed subsequent to the matter under investigation-Not admissible. The provisions of section 13 of the Evidence Act cannot be invoked for purposes of admitting into evidence judgments and orders made subsequent to the date of the incident or to the matter under investigation. Dud Raja Vs. State (1956) 8 DLR 667. -Statement or findings in a judgment-Not admissible. Even if previous judgments and order be admit- ted into evidence under section 13 of the Evidence Act in order to prove that there was litigation which terminated in a certain way, there is no authority upon which the admission of statements or recitals or findings contained in such judgments can be justified. Dud Raja Vs. State (1956)8 DLR 667. Section 13- An admission of a person is admissible in evidence as against him, though it can be explained away by the maker thereof or the person against whom it is sought to be proved. According to me, the same principle applies to an admission in a signed pleading, or in affidavit, or in any sworn deposition given by a party in a prior litigation, though it is capable of rebuttal. The assertion of a right, whether in a pleadings or other statements, is relevant under section 13 of the Evidence Act and is, therefore, legally admissible in evidence. An admission contained in a plaint or written statement or an affidavit or any sworn deposition given by a party in a prior litigation will be regarded as an admission in a subsequent action, though it is capable of rebuttal. ...Alimuzzaman (Reza) (Md.) VS Masudar Rahman(Md.) @Babul, [8 LM (AD) 164] Section 13, 41, 43 The law is now settled that a judgment whether inter parties or not may be conclusive evidence against all persons of its existence date and legal effect, as distinguished from the accuracy of the decision rendered. Alauddin Mia and another Vs. Abdul Latif 9 DLR. 357. Malik Din and another Vs. Mohmmmad Aslam 21. DLR. 95.41 DLR (Ad) 1997. Robert Pinaru vs Moulana Hahibur Rahman (Md. Ruhul Arnin, J) (Civil) I ADC 421 Section—13 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint and other steps taken in connection therewith is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD (AD)135 Ref. 21 DLR(SC)94; 2 C.W.N. 501; 58 Indian Appeals 125; A.I.R.1937(PC)69— Cited. An admission of a person is admissible in evidence as against him, though it can be explained away by the maker thereof or the person against whom it is sought to be proved. According to me, the same principle applies to an admission in a signed pleading, or in affidavit, or in any sworn deposition given by a party in a prior litigation, though it is capable of rebuttal. The assertion of a right, whether in a pleadings or other statements, is relevant under section 13 of the Evidence Act and is, therefore, legally admissible in evidence. Md. Alimuzzaman vs. Md. Masudar Rahman (S.K. Sinha J) (Civil) 8 ADC 392 S. 15-Evidence of similar criminal acts of the accused in other cases- Evidence admissible only if relevant. The accused was tried for murdering his wife A. The jury found him guilty and he was sentenced to death. Evidence under section 15 was admitted at the trial on the ground that it tended to show that the ac- cused has murdered another woman, his wife, G. It was contended that the circumstances attending the two deaths made the evidence concerning the earlier of them relevant to the charge.. Held: In a case of this character, two principles were laid down: The first was 'that it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been guilty of criminal acts other than those covered by the indictment. The second principle was that the mere fact that the evidence adduced tends to show the commission of other crimes does not render it admissible if it be relevant to an issue before the jury. And it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defence which would otherwise be open to the accused. Nur Mohd. Vs. King (1949) I DLR(PC) 121. It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, S.M.K. Alvi Vs. Crown(1953)5 DLR(FC) 161(177 rt.h.col.). -Evidence showing commission of other crimes-Not inadmissible if it is a relevant issue. S.M.K. Alvi Vs. Crown (1953)5 DLR (FC) 161 (177 rth.col.). In a particular case it may appear that the facts and circumstances of the particular offence charged are consistent with innocent intention, whereas further evidence, which incidentally shows that the accused has committed one or more other of- fences, may tend to prove that they are consistent only with a guilty intent. In all such cases, the Judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial. If so far as that purpose is concerned, it can in the circumstances of the case, have only trifling weight, the Judge will be right to exclude it. To say this is not to confuse weight with admissibility. The dis- tinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the Judge. Nur Md. V. King (1949) I DLR (PC) 121 Ss 15, 17 & 21 Evidence of criminal act to lead to the conclusion that the accused is the sort of man likely to commit the offence charged not admissible. S.M.K. Alvi Vs Crown (1953) 5 DLR (FC) 161 (177) rth.col.) The mere fact that the evidence adduced tends 10 show the commission of other crime does not render it inadmissible if it be relevant to an issue be- fore the jury and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime were designed or accidental or to rebut a defence which would otherwise be open to the accused, S.M.K. Alvi Vs Crown (1953) S DLR (FC) 161 (177 rt. h. col.). -Evidence of instances of similar unconnected transactions with other persons before and after the date of the offence charged, is admissible not to establish the factum of the offence but to prove that the transaction in issue was one of a systematic series of frauds and that the intention of the accused on the particular occasion in question was dishonest and fraudulent. Evidence of such other acts, whether previous or subsequent to the frauds charged against the accused, is relevant for the purpose of showing whether or not the intention of the accused was honest or fraudulent. M.FN. Rewail Vs. State (1956) 8 DLR 569. -Evidence merely to prove that the accused's character is such that he is likely to commit the act with which he is charged is not admissible and can- not be considered. M.F.N. Rewail Vs. State (1956)) 8 DLR 569 -An act whether accidental or intentional- principle as to when provisions underlying section 15 to be applied-Expounded. In the absence of any evidence of any conspiracy or any design to follow a particular mode of operation it cannot be said that the evidence of other acts performed in more or less similar circumstances be- comes relevant to establish a code or pattern of con- duct. It has to be remembered that the principle upon which evidence of similar acts may be admitted un- der section 15 of the Evidence Act is, that it is to be admitted merely to prove a person's state of mind but not to prove either the occurrence of the main fact itself or the identity of its author. Thus where the mental state of a person is not relevant, section IS has no application. Again, this section cannot be invoked in aid until it has been shown that the person charged had committed all the offences. Only when this has been established, does his state of mind become relevant to show that those acts were not committed accidentally or inadvertently but by design in accordance with a preconceived pattern or design. State Vs. Minhun (1964) 16 DLR (SC) 598 Section—17 Statement in writing made by the accused before respectable persons who are not police officers, clearly admitting therein bringing into Bangladesh of a huge quantity of gold without any valid authority though may not amount to confession proper but nonetheless it is a clear admission by the accused of his misdeed under section 17 of the Evidence Act. The trial Court was right in accepting this admission along with other evidences in establishing the guilt of the accused. Md. Shaft Vs. The State, 14BLD (HCD) 322 Ref: 10 DLR(WP)55; 45 DLR(AD) 113—Cited S.17-Accused's letters about the occurrence stating that he acted in self defence-Such letters cannot be used as confession but can be used to show his presence at the occurrence. Golam Ahmed Khan Vs. State (1958) 10 DLR (WP) 55. Silence of the accused when statement incriminating him made. Two accused remained silent, while the 3rd. accused incriminating the other two in the commission of the offence. The silence of the two accused persons is matter admissible under section 8 of the Evidence Act. Haji Yar Md. Vs. Rahim Din, (1961) 13 DLR (WP) 58. -An admission made by an accused person in or out of the Court, unless it be vitiated by any such circumstances as are mentioned in the Evidence Act can be considered to be a matter which the Court may take into consideration in coming to its conclusions. Rahim Bux Vs. Crown (1952) 4 DLR (FC) 53. (M.Munir, J. giving a dissentient view in the same case). Section—20 Admission between the parties made in another proceeding — Such admission whether binds a party in a subsequent proceeding – Respondent’s admission that he was a tenant under the appellant estops him from denying appellant’s title in the suit premises — Admission by way of statements made in documents certified to be true copies by an authorised officer of the Government are admissible in evidence. Hajee Abdus Sattar Vs. Mahiuddin and others; 6BLD (AD) 224 Section—21 Admissibility of previous statement A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his such previous admission, if duly proved is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref: A.I.R. 1946 (Lah) 65 (PB); AIR. l957(AIl) 1(FB); AIR. 1966(SC)402 — Cited. S.21-Document evidencing record of weighment of wood written up by complainant on dictation of accused who was doing the actual weighing. One of the accused was weighing out wood with a spring balance and dictating the reading in respect -Ss. 21 & 24 of each weighment to the complainant to whom the wood had been sold. The record of weight was put in evidence by the prosecution against the accused in a trial on a charge of cheating by deliberately dictating higher figures than the actual of each weighment. On objection being taken that the writing was inadmissible as an admission under section 21, Evidence Act- Held: The writing was not an admission, having been prepared by the complainant on dictation by the accused, and was, therefore, not inadmissible in evidence. 1953 PLD (Bal) 21. Former deposition by party in a previous suit Certified copy of deposition may be placed on record to prove admission under section 21-But to contradict deponent with a view to impeach his cred- it he should be confronted with his previous deposition and be given an opportunity to explain it. 1951 PLD (Pesh) 61. Section—23 Admission made by a party in a letter written “without prejudice” — Admissibility of — The letter written by the appellant cannot be used to determine the extent of its liability, but in so far as it shows the relationship between the appellant and the respondent No. I as debtor and creditor and that they tried to settle the account, the letter can be taken into consideration. M/s. Haque Brothers (Carbide) Ltd. Vs. Bangladesh Shilpa Rin Sangstha and others; 5BLD (AD) 102 Ref. (1967) 72 C.W.N. 1 — Cited. S.24 All ingredients under this section must combine to make a confession irrelevant-The use of the word 'and' in sec. 24 leaves no room for doubt that all ingredients of the section should combine in order to make a confession irrelevant. The presence of one or more ingredients but not of all will not render the confession irrelevant under section 24 of Evidence Act Nazra vs. State. (1960) 12 DLR (WP) 34: 1960 PLD (Lah) 739. -Person in authority-Influence exerted by such person-This section makes it clear that a confession is not made inadmissible sim- ply because it is made in presence of a person in authority. In order to attract the operation of section 24 of the Evidence Act, it must in addition be shown that the person in authority held out to the confessioner some threat, promise or inducement having reference to the charge against him. State vs. Yunus Ali (1961) 13 DLR 665. -Extra-judicial confession ion can be act- ed upon, if true, even if retracted. Extra-judicial confession can be acted upon when it is found to be true and is corroborated in material particulars by independent witnesses and the fact that such confessions is subsequently retracted is immaterial. State vs. Sadek Matbar (1961) 13 DLR 591. -Extra-judicial confessions should be relied upon only when the evidence in their support is in- vulnerable. Haji Yar Muhammed vs. Rahim Dino (1961) 13 DLR(WP) 58: 1960 PLD(Kar) 769 "A person in authority"-Meaning of. Generally speaking a "person in authority" within the meaning of the section is one who is en- gaged in the apprehension, detention or prosecution of the accused or one who is empowered to examine him. State vs. Balashri Das Sutradhor (1961) 13 DLR 289 1962 PLD 467. -Confession must be voluntary and not induced by threat-The rule with regard to the admission of confessions is a rule of law the rule being that a confession can only be admitted if it is voluntary and, therefore, one obtained by threats or promises held out by a person in authority is not to be admitted. Kuruma Vs. Queen (1957) 9 DLR (PC) 336 -Person in authority-Confession to-When can be excluded. Confession of an accused cannot be excluded from evidence merely because it was made before persons in authority unless it is further shown that the confession was the result of inducement, etc.. held out by such person in authority. There is no law which says that an admission made by an accused person in or out of Court, un- less it be vitiated by any such circumstances as are mentioned in the Evidence Act, cannot be considered to be a matter which the Court may take into con- sideration in coming to its conclusion. Rahim Bux Vs. Crown (1952) 4 DLR (FC) 53. S. 24 -Statements under section 164, Cr.P.Code, come under section 24, Evidence Act, and are, there- fore excluded from evidence: Mst. Fazlan Vs. Crown (1956) 8 DLR (FC) 1. -Confessional statement by approver before tender of pardon, recorded under section 161 Cr.P.C. Section 24 not applicable to such a statement. Section 24 has nothing to do with the confession of an approver recorded under section 164 of the Cr.P.C. before a pardon is tendered to him. The maker of the confession in such a case, though an accused when he made the confession is not an accused when the confession is given in evidence but only a witness who gives evidence on oath. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (129 r h.col). -The language of section 24 is wholly inapplicable where the statement of an approver recorded as a confession under section 164 of the Cr.P.C. is given in evidence as the previous statement of a wit- ness and not as a relevant fact against its maker. That section obviously applies to confessional statements which are proved as substantive evidence against their makers and it is not at all in point, where the maker of the confession is not being tried as an accused but gives evidence on oath under the sanction of section 337 of the Cr.P.C. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (129 rt.h.col). -Person in authority-Private person armed with gun-Person in authority-private persons armed with guns sent by police to "find" accused-Confession on inducement of such per- sons-inadmissible. Qutba Vs. Crown (1954) 6 DLR (FC) 126. -Approver's statement admissible un- der section 339(2) Cr.P.C. against him at his own trial after forfeiture of pardon. When an approver is put on his trial, after forfeiture of pardon, for the offence with regard to which he had been granted pardon, his statement in the previous trial of his accomplices is admissible under the previous section 339(2), Cr.P.C., though it would otherwise have been inadmissible because, of section 24, Evidence Act, inasmuch as such a statement was obviously the result of an induceent, viz., tender of pardon, 1955 PLD (Lah) 375. -Police custody, before and after the confession-Not acceptable. The accused had been in custody of the police for long over 24 hours and subsequent to his remand after the recording of his confessional statement, he continued in the said custody of the police, for about 10/12 days. In his statement under section 342 of the Code of Criminal Procedure he complained that he had been tortured by the Police in the lock-up as a result or which he made confessional statement. Held: Such confession cannot be accepted as a voluntary one. Abdus Shukur Vs. State (1964) 16 DLR (Dac.) 148. -Retracted confession-As against the maker thereof requires corroboration. A retracted confession is prima facie a confession which, as to its voluntary character or truth or both, if challenged by its maker, requires independent and reliable evidence to support it before it is accepted or acted upon. Abdus Shukur Vs. State (1964) 16 DLR (Dac) 148. -Retracted confession-The retraction of a confession is wholly immaterial once it is found that it is voluntary as well as true. Hari Pada Debnath Vs: The State. (1967) 19 DLR 574. -In the facts and circumstances of the case and having regard to the nature of the extra-judicial confession we think that the mere inability of a witness to give the exact words of the confession does not make it inadmissible in the evidence or valueless. State Vs. Jatindra Kumar Sutradhar alias Dhana (1968) 20 DLR 526. Section—24 Extra-Judicial confession By its very nature it is a very weak type of evidence. It is unsafe to base conviction of an accused on his extra-judicial confession alone. The value of such confession as evidence depends on the veracity of the witnesses to whom it is made. In a case of such confession material corroboration of evidence of unimpeachable character is required. In the instant case there is no ocular evidence of the occurrence except the testimony of P.W.8 Md. Habibur Rahman who also did not disclose the name of the condemned prisoner to the P.W. 1 informant, or to anybody after the killing or also at the time of lodging the first information report. Although it has been stated by some of the witnesses that condemned prisoner Hasen Ali made extra-judicial confession admitting the killing of the victim the allegation of making the extra- judicial confession has become, uncertain and without any corroboration and as such it is unsafe to base a conviction on the basis of the said extra judicial confession. The State Vs. Hasen All, 19BLD (HCD) 419 Sections—24, 30 Prolonged police custody before recording confessional statement—Prolonged police custody of the confessing accused immediately preceding the making of confession is sufficient, if not properly explained, to make the confession involuntary. A confession to be the basis of conviction must be voluntary and true and it must also be inculpatory in nature. Exculpatory confession is no confession in the eye of law. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD)477 Retracted confession A retracted confession requires independent and reliable corroboration before it is accepted and acted upon. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD) 477 -Ss. 24, 25 & 26 Extra-judicial confession-Can form a basis for conviction if found voluntary and true-This statement was made first of all to Tayeb Ali and Ak- ram Ali before the arrival of the Dafadar and is voluntary and true. Nausher Ali Vs. State (1987) 39 DLR (AD) 194 Surrounding circumstances are ordinarily the only material from which the inference of a confession may be drawn. Nausher Ali Vs State (1987) 39 DLR (AD) 194. Secs. 24 & 25-Accused person in section 24 means the same person accused of any offence in section 25. The phrase 'the accused person' used in section 24 has not a different meaning from a person accused of any offence occurring in section 25. Both phrases mean exactly the same thing. In substance sections 24 and 25 are exactly the same and, therefore, no distinction should be drawn between the two sections with regard to the position of an accused when he makes a confession simply because in one case the word 'relevant' is used and in the other the word 'proved' is used. Section 24 would apply even if the person who is said to have made the confession was not an accused at the time when he made the confession. It is sufficient if ultimately he became an accused with reference to the charge in respect of which he is said to have made the confession. It is quite enough that the confession is subject to the infirmities which are laid down in the section and if it is made by an accused person either at a time when he was an accused person or before he comes to be accused. Nazra Vs. State (1960) 12 DLR (WP) 34 (1960) PLD (Lah) 739. Secs. 24-26. Confession-Admissible when it complies with the provisions of sections 24-26. In order to make a confession admissible, the Judge had to decide whether there exists or does not exist any of the circumstances mentioned in sections 24 to 26 of the Evidence Act. In deciding these questions, the Judge may be said to be also considering the voluntariness of the confession but this is merely for the purpose of deciding as to the admissibility of the confession itself. Asgar Vs. State (1957) 9 DLR 511 Ss. 24-30 Confession is a species of admission-Confession-As to the meaning of confession was noted by Privy Council-Confession- Evaluation of confession The court may take the confession into consideration which can be put into the scale and weighed. State Vs. Lalu Mia, (1987) 39 DLR (AD) 117 Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24— Extra-judicial confes­sions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43. Caution in case of inadmissible evidence of co-prisoners. The difficulty in all cases where more than one person are accused of a crime and when the evidence against one is inadmissible against another is that, however carefully assessors or a jury are directed and however firmly a Judge may steel his mind against one by the evidence admissible only against another, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of another. Wali Md. Vs. King (1951) 3 DLR(PC) 372. -Confession affecting co-accused but affecting the maker only impliedly-Inadmissible against co- accused. 1956 PLD(Lah) 157. -Confession tarring co-accused with same brush as the confessing accused-May be considered against both. 1954 PLD(Lah) 210. -Confession retracted can be used against the maker but is very weak evidence against co-accused. Confession, though retracted, can be used against the maker, if it was made voluntarily. It is generally not considered sufficient to justify the conviction. of a co-accused; but where it stands unrebutted and there is nothing to show that the confessing accused had any reasons for falsely implicating the co-accused and the story related by him fits in with proved facts and is sufficiently corroborated by maternal evidence against the co-accused the retracted confession becomes a strong piece of evidence even against the co-accused. (1950) PLD (Lah) 507 -Confession of co-accused implicating another accused can be taken into consideration as against the latter accused even though the confession was retracted before the committing Magistrate but was again accepted in the Sessions Court. Sarwar and others Vs. The State (1969) 21 DLR(SC) 61. -Judicial Confession, retracted- Accused did not complain of any torture, threat or inducement while making the confession-Evidence on record also corroborate the statement-On a reading of the statement one finds a ring of truth in the samo-The confession, held, is voluntary and true. The State Vs. Lufor Fakir (1972) 24 DLR 217. -Judicial confession-Magistrate recording confessional statement did not tell the accused that he would not be sent back to Police custody- Record shows that the accused made the judicial statement after orders for sending him to judicial custody had been passed within his knowledge- Held: Judicial confession, under circumstances was voluntary. The State Vs. Lutfor Fakir (1972) 24 DLR 217. -Evidentiary value of a retracted confession as against a co-accused. It is also well-settled that the statement of confession of an accused cannot be the foundation of conviction of a co-accused. Its evidentiary value is not much by itself, but it can certainly be taken into consideration to strengthen the other evidence in the case and to lend assurance to the same. To hold that it is of no value at all would be to ignore the provisions of section 30 of the Evidence Act. Ayesha Khatun Vs. The State, (1967) 19 DLR 818. Such confession can only lend assurance to other evidence. Confession of an accused cannot be treated as substantive evidence against another accused but that it can only be used to lend assurance to other evidence. Lutfun Nahar Begum Vs. The State (1975) 27 DLR (AD) 29. Confession by one accused is not a substantive evidence as against another non-confessing accused and cannot be used for conviction of the non- confessing accused. Abdul Malik Vs. State (1984) 36 DLR 275. -A statement made by a co-accused cannot be treated as substantive evidence against other person sufficient to sustain his conviction. Mamud Ali Vs. State (1985) 37 DLR 261. Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24— Extra-judicial confes­sions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43. Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24— Extra-judicial confes­sions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43. Section 24-It is only when the statement of the accused can be read as a plenary admission of guilt in clear terms that it can be taken as a confe- ssion of the crime. State vs MM Rafiqul Hyder 45 DLR (AD) 13. Section 24- Confession should not only be voluntary but it also must be true-For the pur- pose of establishing its truth examination of the confession and its comparison with remaining evi- dence of the prosecution and probability of the case would be relevant. State vs Ali Kibria 43 DLR 512. Section 24- Retracted confession-It is a rule of prudence that a retracted confession needs corroboration inasmuch as it is always open to suspicion and cannot be acted upon unless corro- borated by independent and credible evidence. State vs Ali Kibria 43 DLR 512. Section 24- The statement admittedly made by the appellant while in custody of the Customs officials cannot be considered as evidence and it is barred under section 24 of the Evidence Act. MM Rafiqul Hyder vs State 41 DLR 274. Section 24- Confessional statement-There being no corroboration on any material particular of the confessional statement, it is unsafe to maintain conviction of the respondents under sections 302/34. Penal Code thereon, though respondent Abid Ali implicated himself in the statement to be an offender. State vs Shafique 43 DLR (AD) 203. Section 24-Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381. Section 24- Extra-judicial confessions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque 51 DLR 43. Section 24-A conviction can also be rested on extra-judicial confession subject of course to the fact that such statements are corroborated by other materials on record. State vs Moslem 55 DLR 116. Section 24-Extra-judicial confession-such confession made before a person in authority cannot be relied upon as evidence without any independent corroboration. Mobarak Ali Gazi vs State 55 DLR 325. Section 25-The record of one proceeding is not to be treated as a part of the record of another proceeding and the record of each proceeding should be self-contained and complete. State vs Ershad Ali Sikder 56 DLR 185. Sections 25 & 26-No confession made to a police officer shall be proved as against a person accused of any offence under section 25 of the Evidence Act. The criterion for excluding the confession under this section is the answer to the question, to whom was the confession made? If the answer is that it was made to a police officer, the confession is inadmissible; and cannot be proved either by the evidence of the police officer, or by any other evidence, as the medium by which it is sought to prove an inadmissible confession does not alter its inadmissibility. A confession made to a police officer must be ruled out of evidence even if it was made in the immediate presence of a Magistrate as the terms of section 25 are not qualified or controlled by section 26. Bura Yunus vs State 59 DLR 549. Sections 25 and 27-An information even by way of confession made in police custody which relates to the fact discovered is admissible in evidence against the accused. Police Officer may be allowed to say that he went to the place and found the knife, but any statement as to confession of murder is inadmis- sible. Secondly, a fact already known to the police cannot be re-discovered on the state-ment of an accused so as to make the accused's conduct of pointing out a place admissible in evidence. Thirdly, when a discovery is made in consequence of information received from more than one person, but it cannot be determined who first made the crucial statement, it is no discovery and the joint information or joint production is not admissible against any one. Joint information, however, should not be confused with similar information given simultaneously leading to discovery. Bashir Ali vs State 45 DLR 63. S. 25-Accused in the F.I.R. making a confession-Such confession not admissible. Confessional statement of an accused incorporated in the first information report lodged by him is hit by the provision of this section and as such not admissible against him. State Vs. Shandul (1961) 13 DLR (WP) 62 -Confession to person, in the presence of a police officer, admissible if no influence was exercised. Tabibor Rahman Vs. Crown (1957) 9 DLR 165 See case Nazra Vs. State (1960) 12 DLR (WP) 34. Ss, 25 & 26--This extra-judicial confession does not come under the scope of ss.25 and 26 as it was made before the arrival of the Dafadar. Nausher Ali Vs. State. (1987) 39 DLR (AD) 194. S.26-Accused during the period between his arrest and his confession remaining in police custody for a fortnight-Confession inadmissible, Hazi Yar Mohammad Vs, Rahim Dino (1961) 13 DLR (WP) 58: (1960) PLD (Kar) 769. See case Asgar Vs. State (1957) 9 DLR 511 -Ss. 26 & 27 -A confession in the presence of a chowkidar. A confession made by an accused while in custody of a chowkidar is not admissible in law. A chowkidar is a police officer within the meaning of the term "police officer', in section 26 of the Evidence Act. Crown Vs. Rostom Ali (1955) 7 DLR 209. -Sec case Nausher Ali Vs. State (1987) 39 DLR (AD) 194. -Confession, admissibility of Confession of the accused was made in the Court room at a time when the police officers were present near the prisoner. Held: Such confession is admissible in evidence under section 26 of the Act. In the absence of any evidence to show that there was any attempt on the part of the police or any person in authority to induce or intimidate the prisoner to make the confession, it is admissible. Abul Kashem Vs. The State (1970) 22 DLR 279. S. 26-Confession recorded in the presence of police officer-To what extent inadmissible. Retracted confession, if true and voluntary, is admissible. The mere fact that the Court Constable was allowed to remain present while the co-accused were making their confessions does not involve the total exclusion of the confessions from evidence. It may be said that when Police Officers are present or are within sight and hearing of the place where the accused is kept during the time allowed for reflection or at the time of recording of the confession the possibility of the accused being influenced by threat or gesture from the Police cannot altogether be eliminated. The confession recorded under such circumstances cannot but be viewed with some amount of suspicion that the accused might have been influenced by the Police to make the confession. It is true that a retracted confession should be looked upon with suspicion, but if it is considered by the Court to have been a voluntary confession and substantially true it can be admitted and used against its maker. Jafar Alam Chowdhury Vs. The State (1968) 20 DLR 666. Evidence Act [I of 1872] Section 26 No confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. [2023] 27 ALR (AD) 41 Section 27-The recovery evidence is relevant and can be relied on. The information relates to the facts and discovery on the basis such information is admissible. The possession of such articles with the accused has to be explained by the accused and the burden would be on the accused to explain as to how he came into possession of those articles. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts may be used in evidence against him. Section 27 of the Act permits such information leading to the discovery of a fact to be admitted in evidence. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8 Evidence Act [1 of 1872) Section 27 If a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be allowed to be given in evidence. Since statement under section 27 of the Evidence Act is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act. [2023] 27 ALR (AD) 41 Section 27- It is not the distance by which the place of occurrence is shifted is material but it is the prosecution case which has been different because of shifting of the place of occurrence and this has cast a suspicion on the prosecution case. Abul Kashem vs State 56 DLR 132. Section 27-If after an examination of the whole evidence, the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right. Abul Kashem vs State 56 DLR 132. Section 27-Discovery of the dead bodies in pursuance of the confessional statement-Effect of. The statements of the two condemned priso- ners not only corroborated each other, the disco- very of dead bodies in pursuance of the statement having been corroborated evidence lead us to believe that confessional statements of the condemned prisoners are voluntary and true as well. Hazrat Ali and Abdur Rahman vs State 42 DLR 177. Section 27-Statement of condemned priso- ner leading to the discovery of dead bodies- Effect of. Hazrat Ali and Abdul Rahman vs State 42 DLR 177. Section 27-Information received from accused-Its language-It may not be incumbent on the part of the police officer to record the state- ment of the accused in custody giving information leading to discovery of certain fact but if such information is recorded it must be done in the language of the accused. Farid Karim vs State 45 DLR 171. S.27-Covers only "part" of statement leading to discovery. Section 27 only covers so much of the statement in consequence of which a discovery is made. Jiando Vs. State (1962) 14 DLR (WP) 43 (1962) PLD (Kar) 882. -Accused seen with the deceased alive for the last time. The accused having been seen in the same field with the deceased, a duty was cast on him to explain as to how did the deceased meet the unnatural death. By itself this circumstance may not be considered enough to connect the accused with the murder but taking it is conjunction with the other circumstances in the present case it assumes an importance of the greatest magnitude. Nazra Vs. State (1960) 12 DLR (WP) 34; 1960 PLD (Lah) 739. -How much information received from accused may be proved. On the arrest of three accused persons, two of them made certain statements while in custody of the police and thereafter led the police to a ditch and there one of them recovered from inside a bush certain stolen articles. It was contended on behalf of the accused petitioner that the evidence of joint statements made by the two accused petitioners in pursuance of which the recovery was made, was inadmissible. Held: There being nothing in the record to indicate which of the two accused made first discovery, the said evidence is not legally available or usable against any of the accused persons. Section 27 Murder case- Rigorous imprisonment for life In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There was no credible evidence with regard to the last seen theory. The recovery of the weapon of the offence was disbelieved as no disclosure statement under Section 27 of the Evidence Act was brought on record and the recoveries were effected from an open place. The appellant was made an accused on confession of a co-accused. But the vehicle allegedly recovered from the appellant was found not to be involved in the kidnapping. There was no evidence with regard to the appellant having been involved in the kidnapping and taking away of the child. It was held that identification parade was not substantive evidence and apart from the same there was no other incriminating evidence like recovery of articles from the appellant. The appeal is dismissed.....Sanjay Rajak -VS- The State of Bihar, [8 LM (SC) 11] Evidence Act [1 of 1872) Section 27 It is now settled principle of law that the power and function of both the trial Court and the appellate Court are one and the same. The appeal is a continuation of the original proceeding. That being the legal position, the High Court Division as the last Court of fact has rightly arrived at the above finding based on evidence and materials on record and attending circumstances of the case. [(2022) 26 ALR (AD) 2] -S. 27 Again the mere fact that one of them actually brought out the thing from the place where the same had been concealed also cannot warrant an inference that he must have been responsible for concealing those articles there. Rekatullah Vs. State (1961) 13 DLR 750: (1962) PLD (Dac) 261. -How much information received from accused may be proved-So much of the information as relates distinctly to the fact thereby discovered. no The fact that the piece of cloth was recovered from the place pointed out by the approver was of value as supporting the credibility of the approver's story; but the statement made by the approver that it was the accused who threw the cloth to the place where it was found is of no more, or no less, value than his statement that the accused took an active part in the murder. Bhubani Shahu Vs. King (1950) 2 DLR 39. -Evidence of pointing out by approver of places visited by the accused before the crime-Section not applicable. Section 27 relates to the discovery of fact which has been made in consequence of any information given by an accused person himself. It is not correct that in determining the relevancy of the information under this section regard is to be had to the position of the person making the statement at the time the information is given in evidence and not at the time the discovery is made. The section clearly contemplates cases where at the time of the making of the discovery the person giving the information is a per- son accused of an offence and in custody and whose information or conduct is sought to be proved against him at the trial. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123. -Where the pointing out of places is not by an accused person, and the matter is beyond the scope of section 27, such evidence is admitted merely to confirm the evidence of the person who pointed out the places. But if the pointing out amounts to statement under section 162 of the Cr.P.C., the evidence as to it would be inadmissible. Ibrahim Bhak V Crown (1955) 7 DLR (FC) 123 (135 rt. h.col). Statement in police custody coupled with pointing out the stolen property admissible. Khan Vs. Crown (1957) 9 DLR (WPC) 5. Statement of a prosecution witness admitted under section 288, Cr.P. Code, containing confession said to have been made while in police custody by an accused is not saved by section 27, Evidence Act State Vs. Fashiruddin (1958) 10 DLR 222. The plain meaning of section 27 is that if a confession to a police officer leads to a recovery, evidence about the confession is admissible in spite of the provisions of the two preceding sections. Crown Vs. Sadullah Khan (1953) 5 DLR (WPC) 98. What a Court has to see in such cases is whether the knowledge of an accused person of the place where an incriminating article lay would prove that he had placed the article there. Crown Vs. Sadullah Khan (1953) 5 DLR (WPC) 98. -The investigating officer deposed that the accused had said that he would point out the place where he had buried that stolen railway sleepers. Held: The statement of the accused that he had buried the stolen property is admissible under section 27. Crown Vs. Sadullah Khan (1953)5 DLR (WPC) 98. -Where a dead body had been pointed out by the accused and stained shirt on which the Chemical Examiner did not find any human blood had been discovered after the first information report recorded. Held: The evidence was inadmissible and was to be excluded, PLD (1956) (Kar) 350. -Recoveries of articles and dead body-Made on joint pointing out by several accused-Evidence as to recovery, inadmissible. 1950 PLD (BJ) 79. -Confessional statements accompanying pointing out of property-Inadmissible-The convict petitioners not only indicated where the property could be found but also stated that either this was their share of stolen property or indicated the circumstances under which they them selves hid the property. This part of the evidence cannot, therefore, be used against them. 2 PLD (Lah) 352. Stolen property found in a public place on the pointing out by the accused-Unsafe to convict solely on such pointing out 2 PLD (Bal) 30. -Having regard to the fact that the remains of the dead body were found from a very lonely place where no person would ordinarily go to search for clues to the child missing from the town four miles away, a reason has to be found why the police went to that place at all, and no other reason is offered than that the accused himself led them to that place. Abdus Samad Vs. State (1964) 16 DLR (SC) 261. -Statement of an accused person leading to a discovery cannot be received in proof of the criminality of another from whom any fact is discovered. Section 27 deals with the admitting of so much of such part of the statement of an accused person against him but this would not mean that the statement made by the accused person would be received in proof of the alleged criminality of the person from whom any fact is discovered. Muhammad Ak- bar Vs. State (1965) 17 DLR (WP) 9. Confessions which are inadmissible in evidence under sections 24, 25 and 26 of the Act are admissible when they contain information leading to the discovery of a fact in respect of that particular crime. Ketab Ali Vs. The State. (1970) 22 DLR 472. -Witness-Some witnesses for the prosecution mentioned in the F.I.R. not examined by the prosecution-Effect. When the prosecution has established its case by other evidence and the circumstances proved in the case are incompatible with the innocence of the accused, the mere fact that some witnesses for the prosecution mentioned in the F.I.R. were not examined by the prosecution is no ground to hold the prosecution's case otherwise. Kelab Ali Vs. The State (1970) 22 DLR 472. -Joint statement made by the accused-Admissible in evidence. On interrogation by the Officer-in-charge, the accused persons made certain statements jointly and in pursuance thereof and on their pointing out the stolen goods were recovered from a particular place. It was contended that the evidence of joint statement made by the accused was not admissible in evidence. Held: In a suitable case, the joint statements made by two or more accused persons simultaneous- ly before the discovery of the articles in question, if proved satisfactorily, may go into evidence under section 27 of the Evidence Act. Kitab Ali Vs. The State, (1969) 21 DER 377. Accused brought out robbed goods. from a place known only to him is a strong circumstance to establish that he was himself involved in the commission of the offence (of murder). The fact is that shortly after the murder accompanied by robbery the condemned prisoner was found in possession of goods robbed which he himself brought out from a place of which he alone had the exclusive knowledge. This fact is a very strong circumstance to establish that the condemned prisoner was the person who received these things following the murder and the natural inference is that he was directly concerned in the murder. Salauddin Vs. State (1980) 32 DLR 227 -Statement by an accused in custody of the police leading to the discovery of the dead body of the murdered man is admissible u/s.27 of the Evidence Act, though otherwise it will be met by s.26. Although in view of the provisions of sections -Ss. 27, 29 & 30 25 and 26 of the Evidence Act the first part of the statement that appellant caught hold of Sobhan while the other accused Bachchu, throttled him to death is not admissible in evidence as it was made in the custody of the police, but under section 27 of the Evidence Act the latter part of the statement made by the appellant in the custody of the police leading to the discovery of the dead body of the person murdered is admissible. Bachchu Vs. The State (1983) 35 DLR 170. Section 28, Article 6, 7 The claim of the respondents for muta- tion of their names has no legal basis and respondents are at first required to establish their right title and interest over the property in question in a com- petent court of law before praying for direction for mutation of their names and writ court is not the proper forum for deciding such question of title and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute. Rupali Bank Ltd. & Govt. etc. vs Shawkat Ara Salauddin Md. Tafazzul Islam J) (Civil) 2ADC 1 S.29-Admissibility of evidence is the only relevant question and how it was obtained. Evidence, admissibility of is the only relevant question- Question as to how the evidence was procured immaterial Principle equally applicable both to civil and criminal cases. Kuruma Vs. Queen (1957) 9 DLR (PC) 339. S. 30-Place see sec. 3 of Evidence Act in the matter of Mamud Ali Vs. State (1985) 37 DLR 261 (Supra) See case u/s. 24 of Evidence Act in the mat- ter of State Vs. Lalu Mia. (1987) 39 DLR (AD) 117 (supra). Confession-Retraced-Its evidentiary value against a co-accused-The fact that a confession has been retracted has nothing to do with the question of its being of a voluntary nature and true and as such cannot be ruled out of consideration merely on the ground of its being retracted. The retraction of the confession was wholly im- material once it was found that it was voluntary as well as true. Joygun Bibi Vs. State (1960) 12 DLR (SC) 156 (1960) PLD (SC) 323. "May take into consideration" What it connotes. Section 30 of the Evidence Act merely provides that the Court "may take into consideration" such confessions as against the appellant, as well as against their makers. The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substantive evidence against the other per- son, sufficient to sustain his conviction. It is well- settled that there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime, before a confession made by a co-accused could be adverted to, in adjudging the guilt of that person. The persuasive efficacy of such confessional statements would be further weakened by the circum- stances that their makers have themselves resiled from them. Moqbool Hossain Vs. State (1960) 12 DLR (SC) 217 -Co-accused's confession very weak- Not 'evidence'-Does not amount to proof". Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in sec- Lion 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination, Bhubani Sha- hu Vs. King (1950) 2 DLR (PC) 39. -Section 30 provides that the Court may take the confession and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39. -Confession of an accused may be taken into consideration-But is not strictly evidence against a co-accused. State Vs. Mukter Ali (1958) 10 DLR 155. Corroboration-Confession of a co-accused cannot corroborate the confession of another accused. Share Vs. Mukter Ali (1958) 10 DLR 155. S. 30. Explanation-"offence". Confession of a co-accused not evidence as defined in s.3 of the Evidence Act The explanation given under the section includes within the term "offence" used in the section the abetment of or attempt to commit the offence. The language of the section does not render the confession of a co-accused as evidence within the definition of section 3 of the Evidence Act. It sim- ply says that the Court may "take into consideration such confession." Lutfun Nahar Begum Vs. The State (1975) 27 DLR(AD) 29. -Confession when proved against confessing accused can be taken into consideration against co- accused in same offence. Nunshur Ali Vs. State (1987) 39 DLR (AD) 194. -Evidence adduced by prosecution-For appreciation of its quality and worth-Broad facts of the ease recounted. Appreciation of oral evidence-So- called confession by a co-accused (appellant Daud) relied upon by the trial Court-That confession is no confession in the eye of law as it was a testimony against the other accused without the maker having involved himself. Ibrahim Mollah Vs. State (1988) 40 DLR (AD) 216. -If the principal evidence in the case namely direct oral evidence does not qualify to be trustworthy the alleged confession is of no avail to the prosecution for sustaining the order of conviction. (1988) 40 DLR (AD) 216. Examination and analysis of oral evidence High Court Division failed to give due and proper consideration to the well established principles governing appreciation of evidence in a case where there is possibility of false implication because of existing dispute and enmity between the parties-Where the witnesses are related and partisan and have strong motive to depose falsely, their evidence must be put to the strictest scrutiny having regard to the attendant circumstances. (1988) 40 DLR (AD) 216. Section 30-Confession by co-accused-Its worth in the absence of corroboration-A confession made by a co-accused in a joint trial for the same offence affecting himself and others may be taken into consideration. The confession of such an accused may lend assurance to the other evi- dence on record. Babor Ali Molla vs State 44 DLR (AD) 10. Section 30-Confession Joint trial- Where more persons than one are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of his co-accused can be taken into consideration by the Court not only against the maker of the confession but also against the co-accused. It may not be an evidence within the strict meaning of the term, but it lends assurance to other evidence on record. State vs Abul Khair 44 DLR 284. Section 30-Evidence adduced by prose- cution For appreciation of its quality and worth -Broad facts of the case recounted. Appreciation of oral evidence-So-called confession by a co- accused (appellant Daud) relied upon by the trial Court that confession is no confession in the eye of law as it was a testimony against the other accused without the maker having involved him- self. Ibrahim Mollah vs State 40 DLR (AD) 216. Section 30-If the principal evidence in the case namely direct oral evidence does not qualify to be trustworthy the alleged confession is of no avail to the prosecution for sustaining the order of conviction. Ibrahim Mollah vs State 40 DLR (AD) 216. Section 30-Examination and analysis of oral evidence High Court Division failed to give due and proper consideration to the well established principles governing appreciation of evidence in a case where there is possibility of false implication because of existing dispute and enmity between the parties Where the witne- ssess are related and partisan and have a strong motive to depose falsely, their evidence must be put to the strictest scrutiny having regard to the attendant circumstances. Ibrahim Mollah vs State 40 DLR (AD) 216. Section 30-Neither the trial Court nor the High Court Division scanned the evidence in an analytical manner. After all these infirmities on the side of the prosecution the trial Court and the High Court Division should have entertained reasonable doubt as to the alleged participation of the appellants in the throwing of bombs. Ibrahim Mollah vs State 40 DLR (AD) 216. Section 30-No conviction can be made solely on the basis of a confessional statement of a co-accused unless it is corroborated by some other independent evidence. State vs Mokammel Hyeath Khan 58 DLR 373. Section 30-A confession, judicial or extra- judicial, whether retracted or not, can in law validly form the sole basis of conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture, coercion or inducement. State vs Mokammel Hyeath Khan 58 DLR 373. Section 30- The confession of an accused is not a substantive piece of evidence against the co- accused who did not confess and such evidence alone, without any substantive corroborative evi- dence, cannot form basis of conviction of co- accused. Mofazzal Hossain alias Mofa vs State 58 DLR 524. Section 30-Consideration of confession- Confession affecting person making it and others When confessional statement of an accused is found to be voluntary and partly exculpatory and partly inculpatory, the exculpatory part being improbable, contrary to reason and ordinary human conduct is liable to be rejected and the inculpatory part can be relied on even if the confession is subsequently retracted. Inculpatory part of the confession can also be used against the other accused. Abdul Kashem vs State 42 DLR 378. Section 30-The confession is sufficient to find accused Rina guilty of the charge under sections 302/34 Penal Code inasmuch as she participated in the murder starting from hatching of conspiracy for killing her husband in order to marry accused Manik to allowing the latter to bring in poison and mix it with the drinking water of her husband's jug and then to see the husband drinking that water, then after his death to hang the body and raising a feigned cry. Besides, the circumstances showed there was no scope for anyone to enter the room to kill her husband without her co-operation. Shahjahan Manik vs State 42 DLR 465. Section 30-Confession of a co-accused cannot be the sole basis for conviction. State vs Nurul Haque 45 DLR 306. Section 30-Confession-retraction-an order of conviction can be passed solely on the basis of a confession, whether retracted or not, if it is considered and found to be true and voluntary. Though there is no compulsion that a confession need be materially corroborated yet it is prudent that a Court should look for it. We are to examine the confessional statement in the light of the circumstances under which it is made and the other evidences on record corroborating the chain of circumstances as narrated by the accused before the Magistrate in his confessional statement and this corroborating need not always be in material particular as even a general corroboration or corroboration by medi- cal evidence would be considered to be enough. Abdur Rahman Syed vs State 44 DLR 556. Section 30- Confession-When not volun- tary and true-The condemned prisoner was in police custody for 2 days with no explanation. This coupled with allegation of police torture shows the confession to be not voluntary, Con- fession containing exculpatory materials out- weigh the inculpatory materials and then the statements having not been corroborated, the confession cannot be said to be true as well. Farid Karim vs State 45 DLR 171. Section 30-In a joint trial of several persons the Court may take into consideration confe- ssional statement of an accused against himself and other accused. Md Azad Sheik vs State 41 DLR 62. Section 30- The extra judicial confession made in Police Station in presence of constables who had arrested the confessing accused and the police officer who had investigated the ease is inadmissible in evidence, Mofazzal Hossain Mollah vs State 45 DLR (AD) 175. Section 30-Extra-judicial confession-If at all made appears to be wholly untrue-No reliable evidence of corroboration of the alleged extra- judicial confession and it is not at all safe to rely and act upon such extra judicial confession. The alleged extra-judicial confession if at all made by the said accused also appears to be wholly untrue. So, in the whole analysis of the facts and circumstances of the case and the evidence on record and the alleged extra-judicial confession of the condemned prisoner, we find that there is no reliable evidence of corroboration of the so-called alleged extra-judicial confession and it is not at all safe to rely and act upon such extra-judicial confession and convict the accused on that basis. Hence the conviction of the condemned prisoner Badsha Mollah on the basis of alleged extra- judicial confession cannot be sustained in law. State vs Badshah Mollah 41 DLR 11. Section 30-Mere absconding cannot always be a circumstance to lead to an inference of guilt of the accused. Mere abscondance cannot always be a circumstance which should lead to an inference of guilt of the accused. Sometimes out of fear and self-respect and to avoid unnecessary harassment even an innocent person remains absconding for some time. State vs Badshah Mollah 41 DLR 11. Section 30-Abscondance was not with any guilty mind. Existence of enmity is not disputed. Accused has been falsely implicated in this case out of grudge and enmity. State vs Badshah Mollah 41 DLR 11. Section 30-In this case the condemned prisoner Badsha remained absent or absconding for some time but subsequently he surrendered himself in Court before the commencement of the trial. It appears, this abscondance was not with any guilty mind. So, this circumstance cannot be treated as a discriminating one. State vs Badshah Mollah 41 DLR 11. Section 30-There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession, like the one which is not retracted, may form the sole basis of conviction of the maker if the Court believes it to be voluntary and true. But as against the co- accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan vs State 49 DLR 47. Section 30-Confessional statement of one accused cannot be used as evidence against another coaccused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407. Section 30-The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407. Section 30-The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin vs State 48 DLR 588. Section 30-No statement that contains selfexculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355. Section 30-If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. Jabed Ali (Md) alias Jabed Ali vs State 51 DLR 397. Section 30-It is very risky to rely on the statements of the two confessing accused so as to convict accused Mohammad Ali as there is absence of any corroborative evidence to identify Mohammad as Mohammad Ali. Mohammad Ali vs State 52 DLR 245. Section 30-The confessional statement of an accused can very well be the basis of conviction provided the same is true and voluntary. Hasmat Ali vs State 53 DLR 169. Section 30-Prolonged police custody immediately before recording of the confessional statement is sufficient, if not otherwise properly explained, to render it as involuntary. Hasmat Ali vs State 53 DLR 169. Section 30-The conviction cannot be based solely on the basis of confessional statement of a co-accused unless it is corroborated by some other independent evidence. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287. Section 30-The alleged solitary confinement was after the recording of the confessional statement and does not affect the confession as involuntary. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287. Section 30-Confession of a co-accused cannot by itself be the basis of conviction of another co-accused nor even against himself if the same is not substantiated by satisfactory evidence proving the guilt of its maker. Zahid Hossain @ Paltu vs State 55 DLR 160. Section 30 Conviction can be based on judicial confession if it is established that it is true and voluntary and is substantiated by other evi- dences, whether direct or circumstantial and mate- rials on record. State vs Moslem 55 DLR 116. Section 30-Conviction can be based on the sole confession of the accused although retracted subsequently if it is found to be true and volun- tary. Zakir Hossainvs State 55 DLR 137. Section 30- Conviction of the confessing accused based on a retracted confession even if uncorroborated cannot be said to be illegal if the court believes that it is true and voluntary. State vs Rafiqul Islam 55 DLR 61. Section 30-The trial Court first has to find the confessional statement to be true and volun- tary and then only may place reliance on it. State vs Rafiqul Islam 55 DLR 61. Section 30-The confession of one co- accused cannot be used for corroborating the confession of another co-accused as both are tainted evidence, much more so when they are retracted, for, then the maker himself repudiates the correctness of his earlier statements the confession of one co-accused could not be sustained and further the confession of one co-accused could not be said to be corroborated by the confession of another co-accused. Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382. Section 30-Confession of an accused is not a substantive piece of evidence against the co- accused, so such evidence alone without substantive corroborative evidence cannot form the basis of conviction of a co-accused. Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382. Section 30 Confession of a co-accused can be taken into consideration and on the strength of that confession another co-accused can be convicted provided the said confession is corroborated by any other evidence, either direct and circumstantial. State vs Mir Hossain alias Mira and others 56 DLR 124. Section 30-Conviction on the basis of a confessional statement upon the maker can be very much based even if the confessional statement had been retracted at a later stage. State vs Anjuara Khatun 57 DLR 277. Section 30-Very brevity of dying declaration in the circumstances of the case far from being a suspicious circumstances was an index of its being true and free from the taint of tutoring. Tenseness of statement itself can be characterised as the guarantee of truth. State vs Anjuara Khatun 57 DLR 277, Section 30-A Judicial confession not furnished voluntarily and out of free will is quite unreliable, more so, when such a confession is retracted. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513. Section 30-A retracted confession can constitute sufficient basis for conviction of its maker provided the same is found true and voluntary. Khalilur Rahman vs State 59 DLR 227. Section 30- The confessions being out and out exculpatory are not confessions in the eye of law and, as such, completely inadmissible and those cannot be considered under section 30 of the Evidence Act as against the co-accuseds. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653. Section 30-It appears from the evidence on record that the accused Kader in collusion with Kamran and Imran took Sahad from his house with a preplan to take revenge of the previous enmity. Subsequently, the conduct of the accused Kader i.e. leaving his house immediately after occurrence and his spontaneous surrender before the police also clearly corroborates the confes- sional statement. As regard the extra-judicial confession, the witnesses in whose presence he confessed his guilt, they deposed in the Court. Furthermore, the recovery of dead body and the recovery of 'Bothi' and other materials at the pointing out of Kader also clearly indicate the corroboration of confessional statement. More- over, the Magistrate who recorded the confes- sional statement has come before the Court and deposed that the accused Kader made the confessional statement voluntarily and he certified the confessional statement as true and voluntary. State vs Abdul Kader 60 DLR 420. Section 30-A confessional statement must not only be voluntary, but it must be true at the same time. The veracity of the confessional statement must not be tested in a vague and hypothetical manner, but in a concrete and logical manner in light of the evidence adduced by the prosecution. State vs Hamidul 61 DLR 614. Section 30-The confessional statement neither fits with the prosecution version of the event nor does it corroborate the testimony of the prosecution witnesses and on this score, the confessional statement cannot be taken to be true. In the absence of any other credible evidence by which the complicity of the appellant in the case can be established, his conviction becomes equally unsustainable. State vs Hamidul 61 DLR 614. Section 30-It appears from the order No. 141 dated 12-4-1997 that the accused Aktaruz- zaman Chowdhury Babu was granted bail by the Court of Sessions, and thereafter the High Court Division cancelled his bail on 27-5-1993 and directed him to surrender before the Court of the Chief Metropolitan Magistrate by 12-6-1993, but the accused flouted the order and absconded and remained in abscondence for over 3 years till his surrender before the trial Court. This conduct of Babu appears to be culpable in nature and is a cir- cumstance that goes against him. State vs Md Fazlur Rahman Tonmoy 61 DLR 169. Section 30-The general principle is that the evidence of an approver should be accepted or rejected as a whole. By making a departure from established legal principle, the Court below acquitted Babu on some untenable and unsustain- able grounds. State vs Md Fazlur Rahman Tonmoy 61 DLR 169. Section 30- The confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. Such a confession can only be used to lend assurance to other evidence against a co-accused. The judge may call in aid the confession and use it to lend assurance to the other evidence. Khalil vs State 62 DLR 309. Section 30- Confession of a co-accused can-not be the sole basis to convict the other of the co-accused, in absence of other corroborative evidence. Nuru Miah vs State 63 DLR 242. Section 30-Confession of a co-accused cannot be resorted to under any guise as substantial evidence to convict another but may be used as a relevant fact only to lend assurance to any other evidence. State vs Moksed Ali 63 DLR 346. Sections 30 & 3- Confession of co-accused -The confession of an accused is no evidence against the coaccused. Such confession cannot be taken into consideration against his coaccused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a coaccused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3-It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a coaccused itself is not evidence but it may be used, as such, if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain vs State 46 DLR 77. Sections 30 & 3-Since the confessional statement is not required to be taken on oath and taken in presence of a coaccused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Sections 30 and 114(b)- Court may take into consideration the confessional statement of a co-accused under section 30 of the Act against the one who did not confess but an accomplice is unworthy of credit unless he is corroborated in material particulars. Nazrul Islam vs State 45 DLR 142. Evidence Act (1 of 1872) Section 30 If marshalling the evidence excluding those C confessions altogether from consideration it is believed, a conviction could safely be based on it, in such event, the Judge may call in aid the confession and use it to lend assurance to the other evidence. Since confessional statement of the co-accused is not admissible against the accused Sujon and there was no other substantive evidence to connect him with the occurrence, we are of the view that the Courts below committed an error of law in convicting accused Sujon. ......(23) [73 DLR (AD) 366] Section 30-A statement of an accused would be admissible against co-accused only in terms of section 30 of the 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 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. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8 Section 30-Though generally the confessions of a co-accused are not admissible, however, there are certain exceptions where such confessional statements could be weighed up in reaching a verdict. Nevertheless, these rules applied at the time of convicting and sentencing any person after taking all the evidences. This is merely a plea for granting bail of an under trial accused. At this summary proceeding and premature stage, we cannot foretell whether there will be no other incriminating evidence adduced that could be corroborated by the confessions of the co-accused. (Per Md Ashfaqul Islam, J) State vs AHM Fuad (Criminal) 75 DLR (AD) 241 Section 30 The confession made by a co-accused 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. [73 DLR (AD) 264] S. 30 read with S.3-Confessional statement of co-accused implicating other co-accused not admissible for later's conviction. Amir Hossain Howlader Vs. The State (1985) 37 DLR (AD) 139. This section simply makes the confession of a co-accused a relevant fact, in other words, the confessional statement of a co-accused is admissible against other accused persons in the sense that it may be taken into consideration against them along with other evidence. But for this section 30, the confessional statement of one accused will be inadmissible in evidence against another accused in view of $3 of the Evidence Act. Amir Hossain Vs. State (1985) 37 DLR (AD) 139. Neither the trial Court nor the High Court Division scanned the evidence in a analytical manner. After all these infirmities on the side of the Prosecution the trial Court and the High Court Division should have entertained reasonable doubt as to the alleged participation of the appellants in the throwing of bombs. Ibrahim Mollah Vs. State (1988) 40 DLR (AD) 216. Section—30 Confessional statement, whether is evidence itself? Confessional statement is not evidence itself. It can only be taken into consideration against the co-accused if corroborated by some other independent evidence. This section applies to confession made by an accused affecting himself and his co-accused in a joint trial for the same offence and not the statement whereby he does not admit his guilt. Abdul Gafur and others, Vs. The State, 13BLD(HCD)598 Section—30 Section 30 of the Evidence Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged murder or in the abetment of the same except as to some evidence about the motive of the offence, the High Court Division was wrong in treating the confessional statement of the co-accused as substantive evidence and treating the evidence of P.Ws. 4 and 7 as corroboration thereof. Ustar Ali Vs. The State, 18BLD (AD)43 Ref: 1LR76 Indian Appeals 147; 27DLR 29; 44DLR(AD) 10—Cited. Section—30 Confession of co-accused Section 30 of the Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged dacoity or in the abatement of the same except as to some evidence about the motive of the offence, the trial Court was wrong in treating the confessional statement of the co-accused as substantive evidence against the appellant. Mojibar Vs The State, 20BLD(HCD)273 Ref: Ustar Ali Vs. The State, 18BLD (AD) (1998)43: 3BLC(AD)53; Bhuboni Safer Vs. The King, 1LR76 Indian Appeals 147; Lutfun Nahar Vs. State, 27DLR29; Babor Ali Mollah Vs. State, 44DLR(AD)10 ; 2DLR (PC) 29—relied. Section—30 Section 30 of the Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record, but it never says that such confession amounts to proof. In the instant case there being no substantive evidence, either direct or circumstantial, implicating Ansar Ali, Montaz, Bhola and Hormuz Ali in the alleged commission of dacoity, the learned Assistant Sessions Judge was wrong in convicting the appellants on the basis of the confessional statement of their two co-accused. Md. Ansar Ali Vs The State, 19BLD (HCD)224 Ref: 1 8BLD(AD)( 1998)43—relied upon Secs. 30 and 133-Retracted confessions of two co-accused's-Admissible against each other- Corroboration in material respect required as a rule of prudence. (1957) PLD (Lah) 956. Section 30— There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession; like the one which is not retracted, may form the sole basis of conviction of the maker if the court believes it to be voluntary and true. But as against the co-accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State 49 DLR 47 Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588. Section 30— No statement that contains self-exculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397 Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77. Sections 30 & 3—Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Evidence Act, 1872 Section 30 – Confessional statement of one accused cannot be the basis of conviction of non-confessing accused without corroborative evidence. Law is well settled that in a joint trial of a confessing accused and non-confessing accused for the same offence, the confession of a co-accused may be taken into consideration against non-confessing accused only along with for substantive evidance for the purpose of finding him guilty of the offence. Abdus Salam Mollah V The State 13 MLR (2008) (AD) 268. Section 30— There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession; like the one which is not retracted, may form the sole basis of conviction of the maker if the court believes it to be voluntary and true. But as against the co-accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State 49 DLR 47 Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588. Section 30— No statement that contains self-exculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397 Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77. Sections 30 & 3—Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Section 30— There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession; like the one which is not retracted, may form the sole basis of conviction of the maker if the court believes it to be voluntary and true. But as against the co-accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State 49 DLR 47 Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407 Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588. Section 30— No statement that contains self-exculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397 Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306. Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77. Sections 30 & 3—Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507. Section 30-Confession of a coaccused cannot be treated as substantive evidence against the other person to find him guilty of the offence charged with and it would require other evidence whether direct or circumstantial linking such a person with the crime, before a confession made by a co-accused can be adverted to in adjudging the guilt of that person. State vs Abdul Kader @Mobile Kader, 67 DLR (AD) 6 Section 30-When more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confes- sion as against such other of such persons as well as against the person who makes such confession. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 30-In view of the other evidence against accused-Mobile Quader, we can very much consider and use the confessional statement of co-accused within the meaning of section 30 of the Act with the other evidence adduced in the case in seeing his link or connection with the killing. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 30-Retraction of a confes- sion has no bearing whatsoever if it was voluntarily made so far the maker is concerned. It is, however, very weak type of a fact like any other fact and it cannot be the basis for conviction of co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 30-If the confessional statement is found true and voluntary, it can form the basis for conviction even if retracted so far the maker is concerned but it cannot be used against co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 30-Confession of a co- accused is not substantive evidence and such confession cannot be the sole basis of conviction of a co-accused in the absence of independent and corroborative evidence. State vs Md Tohurul Islam @ Azizul Haque, 66 DLR 386 Section 30-Confession of a co- accused is not evidence, it can only lend assurance to other evidence. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386 Sections 31 and 80-An admission is the best evidence that the opponent can rely upon, and though not conclusive is decisive of the matter unless successfully with- drawn or proved erroneous. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 32—It is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death.. Humayun Matubbar vs State 51 DLR 43. Sections 32(1)- Section 32(1) of the Act has made any statement, written or verbal, of a dead person admissible in evidence when these statements are as regards any facts and circumstances which resulted in his/her death irrespective of the fact whether the person who made those statements was under expectation of death or not at the time of making those statements. Syed Sajjad Mainuddin Hasan @Hasan vs State, 70 DLR (AD) 70 Section 32(1)—Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244 Evidence Act, 1872 Section 32 – Acceptability of dying declaration Unless the dying declaration is made under the expectation of imminent death, it is not admissible in evidence as to the cause of death of the deceased who died long after the occurance. When the occurrance took place in the darkness of night and there was no means of recognition of the accused and the Witnesses contradicted on points, the High Court Division found the convict appellant not guilty of the charge and acquitted which the apex court affirmed having found nothing wrong therewith. State Vs. Md. Ruhul Amin and others 13 MLR (2008) (AD) 280. Section 32(1) Dying declaration- Considering all the three dying declarations, in the light of well-settled principles, this Court held that all the three dying declarations are true, voluntary and consistent. Insofar as third dying declaration, this Court, in paras (408) to (412) held that the dying declaration made through signs, gestures or by nods are admissible as evidence and that proper care was taken by PW-30 Pawan Kumar, Metropolitan Magistrate and the third dying declaration recorded by in response to the multiplechoice questions by signs, gestures made by the victim are admissible as evidence. In the third dying declaration, the victim also wrote the names of the accused persons "Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju". So far as the name of accused Vipin written by the prosecutrix in the third dying declaration has been elaborately considered by this Court in paras (150) and (188) of the judgment. Mukesh VS State of NCT of Delhi, [4 LM (SC) 101] Section—32(1) Dying declaration It is alleged by the defence that P.W.1 admittedly not a witness of the occurrence implicated the accused persons out of enmity at the instance of P.W.4 who during cross- examination himself stated categorically that before going to the thana for lodging F.I.R. he consulted the matter with the informant PW. 1 which lends support to the defence version that the accuseds have been falsely implicated in the case in collusion with him. It is also in the evidence of P.W.5 that regarding dying declaration alleged to have been made by the deceased on query to her wife but Mobessera did not say that she reported the matter to P.W. 1 before going to thana for lodging F.I.R. Moreovor the daroga deposed that she did not state to him that her husband the victim told her the names of the accused persons or she saw them running away. This statements are also absent in the first information report. Moreover the principal accused Kamrul Islam have been acquitted by another Bench of the High Court Division disbelieving the prosecution story in Criminal Appeal No. 605 of 1995. Liton Vs The State, 20BLD(HCD)219 Section—32(1) In the instant case, there are two dying declarations made by deceased Hatem Ali Sikder and in both the dying declarations he mentioned the names of the appellants. The second dying declaration being nearer to death, the High Court Division believed the same and acted on it. Moreover, P.Ws 4 and 7 in clear terms mentioned the inflicting of injuries by the appellants on the person of the deceased, which is supported by the medical evidence. The High Court Division ought not to have rejected the evidence of these two witnesses merely on the ground that they were not disinterested witnesses, notwithstanding the fact that the defence failed to shaken their credibility in cross-examination. The order of conviction is maintained. Samad Sikdar Vs. Md. Abdul annan Sikder, 17BLD(AD)239 Section—32 (1) Dying declaration—Conditions for acceptance Three conditions will have to be fulfilled before a dying declaration is acted upon. The first condition is whether the victim had the physical capability of making the statement. Secondly, whether the witnesses heard the statement correctly and reproduced the names of the assailants correctly in the Court. Thirdly, whether the maker of the dying declaration had the opportunity to recognise the assailants correctly. Md. Abul Kashem Vs. The State, 15BLD (HCD)205 Section—32(1) Dying declaration A dying declaration if believed can alone from the basis of conviction, as it is a substantive evidence under section 32 of the Act. In the instant case the dying declaration was duly recorded by a competent Magistrate who proved the same before the Court. The dying declaration was recorded on 22.5.1989 and the victim died on 15.6.1989. The intestine of the victim came out and he was operated upon immediately. Thereafter on the requisition of hospital authority the dying declaration was recorded by a competent Magistrate which shows critical condition of the victim. Moreover the victim himself corroborated, it by saying that he could not speak further and there- fore merely because the victim died some days after recording the dying declaration will not render the dying declaration inadmissible under section 32 of the Act. The State Vs Akkel Ali and ors, 20 BLD(HCD)484 Section—32(1) Statement of a dead person when relevant? Statement, written or verbal, of relevant facts, made by a person who is dead is relevant when the statement is made by a person as to the cause of his or her death in cases in which the cause of that person’s death comes into question. The State Vs. Abdul Khaleque, 13BLD (HCD)354 Ref: PLD 1956 (FC)43=8 DLR (FC) 24; BCR 1982 (Special Bench )344; 12 BLD 49; 40 DLR(AD)281; 21DLR(SC)89=PLD 1969 -SC 89; Pakala Narayan Swami Vs. The King Emperor (1939)56 Indian Appeals 66 (76); 27 DLR (AD) 29—Cited Section 32 – Dying declaration its acceptability While accepting the dying declaration to form the basis of conviction the court is bound to make scrutiny as to the physical condition and capability of the victim to make the dying declaration. When the recording Magistrate categorically stated that the victim could not speak clearly and the attending doctor stated the condition of the victim was very serious and when the victim did not disclose to anybody else the names assailants during seven days after the occurrence the learned judge the High Court Division held the dying declaration doubtful. The Appellate Division concurred with the findings of the high Division and accordingly dismissed the leave petition. State Vs. Shahin and others 15 MLR (2010) (AD) 37. Evidence Act, 1872– Section 34 –Conviction can be based on one witness – There is no legal bar convicting an accused on the basis of evidence given by police personnel when the same appears to be trustworthy. Again conviction can well be based on the evidence of solitary witness if found reliable. Bayezid Hossain @ Bijoy Vs The State 11 MLR (2006) (HC) 263. Section 32—It is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death. Humayun Matubbar vs State 51 DLR 43. Section 32(1)—Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244 S.32-Dying declaration-In order to be sole basis for conviction on dying declaration alone ing the various circumstances and compare them with the statements in the dying declaration for safe dispensation of justice. A Razik vs State (1965) 17 DLR (SC) 1. Dying declaration-Conviction can be found- ed on dying declaration alone when it is considered true and genuine. The legal principle that when more than one conclusion can be drawn from a given set of facts, then the conclusion favourable to the accused should be accepted as correct is not applicable in assessing the truthfulness or otherwise of dying statement of an eye-witness, Abdur Raziq vs. State (1964) 16 DLR (WP) 73 -Expectation of imminent death is not a requirement for treating the declaration as a dying declaration. What is relevant is whether the declaration is voluntary or under pressure from any outside quarter. Conviction can be based on such declaration. Nurjahan Begum Vs. State (1988) 40 DLR 321. S.32(1) -Dying declaration-Judge's failure to warn the jury that the declaration was not liable to cross- examination does not vitiate the trial. Abdur Rah- man Vs. State (1959) 11 DLR 494. -Recorded in English without the language of the deceased-Who made the statement in Bengali- Admissible. Where the dying declaration made in Bengali has been recorded in English without improving on the language of the deceased, such a dying declaration suffers from no infirmity and is admissible in evi- dence. State Vs. Bahar Ali (1959) 11 DLR 258: (1959) PLD (Dac) 832. -Record does not contain the exact words of the deceased-Record unreliable. Omar Ali Vs. State (1961) 13 DLR 251; (1962) PLD (Dac) 418. -Omission to mention in the dying declaration the name of one of the three witnesses due to serious physical condition is not of much significance, Ghu- Jam Hussain Vs. Zainullah (1961) 13 DLR (SC) 147 (1961) PLD (SC) 230. Its evidentiary value-Judge's failure to Caution the jury is a serious omission. Samar Mallick Vs. State (1960) 12 DLR 535 (1961) PLD (Dac) 438. Made in the course of police investigation Admissible. A dying declaration though made in the course of investigation to which clause 32(1) applies, would not be hit by section 162 of the Criminal Procedure Code. Shahidullah Khan Vs. State (1960) 12 DLR 537 (1961) PLD (Dac) 1. When alone can form the basis of conviction. If a dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction. Some of the main tests for determining the gen- uineness of dying declaration are: Whether intrinsi- cally it rings true, whether there is chance of mis- take on the part of the dying man in identifying or naming his assailants and whether it is free from prompting from any outside quarter and is not incon- sistent with the other evidence and circumstances of the case. If a dying declaration stands the normal test for judging its veracity it becomes a wholly reliable piece of evidence, but if it does not, it is far worse than an ordinary statement of witness because the maker of the dying declaration was not subjected to cross-examination and was not under an oath. This is not saying that if a dying declaration is false in some particulars, it must always be rejected, but most certainly if it is found that the dying man in his statement has indulged in telling lies even partially, that would put the Courts on guard against accepting the rest of the statement without any corroboration, and the result may well be that the whole of the statement is rejected. Taj Mahmud Vs. State (1960) 12 DLR (WP) 30: (1960) PLD (Lah) 723. -Dying declaration-Admissibility. A dying declaration is inadmissible when upon its face it is incomplete and no one can tell what the deceased was about to add. It is a serious error to ad- mit a dying declaration in part. Cyril Waugh Vs. King (1957) 9 DLR (PC) 353. -It is further and even more serious error not to point out to the jury that it had not been liable to cross-examination. Cyril Waugh vs. King (1957) 9. DLR (PC) 353. -The provision in section 164 of the Code of Criminal Procedure does not in any way affect the admissibility of a statement made by a person, if it falls within the terms stated in section 32. Dying declarations are admissible even if orally made. They may contravene the general rule of hearsay evidence, but that is because the Legislature has made them expressly admissible. Allah Baksh Vs. Crown (1951) 3 DLR (FC) 388. -Dying declaration is not to be disregarded be- cause part of it is false. State Vs. Khalilur Rahman (1957) 9 DLR 327. While dealing with the question of dying declaration the Judge has to discuss this matter from four stand-points: Firstly, whether the maker had the physical capacity; Secondly, whether the witnesses who heard the deceased making the statement heard him correctly: Thirdly, the Judge has to deal with the question whether the maker had any opportunity to recognise the assailants; Lastly, there is no rule of law that a dying declaration must be corroborated before it can be acted upon. Ajmat Ali Vs. Crown (1955) 7 DLR 356. -Dying declarations are admitted into evidence on the principle of necessity, but a dying declaration can be made the basis of conviction only when the jury are satisfied beyond all shadow of doubt that the man who made the declaration had a good opportunity of recognizing his assailant. Ajmal Ali Vs. Crown (1955) 7 DLR 356. -Dying declaration-Recorded not as uttered-The investigating officer who recorded the dying declaration of the deceased deposed that as the Bengali of the deceased was not correct, he improved the language retaining the full sense of what the de ceased had spoken. Held: The dying declaration is not admissible. Rejan Ali Vs, Crown (1955) 7 DLR 141. -Expectation of death, not necessary For admissibility of statement, a person should not necessarily be under expectation of death when he made it. Statement with regard to the cause of death of another person injured in the same transaction in which the person making the statement was injured is also admissible. Mian Khan Vs. Crown (1954)6 DLR (WPC) 213. -A dying declaration alone can be the basis for a conviction, if it is free from suspicion. Shahbaz Vs. Crown (1957) 9 DLR (WP) I. -Dying declaration-Its evidentiary value Dying declaration-When admitted under section 32 of the Evidence Act stands on the same footing as any other evidence as to its value and credibility. Tera Mia Vs. Crown (1955) 7 DLR 539 (546). -Recording of dying declaration in the form of questions and answers-Improper. Sultan Ahmed Vs. Crown (1950) 2 DLR 30. S. 32(1), 32(1)(2) & 35 (3) That for some time before the deceased's death, the accused had started threatening her with death in case she refused to carry out the afore- mentioned wishes of the accused. (4) That the accused actually made several attempts on the life of the deceased before she actual- ly died on the 7th of December, 1953. Held: The diary is admissible in evidence. (1956) PLD(Lah) 300. Letter written by the deceased prior to the occurrence showing relationship with the accused- admissible. Ghulam Ahmed Khan Vs. State (1958) 10 DLR 55 1957 PLD(Kar) 824. -Practice of recording dying statement in the language other than the language of the declarant should be discouraged. Dying declaration made in one language, but recorded in another language-Admissibility of,-A dying declaration recorded in one language while made in another language will be admissible in evidence if a certificate is given by the recording officer that it was translated into the language of the maker and read it over to the deceased and the latter admitted the same to be correctly written and put his signature or thumb-impression on it. In the absence of any such certificate in the dying declaration, it cannot be safely said that the facts recorded in the dying declaration were the actual version of the deceased. Rahmat Baksh Vs. The State, (1970) 22 DLR 482, -Dying declaration-To what extent can be relied on for assessing the guilt of the accused. To find out the truth or falsity of a dying declaration, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In the last analysis, as stated in some of the eminent judicial decisions, "the grain, has to be sifted from the chaff in each case, in the light of its own particular circumstances. Dying declarations of the deceased which have a degree of sanctity under the law, being the statement of a dying man, is that he would not tell a lie and implicate innocent persons on false charges. But in view of the habit in our country that people do add innocent persons along with the guilty to satisfy their sense of revenge, it is difficult to lay down a rigid rule that a person who is under an apprehension of death, would suddenly by gifted, with a clean con science and a purity of mind to shed all the age-old habits and deep rooted rancors and enmities. Tawaib Khan Vs. The State, (1970) 22 DLR(SC) 16. -Statement of a dead person is a relevant fact as to the cause of his death. Statement of a dead person is a relevant fact un- der that sub-section, when it is made by that person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Lutfun Nahar Begum Vs. The State (1975) 27 DER (AD) 29. -"Circumstances of the transaction which resulted in his death considered with reference to the facts of the present case. Lutfun Nahar Begum Vs. The State (1975) 27 DLR (AD) 29. -A statement made by the deceased two days before his death is not an admissible evidence. Though a statement alleged to have been made by the deceased two days prior to his death was found to be inadmissible, it was sought to be utilised to furnish a background or, indeed, a notice for the crime and it was held that, "that, however, can- not excuse the reception of inadmissible evidence". Lufun Nahar Begum Vs. The State (1975) 27 DLR (AD) 29. -Ss. 32(1)(2) and 35-Admissibility of evidence Doctor who prepared injury sheets and post-mortem report resigned and his address was not known-Another doctor proved the reports to be in the handwriting of the previous doctor-Held: Re- ports can be relied upon as substantive pieces of evidence. Thus the injury sheets and the post-mortem re- port prepared by Dr. Rashid Mahamud (who has since resigned from service, has proceeded to Arabia and his address is not known) in the ordinary course of business and in the discharge of his professional duty are relevant facts and are admissible as substantive evidence. The State Vs. Bakhmir. (1970) 22 DLR(WP) 27. -S. 32(2): Statements of relevant facts by a person dead or cannot be found. From a plain reading of clause (2) of section 32 Evidence Act, it will appear that this clause makes all statements admissible, whether written or verbal of the kinds mentioned in it, including statements made in the "ordinary course of business" or in the "discharge of professional duty", if the maker thereof is dead or is not available for being placed in the witness box, because of such other reasons as have been specified in the section. The admissibility, however, is conditional upon such statements being themselves of relevant facts. In the instant case the entries appearing in the post-mortem report in question are in respect of in- juries on deceased Dulal which relate to a relevant fact, namely, of the cause of Dulal's death. The entries or statements were made in writing by a doctor who was dead. They were made by the said doctor in the "ordinary course of business" and also "in the discharge of professional duty" and as such are relevant under the section. Khoka Jasimuddin Vs. The State, (1973) 25 DLR 181. Section 32—It is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death.. Humayun Matubbar vs State 51 DLR 43. Section 32(1)—Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244 Section 32- Dying declaration- A conviction can be based upon a dying declaration if it is found true, voluntary and free from being tutored or influenced by others. The persons who record the dying declaration must take care in recording the statement of the declarant/victim. A dying declaration is recorded when the attending doctor suspects that there is little chance of survival of the victim and intimates the near ones about his condition or the investigating officer So that the investigation officer can arrange for recording the dying declaration. If the dying man is capable of making a statement, any person may record his statement in the language of the maker. There is no hard and first rule in recording the such statement. It may be recorded by the investigation officer himself or by the attending doctor or by any relation of the victim. The court can act upon the dying declaration without being recorded by a Magistrate if the statement of the witness who proves the recording is found to be true and voluntary. Tofayel Ahmed =VS= The State, [1 LM (AD) 511] Section 32- Non disclosure of the appellant name of the name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it The Appellate Division observed that the High Court Division ought to have considered the non- disclosure of the appellant name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it so far the appellant is concerned particularly when there is admitted enmity between the parties. ......Tofayel Ahmed -VS- The State, [1 LM (AD) 511] Sections 32, 33- Hearsay evidence- It is the cardinal principle of law of evidence that hearsay evidence is to be considered together with circumstances and the material facts depicted. Hearsay evidence is admissible and the Court can rely on it provided it has probative value. (Majority view), (Per Mr. Justice Syed Mahmud Hossain, CJ)....A.T.M. Azharul Islam VS Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593] Section-32, 33- Hearsay evidence- Mr. Shajahan repeatedly complained that the Tribunal below erred in admitting hearsay evidence. Without any insinuation I only wish to express my surprise as to how Mr. Shajahan could be oblivious of the express provision in the Act which stipulates that the tribunal shall not be bound by technical rules of evidence and may admit any evidence which is deemed to have probative value, and of the express provision in Rule 56 (2) which confers discretion on the Tribunals to accord due consideration to hearsay evidence Again, it is not only our Act, hearsay evidences were admissible in the IMT in Nuremberg and Tokyo Tribunal as well as by other national tribunals such as US Military Tribunal in Nuremberg and Soviet Tribunals and the British Tribunal that tried war criminals before as well after the hostility ended in 1945. Statutes of modern UN sponsored tribunals such as ICTY, ICTR, SCSL, STL and even that of International Criminal Court (ICC) do not proscribe hearsay evidence for very cogent reasons. The very nature of the crimes concerned and the manner of their commission are such that credible hearsay evidence are indispensable.s Although there is no rule governing the admissibility of hearsay evidence before the ICTY, ICTR and SCSL, the Trial Chambers of all these tribunals have refrained from adopting a practice to exclude all hearsay evidence. There is no rule declaring hearsay rule per se inadmissible. scheme General for admissibility of evidence set out in Rule 89 for ICTY, ICTR and SCSL has guided the chambers in their deliberation on hearsay evidence. In Prosecutor-v-Galic, the Appeals Chamber of ICTY defined the scope of admissibility of hearsay evidence pursuant to Rule 89(1) saying that the said Rule "permits the admission of hearsay evidence in order to prove the truth of such statements rather than merely the fact that they were made. According to that decision a hearsay evidence may be oral i.e. where someone else had told him something out of Court or in black and white, for example when an official report, written by someone who is not called as a witness, is tendered in evidence. The Appeal Chamber expressed that Rule 89(c) clearly encompasses both these forms of hearsay evidence" (Decision on Interlocutory Appeal, June 7, 2002). The Trial Chamber of ICTY expressed in Prosecutor -v-Tadic on a defence motion on hearsay (5th August 1996), "out of Court statement that are relevant and found to have probative value are admissible". The same position was taken by the Trial Chamber of ICTY in Prosecutor-v-Blaskic, while deciding on the standing objection of the defence to the admission of hearsay evidence with no inquiry as to its reliability. (January 21, 1998). It was held that hearsay evidence must have indicia of reliability in order to be admissible: reliability is not merely a matter of going to the weight of the evidence. Similar view was also expressed in Prosecutor-v-Natelic and Martionovic, ICTY Appeal judgment, May 3, 2006, para 217 and 516, Prosecutor-v- Aleksovski, decision on prosecutor's appeal on admission of Evidence, 16th February 1999, para 15, Prosecutor-v-Milosevic, decision on testimony of defence witness, Dragan Jasovic, April 15, 2005, page 4 Prosecutor-v-Mihitino Vic, decision denying prosecution Second Motion for admission of evidence pursuant to Rule 92, (13th September 2006, para 5.)? Prosecutor- v-Prlic, decision on appeals against decision admitting transcript of Jadranko Prlics questioning into evidence, (23rd November, 2007, para-52). It has been held by all these tribunals that hearsay evidence can be admitted to prove the truth of its contents, and the fact that it is hearsay does not necessarily deprive the evidence of its probative value and that the chamber must be satisfied of its reliability given the context and character of the evidence for it to be admitted (Prosecutor - V- Aleksovski- ICTY, decision on Prosecutor's appeal on admissibility of evidence, 16th February 1999, para Prosecutor-v-Semanza, decision 15, on the defence motion for exclusion of evidence on the basis of violations of the rules of evidence, Res Gestae Hearsay and violation of the Statute and Rules of the Tribunals, 23rd August 2000. In the case of notorious Milosevic, though the Appeal Chamber of ICTY held that hearsay evidence will usually be given less weight than that given to the testimony of a witness who has given it under a form of oath and who has been cross examined, it nevertheless also stated, "it depends upon infinitely variable circumstances of the particular case ...". (Prosecutor -V - Milosevic, decision on admissibility of Prosecution Investigator's evidence, September 2002, para 18. ICTY Chamber also made it abundantly clear that the right to cross examination incorporated as part of the fair trial provisions of Article 21(4)(e) Statute and Article 20(4)(e) of ICTR statute "applies to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness" (Prosecutor -v- Blaskic, decision on standing objection of the defence to the admission of hearsay with no inquiry as to its reliability, 21st January 1998, para 29). The SCSL in Prosecutor-v-Brima (decision on joint defence evidence to exclude all evidence from witness, 24th May 2005, para 12) observed "it is now well settled in the practice of international tribunals that hearsay evidence is admissible". It went on to say, "the probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of context and nature of the evidence itself, including the credibility and reliability of the relevant witness". The Appeal Chamber in Prosecutor-v- Norman, (Fofana appeal against bail refusal, 11th March 2005, para 22) held that the relevant rule has conferred a broad discretion upon the tribunals to admit hearsay evidence. Even the East Timore's Special Panel for serious Crimes held hearsay evidence to be admissible, though hearsay upon hearsay will deserve little weight (Prosecutor-v- Marques, 11th December 2001). The ICC in Prosecutor-v-Katanga of Ngudjolo (decision on the confirmation of charges, 30th September 2008, ICC-01/04- 01/07-717, para 137) held that though any challenge on hearsay evidence may affect its probative value, it may not affect its admissibility. ICC further stated in that case that hearsay is admissible even if the source of the evidence is anonymous. Whilst relying on ECHR jurisprudence propounded in Kostovski-v-The Netherlands, judgment delivered on 20th November 1989, the pre-trial Chamber of ICC, in Prosecutor-v-Katanga of Ngudjolo, supra, reiterated previous finding of the Pre-Trial Chamber in Prosecutor -v- Labanga that there is nothing in the statute or the Rules which expressly provides that the evidence which can be considered hearsay from anonymous sources is inadmissible per se. In addition, the Appeals Chamber has accepted that, for the purposes of the confirmation hearing it is possible to use items of evidence which may contain anonymous hearsay, such as redacted versions of witness statement. (Prosecutor-v-Labanga ICC-01/04-01/06- 803, para 101). The Pre-Trial Chamber further stated that the probative value of anonymous hearsay evidence will be determined in the "light of other evidence". The International Military Tribunal in Nuremberg allowed the use of hearsay evidence through affidavits, but it also required that any such affiant to be available for cross examination. Its charter, developed under the Moscowe Declaration 1943, provided for a criminal procedure that was closer to civil law than to common law with wide allowance for hearsay evidence. The London Charter enunciated simple evidentiary rule repeatedly propounded in the US internal position papers, reading; "The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value" which stands virtually reproduced in provisions are not dissimilar) (Paras:713-731); ..Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] Section 32(1)-Dying declaration- It appears that such dying declaration cannot be considered as the sole basis for conviction and awarding sentence to the appellant, specifically in the absence of any of the witnesses who were present in the hospital during the time when the alleged dying declaration was made by such a critically injured person who was under intensive care and not supposed to be in conscious. As such the finding of the High Court Division that 'the prosecution has clearly established the motive of the case and the oral dying declaration has also been supported by the medical evidence and other circumstances and materials on record' is not sustainable in law. Consequently, the impugned judgment passed by the High Court Division basing on the such uncorroborated oral dying declaration against the present appellant is liable to be set aside. Accordingly, this criminal appeal is allowed.... Rashed =VS= The State, [6 LM (AD) 70] Section 32-There appears some vagueness in the alleged verbal dying declaration and that is why before relying upon such dying declaration it is the rule of prudence that necessitates the corroboration of the same by reliable evidence Gadu Miah vs State 44 DLR 246. Section 32-Expectation of imminent death is not a requirement for treating the declaration as a dying declaration. What is relevant is whether the declaration is voluntary or under pressure from any outside quarter. Conviction can be based on such declaration. Nurjahan Begum vs State 40 DLR 321. Section 32-Dying declaration-If it stands the normal test for judging its veracity it becomes a wholly reliable piece of evidence, but if it does not, it is far worse than an ordinary statement of a witness. The value of dying declaration depends in a case on its own facts and the circumstances in which it is made. If a dying declaration is found to be false in material particulars it must re-act on its genuineness as a whole because in the case of dying declaration the veracity of the contents is presumed on the basis that it happens to be the words of a dying man, who on normal human behaviour would not at the close of his life like to tell a lie. Therefore, if a single matter is introduced in the dying statement which has a bearing on the result of the case and is found to be false, it will hit the whole dying declaration. It cannot then be said that it is the statement of a truthful person who has made the statement in realisation of his obligations to adhere to the truth while he is quitting his worldly existence to join his Creator, to Whom he is answerable for his deeds. Babu vs State 45 DLR 79. Section 32-Hearsay evidence-The witness stated that he had heard from the deceased that the accused hired his van and were taking him to Jessore. This part of the evidence, though hearsay, is admissible in evidence being circumstances of the transaction resulting in the death of the deceased. Abul Kashem vs State 42 DLR 378. Section 32-Dying declaration-Conditions to act upon such declaration-The court is to see whether the victim had the physical capability of making such a declaration, whether witnesses who had heard the deceased making such state- ment heard it correctly, whether they reproduced names of assailants correctly and whether the maker of the declaration had an opportunity to recognise the assailants. Hafizuddin vs State 42 DLR 397. Section 32-Dying declaration-A dying man incapable of making any statement may by some gesture, sign or symbol express something which may be interpreted as his statements admissible under the law. But it is to be seen whether his expressions intrinsically ring true or not. Dying declaration may be judged from several standpoints; whether the victim had physical capacity to recognise the assailant or whether he had the opportunity to recognise the assailant or whether there is any chance of mistake as to the identity of the assailant or whether it was free from outside prompting and lastly, if the evidence could be relied upon under the given facts and circumstances of the case. A Alim vs State 45 DLR 43. Section 32-lt is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death. Humayun Matubbar vs State 51 DLR 433 Section 32-There is nothing in the evidence that after recording the dying declaration in English any person present at the time of recording of dying declaration translated the same in Bengali and that explained the statement to the maker and that the maker admitted the correctness of the same. This being the position the correct- ness of the dying declaration is very much doubtful. State vs Babul Hossain 52 DLR 400. Section 32-To make the Dying declaration the basis for sentencing an accused to death or any other sentence the same is required to be found reliable. State vs Babul Hossain 52 DLR 400. Section 32-An injured person under the impediment of death, while making oral or written dying declaration, will not falsely implicate even the persons inimical to him. Milon @ Shaha- buddin Ahmed vs State 53 DLR 464. Section 32-The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed 54 DLR 333. Section 32-If the Court can unhesitatingly accept it and act upon it, a dying declaration by itself can form the basis of conviction under given circumstances. State vs Rashid Ahmed 54 DLR Section 32-Identification by torch light or hurricane light, at dead of night is not sufficient unless the distance is in close proximity and when there is a background of enmity and the witnesses are chance witnesses and not natural witnessess and natural and independent witnesses were not produced, it is unsafe to rely on the chance witnesses to connect the accused with the crime. Nepoleon Khondker alias Lepu vs State 54 DLR 386. Section 32-The dying declaration of victim has not been reduced to writing, yet when it has been proved by overwhelming ocular evidence to prove the guilt of accused appellant, the dying declaration of victim itself stands out as a strong piece of evidence proving the guilt of the appellant. Salim vs State 54 DLR 359. Section 32-When a dying declaration of the victim is stated by the witnesses and the declaration is not taken exactly in the own words of the deceased, but is merely a note of the substance of what had stated, it cannot be safely accepted as a sufficient basis for conviction. State vs Kabel Molla 55 DLR 108. Section 32-A dying declaration enjoins almost a sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at that stage he is not likely to make a false statement. Court's duty is to scrutinise the statement and to separate grain from the chaff of the said statement. Babul Sikder and others vs State represented by the DC 56 DLR 174. Section 32-Dying declaration-If the dying declaration is acceptable as true conviction can be based upon the dying declaration alone in the absence of corroborative evidence on record. State vs Abdul Hatem 56 DLR 431. Section 32-A dying declaration may be recorded by any person who is available and it may be written or it may be verbal; it may also be indicated by signs and gestures, in answer to questions, if the person making it is not in a position to speak. There is no requirement of law that a dying declaration should be recorded by a Magistrate as in the case of the confessional statement of an accused under section 164(3) CrPC. Sahabuddin vs State 61 DLR 54. Section 32-Dying Declaration-In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making declaration. Sahabuddin vs State 61 DLR 54. Section 32-Dying Declaration-Dr Kamrul Ahsan had not been produced in the Court by prosecution and he was withheld. In the event of his offering evidence in support of Dying Declaration, fitness of deceased Shah Alam Babul and his capability to make declaration could be tested by way of cross-examination. Sahabuddin vs State 61 DLR 54. Sections 32 and 157-The evidence of the doctors and the report of the postmortem examination cannot be substantive evidence, but can only be corroborative evidence. Uzzal alias Elias Hossain vs State 59 DLR 505. Sections 32 & 157-A fundamental rule in the law of evidence is that in any given case the evidence must be direct and to that extent the rule against hearsay is an exclusionary rule. The hearsay rule excludes evidence because the evidence given in Court is not direct evidence. The main reason for excluding such evidence, inter alia, is that the person who is said to have made the statement is not before the Court and cannot be subjected to cross-examination and thus the veracity of that statement could not be tested. Uzzal alias Elias Hossain vs State 59 DLR 505. Section 32(1)- Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244. Section 32(1)- Deceased Shajneen, on two occasions, reacted sharply against conduct of culprit Hasan. Her utterances made then unfold a bitter relationship between her and Hasan. Such reactions of Shajneen a few hours before the occurrence are admissible in evidence. These facts fall in the category of "statement" of the deceased "as to any of the circumstances of the transaction which resulted in her death". The proximity of the reaction are relevant and therefore falls under the purview of section 32(1) Evidence Act. State vs Shahidul Islam alias Shahid 58 DLR 545. Section 32(1)- Conspiracy is a secretive activity and it can hardly be seen. It may be perceived and may also be inferred from the circumstances of a particular case. State vs Shahidul Islam alias Shahid 58 DLR 545. Section 32(1)-Dying declaration need not be identical and of the same but if substance of the same fulfils other conditions to act upon such declaration, then it is admissible in evidence. A detailed statement cannot necessarily lead to the inference that the statement is fabricated one. It is now well settled that a dying declaration, oral or written, when established as true can form the sole basis of conviction. State vs Moinul Hoque 60 DLR 298. Section 32(1)-Dying declaration-Its probative value (by majority): A dying declaration although a piece of substantive evidence has always been viewed with some degree of caution as the matter is not liable to cross-examination. It stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and common human experience. When there is a record of such statement of the deceased the Court has to satisfy itself, in the first place, as to the genuineness of the same keeping in view all the evidence and circumstances in which the statement of the deceased was said to have been recorded. The alleged dying declaration, the only piece of evidence against the appellant, having not been free from reasonable doubt, the accused is entitled to the benefit of doubt. Sk Shamsur Rahman vs State 42 DLR (AD) 200. Section 32(1)-Dying declaration- Statement of a person about the cause of his death or circumstances leading to his death is substan- tive evidence under section 32(1) of the Evidence Act-If found reliable, it may by itself be basis for conviction even without corroboration. Statement falling under section 32(1) of the Evidence Act is called a "dying declaration" in ordinary parlance-A dying declaration may be recorded by any person who is available and it may be written or it may be verbal or it may be indicated by signs and gestures in answer to questions even-There is no requirement of law that a dying declaration should be recorded by a Magistrate as in the case of the confessional statement of an accused under section 164(3) CrPC. Nurjahan Begum vs State 42 DLR (AD) 130. Section 32(1)- Legislature in its wisdom has put a dying declaration at par with evidence on oath for the simple reason that a man under the apprehension of death is not likely to speak falsehood and involve innocent persons in preference to his assailant. When a Probationer Officer actually recorded the statement in presence of, and under the observation of the Superior Officer (PW 9), there was hardly any wrong in his Evidence that he recorded it in presence of the witnesses. Nurjahan Begum vs State 42 DLR (AD) 130. Section 33-When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul vs State 47 DLR 486. Section 33-A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula would be laid down that non-examination of investigating officer per se vitiates a criminal trial. Babul Sikder and others vs State represented by the DC 56 DLR 174. Section 33 Relevancy of evidence-Right and opportunity to cross-examine-It is the right to cross-examine and not the exercise of such right that is material for the purpose of application of the provision under section 33 Evidence Act. Shaikh Baharul Islam vs State 43 DLR 336. Section 33-Evidence of the recording Magistrate was not placed before the trial Court under section 33 of the Evidence Act-Hence this cannot be used as evidence. But that statement of the Magistrate recorded in the earlier case cannot be taken into conside- ration in this case as it was not recorded in the presence of accused appellant and also because he did not have the opportunity to cross-examine the said Magistrate. This appellant was then a witness. So the evidence of the recording Magistrate cannot be considered in this case and the confessional statement cannot also be used against the appellant. Angur vs State 41 DLR 66. Section 33- Burden of proof-Prosecution to discharge its burden by producing unimpeach- able evidence of reliable witnesses-Benefit of doubt goes to the accused if doubt arises. State vs Manik Bala 41 DLR 435. Section 33—When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul and others vs State 47 DLR 486. Section 33— Use of evidence recorded by Magistrate of Marine Court by Admiralty Court- Whether permissible— The evidence of the witnesses recorded by the Magistrate of the Marine Court cannot be used by the Admiralty Court for determining the amount of compensation. Bangladesh Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others. 3, MLR (1998) (AD) 59. Section 33—When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul and others vs State 47 DLR 486. S.33-Failure of the Court to record an order regarding its satisfaction for non-production of a wit- ness will not render the evidence inadmissible. State vs. Badsha Khan (1958) 10 DLR 580. -Statement of prosecution witnesses recorded by the committing Magistrate transferred to Sessions record on the ground that their depositions were of a formal nature-Procedure illegal-Defect not curable under section 537, Criminal Procedure Code. Depositions of some witness were transferred to the Sessions record without summoning them on the ground that their evidence was of a formal nature and with a view to avoid unnecessary expenses to the state, and the order of the learned Judge was ac- quiesced in by the counsel for the accused. Held In a criminal case, the provisions of section 33 of the Evidence Act cannot be waived; the evidence of the witnesses, illegally admitted, must be excluded. Ali Haider vs. State (1958) 10 DLR (SC) 193. -Doctor's evidence given in an earlier trial-Doctor's evidence given in an earlier trial- cannot be accepted under the section on a mere statement in a petition that he is ill. Matia Badia vs. State (1957) 9 DLR 414. -Judicial proceeding-A proceeding be- fore a Court which had no jurisdiction to entertain it is not a "judicial proceedings" within the meaning of section 33 and the deposition of witnesses given in such a proceedings could not legally be put in the Court of the Sessions Judge under section 33. A. Mannan vs. Crown (1952) 4 DLR 519. Incapacity to appear must be established. Ad- mission of evidence under the section is illegal un- less the incapacity of the witness failing to appear is established, State vs. A.Rahman (1958) 10 DLR 61. -The Magistrate who recorded the confession of the accused was not examined as a witness in the Court of Sessions nor evidence was adduced to show that the Magistrate was not available so as to let in his evidence under section 33. The confession was admitted in evidence and referred to in the course of the charge to the jury. Held: The confession not being proved accord ing to law was illegally admitted in evidence. Hiralal Das vs. Crown (1951) 3 DLR 383. Where the deposition of witnesses were taken down under section 512, Cr.P.C., and the prosecu tion subsequently put them in the Court of Sessions under section 33, the Judge, while allowing them to be used as evidence, failed to give caution to the jury that the witnesses, whose evidence were so put in, had not been subjected to cross-examination, this omission vitiated the charge. A.Rahman vs. Crown. (1950) 2 DLR 285. -Where a prosecution witness had made a statement favourable to the accused before the com- mining Magistrate, but the witness was not traccable at the time of the Sessions trial, and was not examined, and where the accused's application asking that the witness's statement before the committing Magistrate be brought on the record "as a prosecution witness or as a defence witness" was rejected by the Sessions Judge on the prosecution plea that the witness was a hostile witness and, therefore, his evidence could not be admitted under section 33 of the Evidence Act. Held: The evidence ought, under the circum- stances, to have been brought on the record under section 33. Makhan Lal Vs. Emperor I PCR 116. -Where the Magistrate who held the test identification parade could not be available for examination in the Court of Session before three days from the date when his absence was being explained in the Sessions Court and the Sessions Judge merely al- lowed the Magistrate's evidence in the committing. Court to be put in under section 33, without giving adequate directions to the jury, and the circumstances of the case shows that it was important that the Magistrate should be available for cross- examination. Held: The Sessions Judge failed to give adequate directions to the jury with regard to the evidence of the Magistrate and the conviction was set aside, Kaloo Mandal Vs. Crown (1950) 2 DLR 307. -Adverse party-What it refers to. The expression "the adverse party" in section 33 is used to distinguish that party from "the party who calls the witness. A party calling a witness does not become "the adverse party" because the witness gives evidence which favours the adverse party or is hostile to the party calling the witness. Makhan Lal Vs. Emperor 1 PCR 116. -When the person who made the statement un- der section 164 Cr.P.Code, is himself an accused person in the case, the statement, if self- incriminatory, can only be proved against him. Pro- visions of sections 32 & 33 of the Evidence Act are not available to render such a statement admissible. Mst. Fazlan Vs. Crown (1956) 8 DLR (FC) 1 (13 r.h.col). -Evidence of an absent witness can- not be admitted unless conditions are ful- filled. The evidence of absent witnesses cannot be ad- mitted under section 33 unless the conditions laid down in the section are recorded which would justify the admission of evidence taken before the commit- ting Magistrate. Accordingly, a bare statement of witness that two of the police-officers concerned had opted for India and their present whereabouts were unknown cannot be regarded as sufficient to justify the admission of evidence under section 33 of the Evidence Act 53 CWN (DR) 98. -Dying declaration-Made elsewhere than at the police station, of more evidentiary value. Dying declaration made elsewhere than at a tha- na is more worthy of reliance than one made in the presence of the police when also the relatives who have brought the injured man to the thana are gener- ally present and usually can not be prevented from putting a prepared case through the mouth of the deponent. Ghulam Farid Vs. State (1966) 18 DLR (SC) 460. Evidence of a prosecution witness who died before he was tendered for cross-examination are not admissible under section 33 of the Evidence Act on the ground that he is dead. Syed Idris Vs. State (1972) 24 DLR 101. -The requirement of law is that the court before transferring the lower court evidence to sessions records under section 33 of the Evidence Act must be satisfied by proof of the conditions laid down in the section. State Vs. Abdul Hashem (1968) 20 DLR 834. Conditions laid down in section 33 of the Evidence Act are to be strictly proved in order that a statement made before the committing Magistrate is qualified to be transferred to the Court of Sessions. The statement made by Rahim Khan, P.W (who was not produced in the Sessions Court to tender evidence and whose absence has been excused under section 33) in the committing Court was transferred to the Court of Sessions in view of the following statement made by Aslam Chowkidar (P.W.9):- "Rahim Khan, P.W. has gone to Karachi in search of livelihood and his whereabouts are un- known." On the basis of his statement, the Public Prosecutor informed the Court that the whereabouts of Rahim Khan P.W, were not known. None was deputed to serve any summons on Rahim Khan. Held: The statement of Aslam Chowkidar is insufficient to show that any search was made to find out Rahim Khan, P.W. or any effort was made to procure his attendance. In absence of any other evidence on the file it is not certain whether unnecessary delay and expense would have been involved in the production of Rahim Khan in the trial Court. The conditions laid down in section 33 of the Evidence Act are to be strictly proved in order that a statement made before the committing Magistrate is qualified to be transferred to the Court of Sessions. Only such a person could make a statement of fact on that point as had been engaged in the task of searching for him for the purpose of serving the summons for his appearance. In the absence of any direct evidence that mere declaration that "delay and unnecessary adjournment" would be involved in pro- curing the appearance of the witness is not sufficient for satisfying the relevant condition of section 33 Farid Khan Vs. The State (1969) 21 DLR (WP) 49 -Evidence under section 33 cannot be brought on record after the examination of accused person under section 342 of the Code of Criminal Procedure. If any event is admitted from the evidence under section 33 of the Evidence Act and relied on it, it should be put to the prisoners during their examination under section 342 of the Code of Criminal Procedure. The State Vs. Dendu alias Deanat Ali (1969) 21 DLR 71. -Previous deposition of a witness can be tendered in evidence in a subsequent proceeding between the same parties when the other party had an opportunity of cross-examining him, when such witness could not be produced in circumstances stated in s.33. When a witness is not available but he previously has given evidence in a proceeding between the same parties involving the same issue or issues and the party had the right and opportunity to cross- examine him in the first proceeding, section 33 of the Evidence Act permits the previous deposition of such witness to be given in evidence in subsequent proceeding between the same parties. Proof of unavailability of the witness is however a necessary pre- requisite for the admission of former deposition. Salauddin Vs. State (1980) 32 DLR 227. Section 33—When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul and others vs State 47 DLR 486. Section-33 The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs’ vessel) who appeared before the Magistrate, 1st. Class, Marine Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court s relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. BIWTC Vs. Al-Falah Shipping Lines Ltd. & Ors. 6BLT(AD)-103 Section-34 read with Bankers Books Evidence Act, 1891; Section-4 Section 4 exempts a banker from producing bankers’ books namely ledgers day books, cash-books, account-books and any other books used in the ordinary business of a bank to prove its claims. Instead, it’ a bank shall produce a certified copy of any entry or entries in the books of the bank in a manner as provided by section 2(8) of said Bankers’ Books Evidence Act. Even when such certificate is produced and proved to have been so written that will not if so facto prove the claim of a bank. Such entries would have to be corroborated by independent evidence. BCCI Ltd. Vs. Bangladesh Electrical Industries Ltd. & Ors. 12 BLT(HCD)-502 The defence counsel's consent did not do away with the necessity of the Court being satisfied by proof on the requirements of section 33 of the Evidence Act. Allah Ditta Vs State (1959) 11 DLR (SC) 38: 1958 PLD(SC) 290 S.34.-Account books are not "valuable securities" and an entry in them cannot be the basis of charging a person with liability of what is noted therein. Although entries in an account book which might be signed by a constituent and may form the basis of charge against him in view of his acknowledging the liability and the correctness of the con- tents noted in that entry, an account book as such does not create any right, and any and every entry in the account book cannot be the basis of charging an accused with the liability of what is noted therein. Hence, account books are not valuable securities within the meaning of section 477 P.P.C. An entry in a book of account by itself does not create a right or constitute a liability. It is merely evidence of certain alleged facts and to that extent relevant evidence, under section 34 of the Evidence Act. The entry may or may not be correct. Radhaballav Das Vs. Santosh Ch. Saha (1960) 12 DLR 72: 1960 PLD (Dac.) 371. Conviction for an offence based on mere entries in the book of account, bad in law. Golam Mowla Vs. Chief Secretary of E.Pak. (1963) 15 DLR 125. -Entries in a book of accounts can be used as corroborative. Where entries in a book of accounts (of a firm of partners) were sought to be relied on as corroborating a witness's deposition in Court, the book not being a private book, the entries made in such a book can be accepted as corroborative evidence of the oral testimony of the witness. Makhan Lal Vs. Crown (1950) 2 DLR 223 Section 34-It was incumbent on the Courts below to properly scrutinise the material circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant's guilt. Osman Gani vs State 54 DLR (AD) 34. Section 34- Circumstantial evidence- When such evidence can be relied upon-Circum- stantial evidence relied upon by the prosecution must be cogent, succinct and reliable. The circumstances must be of an incriminating nature or character. All the proved circumstances must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. Mostain Mollah vs State 44 DLR 295. Section 34- The exception taken by the Counsel for non-examination of all or reasonable number of witnesses cited in the prosecution report is of no merit since it is for the prosecution to decide amongst the cited witnesses how many it will examine for establishing its case against the accused persons. Zahed Ali Foreman (Driver) vs State 56 DLR (AD) 29. Section 34- Circumstantial evidence-In a case based on circumstantial evidence before any hypothesis of guilt is drawn up on the circum- stances the legal requirement is to prove the circumstances themselves like any other fact beyond reasonable doubt. State vs Resalder Moslemuddin 61 DLR 310. Section 35-A seizure list, a post mortem report, a confessional statement recorded under section 164 of the CrPC or any statement of any person recorded under section 161 of the Code not being in public or other official book, register or record, they are not admissible under section 35 of the Evidence Act. State vs Ershad Ali Sikder 56 DLR 185. S.35-A register kept in the police station is a public document-A report entered in a register kept in the police station under section 155, Cr.PC.. in which reports of non- cognizable offences are recorded is a public document. Such a report is relevant under section 35,8 PLD (Lah) 293 -When an entry in a public document is a relevant fact. An entry in any public document, official register or records, stating a fact in issue or relevant fact, made by a public servant in the discharge of his official duties or by any other person in performance of a duty specially enjoined by law of the country is by itself a relevant fact. Kazi Mozaharul Hug Vs. State (1981) 33 DLR 262. Section—35 Entry in School Register — Its admissibility in evidence — Entry in School Register, Admit Cards and Board’s Certificate is that such Registers, Cards and Certificates are public documents, and are admissible in evidence, but the evidentiary value to be attached to the entries will vary from case to case. Abul Hashem (Bulbul) Vs. Mobarakuddin Mahmud; 6BLD (HD) 25O Ref. I.L.R. 14 (Lahore) 473; A.I.R. 1965 (SC)282 — Cited. Sections 35-When the cases, previous one and present one, arises out of same transaction or same fact, there is no reason that the evidence of the previous case cannot be used in the present case. The provisions of section 35 of the Act does not bar use of the evidence of the previous case in the present case. Giasuddin-al-Mamun (Md) vs State, 65 DLR 375 S.41-Civil suit by the wife for declaration that marriage between parties had been repudiated Criminal proceeding started by husband under section 498 P.P.C. Wife's application for stay of criminal case till the decision of the civil suit not maintainable-Civil court not a court of matrimonial jurisdiction within the meaning of section 41. Mst. Muni Vs. Habib Khan (1956) 8 DLR (WPC) 25. S.43-Judgment of Criminal Courts, to what extent admissible in civil cases. The findings of Criminal Courts are not admissible in evidence in civil suits. Recitals of admissions in the judgments in criminal cases are admissible in certain circumstances only but are otherwise inadmissible. A judgment of acquittal in a criminal case only decides that the accused had not been proved to be guilty by the Crown of the offences with which he had been charged and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between private parties, the opinions and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings. S.N. Gupta Vs. Sadananda Ghosh (1959) 11 DLR 470. -Judgment of another criminal case in respect of different charge not admissible even though the witnesses in both the cases are the same who have been disbelieved. The accused with several others were put on trial for illegal entry into Pakistan. The accused were further charged for possessing arms without licence under the Arms Act. The case against the accused was adjourned but the other persons were tried for il- legal entry into Pakistan and convicted by the trial Court. On appeal the Sessions Judge acquitted those person holding the prosecution witnesses deposed falsely. The accused was subsequently put on trial and he took up the defence that the prosecution case must fail both on the charge of illegal entry as well as under the Arms Act as the same set of witnesses who disposed against him has been disbelieved in the earlier case against the other accused and for this purpose wanted to utilise the judgment of the earlier Appellate Court in support of his contention. The trial Court convicted him on both the charges but the Appellate Court, on the ground that the witness having been found to have deposed falsely so far as the charge of illegal entry was concerned, acquitted him but maintained the conviction on the other charge. The question arose whether the judgment in the earlier case was admissible in the present case in relation to a conviction under the Arms Act. Held: Judgment of the earlier case which dealt with the charge for illegal entry is not admissible in the present case under the Arms Act. Neither the judgment is relevant under section 8 of the Evidence Act. Muhammad Khurshid Vs. State (1963) 15 DLR (SC) 102. An order under section 144 Cr.P.C. regarding possession cannot be treated as substantive evidence of possession. Criminal Court's finding regarding possession not conclusive. S.N. Gupta Vs. Sadanan- da Ghosh (1959) 11 DLR 470. -Finding of Civil Court not relevant-Finding of Civil Court not relevant in dispute with respect to same matter in Criminal Court 1956 PLD (Lah) 490. Section—43 Findings of the Criminal Court are not binding on the Civil Courts — An order under section 145 Cr. P.C. cannot be treated as substantive evidence of possession — A judgment of acquittal in a criminal case only decides that the accused has not been found guilty of the offence with which he had been charged but the opinion and the conclusion expressed in the judgment are not admissible in evidence in civil Courts. Akhtar Hossain Sharif and others Vs. Munshi Akkas Flossain and others; 3BLD (AD)334 Section—43 Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint-and other steps taken in connection there with is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD(AD)135 Ref.2IDLR (SC) 94; 2 C.W.N 501; 58 Indian Appeals 125: A.I.R. 1937(PC)69 — Cited. Section—43 Findings in the judgment of a criminal case — Whether can be relied upon in a subsequent civil suit between the parties — The findings and decision in a criminal case relating to the subject matter of the suit Scan n be relied upon — the fact that the accused was acquitted in a criminal case can be relied but not the opinion or conclusion expressed in such judgment. Md. Arshad Ali Vs. Abed Ali and other, 4BLD (HCD)150 Section—44 Benamdar — Whether a decree against a benamdar is binding on the real owner — Whether real owner can agitate in another suit that the decree obtained against his benamdar was fraudulent and not binding on him — It is now a settled principle of law that a decree on the ostensible owner is binding on the real owner — The plaintiff obtained the decree against the benandar fraudulently knowing full well that the real owner defendant was in possession — When a decree is obtained by the plaintiff practicing fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree — The real owner can avoid the transfer by his benamdar provided that no reasonable care was taken by the transferee in getting the transfer from the Benamdar — Transfer of property Act (IV of 1882) S.41. – Sultan Ahmed Vs. Md. Waziullah and others; 7BLD(HCD) 235 Ref. 24 DLR 63 — Cited. Section—44 Plea of Fraud—Under section 44 of the Evidence Act, whether it is competent for a party to a suit or proceeding to show that a document or a decree proved against him was obtained by fraud without having it set aside. Under section 44 of the Evidence Act it is competent for a party to a suit or other pro-ceeding to show in it that a document or a decree which has been proved against him by his adversary in that suit was obtained by fraud without having it set aside — When subsisting judgment, order or decree is set up by one party as a bar to the claim of the other, the latter can show that the judgment, order or decree was delivered by a Court without jurisdiction or was obtained by fraud, collusion and it is not necessary for him to have it previously set aside by a separate suit — A party to a proceeding is never disabled from showing that a document has been obtained by the adverse party by resorting to fraud. Abdul Gani Khan Vs. Shamser Ali and others; 12BLD (HCD) 90 Section 44- The date 30.05.1971 was written by different ink and different hand writing. From the report of delivery of possession, it appeared that, in fact, no delivery of possession was given and no witnesses were present during delivery of possession as there was no signature of any witness on exhibit 1(ka). Findings and decision arrived at by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Shamsul Alam Mia =VS= Sirajul Hoque & others, [1 LM (AD) 316] Section 44 For declaration of title and cancellation of dead ......(2) As the question whether the property is abandoned property or not has already been decided in that civil suit, the deci- sion is binding upon the Government. The present petitioner was not made re- spondent in Writ Petition No.165 of 1998 and it was not brought to the no- tice of this Court in that writ petition that there is a decision of the Civil Court about the nature of the property which was subject matter of that writ petition. In view of the above position, we are of the view that the petitioner cannot be evicted form the property in question." Md. Jahangir Alam vs. Md. Shamsur Rahman Sarder (S.K. Sinha J) (Civil) 8 ADC109 Section 44- Fraud vitiates a decree- The real owner's title will not be extinguished in any manner in a mortgaged property, even after passing a decree, if it is found that the mortgagors have no right, title and interest in the property mortgaged. Therefore, whatever decree the mortgagee will get, such the decree is subject to the mortgagor's title in the said property. Fraud vitiates a decree and the real owner can also ignore the decree under section 44 of the Evidence Act. Sekandar (Md.) -VS- Janata Bank Ltd., [3 LM (AD) 448] Section 45- The opinion of a doctor, unless supported by reliable evidence, does not carry any value. Siraj Mal vs State 45 DLR 688. Section 45- Opinion of expert evidence and opinion of expert deserve consideration like any other evidence but such evidence has to be received with great caution. Sheikh Salimuddin vs Ataur Rahman 43 DLR 18. Section 45-The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint, expert. State vs Raihan Ali Khandker 50 DLR (AD) 23. Section 45-The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand vs State 49 DLR 441. Section 45-Naither the finger prints forwarded to the expert were taken as per order nor in presence of the Court. Under the facts and circumstances conviction based solely on expert report is liable to be set aside. Sobha Rani Biswas vs State 52 DLR 293. Section 45-Medical evidence is only corroborative in nature, the ocular evidence of the eye-witness which substantially corroborates the major injuries on the person of the deceased be accepted. State vs Md Shamim alias Shamim Sikder 53 DLR 439. Section 45-Where the direct evidence is not supported by expert evidence, and evidence is wanting in the most material part of prosecution case it would be difficult to convict the accused on the basis of such evidence. Nepoleon Khondker alias Lepu vs State 54 DLR 386. Section 45-Medical evidence The mate- rial obtained on the swab must be preserved and forwarded for examination by the expert for the presence of human spermatozoa which is a positive sign of rape. It seems that the doctor examined the external part of the injuries of vagina and failed to make detail dissection so as to ascertain to prove the actual occurrence of rape. State vs Harish 54 DLR 473. Section 45-The evidence of an expert cannot alone be treated and used to form basis to find an accused guilty and to form basis of his conviction independent of the substantive evidence of the PWs in the case. Kalu Sheikh alias Kalam Sheikh and others vs State 54 DLR 502. Sections 45 & 73- The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section—45 Expert’s opinion — Value of — Opinion of an expert, such as a hand-writing expert, is only a relevant fact — The Court will certainly consider the expert’s opinion but it is the Court which alone will come to its own conclusion regarding the matter — An expert’s opinion, particularly that of a handwriting expert, is always received with great caution. Ekias Khan and others Vs. Prajesh Chandra Das and others, 7BLD (AD) 142 Section 45-The findings made in the impugned judgment and also in the case of Mohiuddin Khan Alamgir [15 BLC 107, Para 97] shall be deemed to have been modified in respect of the assessment made by the PWD officials in that the assessment of valuation of any property made by PWD officials shall have evidentiary value when no such assessment is made and accepted as correct by another independent department of the Government authorized in that behalf. State vs Faisal Morshed Khan, 66 DLR (AD) 236 Section 45-There may be a situation when there is no assessment of valuation by any competent authority of the Government exercising power in that behalf and in such a case, the Anti- Corruption Commission has no other option but to take the assistance of the PWD officials in making assessment of the valuation of any property. Therefore, it cannot be said that the assessment of valuation made by the PWD officials does not have any evidentiary value in all situations. State vs Faisal Morshed Khan 66 DLR (AD) 236 Section—45 Assessment or evaluation of the evidence of hand writing expert — Requirements of law as to plaintiff’s obligation to prove his own case — Court to come to findings on assessment of the materials on record. Evidence of an expert witness is of very weak nature — The evidence and the opinion of the expert deserves consideration like any other evidence but such evidence has to be received with great caution — In assessing or evaluating the evidence of a handwriting expert on the question of genuineness of a signature, the following facts must be kept in view : (1) very few people sign in the same manner on all occasions. (2) expert opinion of the genuineness of the signature should be received with great caution, especially in a case when there is positive evidence of persons who saw a person sign. (3) all the test evidence by the expert in the matter of comparison of hand writing and signature is merely tentative in character. (4) Opinion is weak evidence. (ii) Law requires that the plaintiff must prove his own case to the hilt by cogent and sufficient evidence—He cannot succeed merely on the weakness of the defence — Disbelief of the defence case ipso facto does not make the plaintiff’s case believable. (iii) The Court is required to come to a finding on assessment of the evidence on record that the plaintiff has been able to prove his case — The plaintiff must prove his case with sufficient evidence to obtain even an expaite decree in his favour. Sheikh Salimuddin Vs. Ataur Raharnn and others; 11BLD (HCD)386 Ref. 7 BLD (AD)142; IODLR(PC)l; 25 DLR(SC)90; 3 BLD(AD)225 — Cited. Section 45-Medical evidence is only corro- borative in nature-Ocular evidence of the eye- witness which substantially corroborates the major injuries on the person of the deceased must be accepted. Abdul Quddus vs State 43 DLR (AD) 234. Section 45- Deposition of a doctor giving certain opinion formed by examining certain facts is not an absolute truth. Abdur Rahman Syed vs State 44 DLR 556. Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23. Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441. Sections 45 & 73—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Sections—45, 47, 67 and 73 Mode of proof of hand-writing or signature—It is well-known that the Evidence Act has provided for the following 4 modes for proving hand-writing or signature of a person in any document namely: (1.) By proof of the signature or handwriting of the person alleged to have signed or written the document by evidence vide section 67 of the Evidence Act. (2.) By the opinion of an expert who can examine and compare the handwriting or signature in a scientific process vide section 45 as the Evidence Act. (3.) By a witness who is acquainted with the handwriting or signature of the person by whom the same is supposed to be written and signed, vide section 47 of the Evidence Act. (4.) Also by comparison of the signature or handwriting of the person with his other admitted and proved handwriting on signature by the Court it self vide section 73 of the Act. In the instant case when it is the duty of the plaintiffs to prove the identity and genuineness of the signature of the petitioner in thealleged document, the plaintiffs may avail of any of the methods as enumerated above — He or they cannot be forced by the defendants to resort to any particular method of proving the alleged signature. Shree Dulal Benerfee alias Moni Vs. Shree Sharat Chandra Pal and another; 12BLD (HCD) 277 Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23. Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441. Sections 45 & 73—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. S.45-Opinion of a finger-print expert. In his evidence the finger-print expert stated that he was trained in the Finger-Print Bureau of C.I.D. and he has given his reasons for arriving at the opinion. He stated in cross-examination that he examined all the ridges of the impressions sent to him but he compared only 18 ridges. The ridges beyond those 18 ridges were not compared by him. He could not say if the ridges beyond the 18 examined by him were identical between the two sets, but science states that if 18 ridges of one impression were found identical with those of others, it could conclusively follow that other ridges were also identical. Held: The opinion given by the expert is reliable. Rahimuddin Vs. State (1960) 12 DLR 453: 1960 PLD (Dac.) 975. -Accused may be convicted on the uncorroborated opinion of finger-print-expert provided the opinion is found by the Court to be correct. The Judge must apply his mind to the question whether it is correct or not. The expert must not only give his opinion but also record the grounds for such opinion at the time when he examines the impression and explain them to the Court in presence of the accused. Imtiaz Mia Vs. Crown (1955) 7 DLR 218. -The opinion of a certain number of witnesses that a photograph is not obscene is not the true test, or the correct method by which the obscenity of an object is to be decided, and the duty of determining obscenity must ultimately devolve upon the Court which will take into consideration the evidence be- fore it but which will ultimately be the judge of the question. Yakub Vs. State (1960) 12 DLR (WP) 45:1959 PLD (Lah) 172. Where the features relied upon are physical characteristics which are susceptible of examination by scientific methods, with a view to identification, or differentiation, it is advisable that such aids should be called in for the resolution of doubts, which in the absence of reliable direct evidence must necessarily attach to such features, regarded as evidence. It can only be in very rare case that mere vis- ual inspection with the naked eye, unaided by scientific training or methods, can afford the necessary degree of satisfaction. S.M.K. Alvi Vs. Crown (1953) 5 DLR (FC) 161 (184) -Empty cartridges stated to have been fired) from gun recovered from the possession of the accused-Not by itself sufficient to prove complicity in crime. 6 PLD (Lah) 179 -The evidence of a handwriting expert is usual- ly of a weak kind and it is unsafe to base a conviction thereon. Suptd. and Rememb, of L. Affairs Vs. Mozharul Hug (1954) 6 DLR 146. -Hand-writing expert-Opinion of- Admissible but a conviction cannot be sustained merely on the expert's opinion. Md. A. Quyum Vs. Crown (1951) 3 DLR (WPC) 30. -It is very dangerous to convict a person on the sole testimony of a handwriting expert. The ex- pert testimony, specially the opinion of hand- writing expert, must always be received with great caution. Md. Hasan Vs. Crown (1953) 5 DLR (WPC) 9. -As for the evidence on hand-writing, it would be extremely dangerous to rely entirely on the evidence of experts. (1952) 4 DLR (Bal) 1. -Handwriting-Presence of all peculiarities of a handwriting in the disputed handwriting does not by itself exclude possibility of the disputed hand- writing being forgery. Rafiq Ahmed Vs. State (1959) 11 DLR (SC) 91: 1958 PLD (SC) 317. -Digestion of food-Medical views not always correct. Shahidullah Khan Vs. State (1960) 12 DLR 537: 1961 PLD (Dac.) 1 -Expert opinion On matters which are with in the exclusive knowledge of medical experts, the opinion of Court should better be founded on expert evidence of some text book of acknowledged authority. Md. Sarfaraz Khan Vs Crown (1953) 5 DLR (FC) 280 Statement of doctor as to ago-Not supported by reliable evidence carries no value. Ghulam Quader Vs. Nur Ahmed (1954) 6 DLR (WPC) 178. -The evidence of a doctor as regards the age of a person is nothing more than an opinion of an ex- pert and is of little value unless it is corroborated by convincing material on the record. Ghulam Rasul Vs. Crown 2 PCR 225. -In a case of arsenic poisoning, the Chemical Examiner besides making his own tests, elicited in- formation from three doctors who had attended on the deceased, before and immediately after death, regarding symptoms observed, and the treatment undertaken by them in dealing with the deceased, the steps taken were not approved, the High Court re- marking: Perhaps it might have been more proper on the Chemical Examiner's part to have confined himself to his own examination. It is not fair to try to discredit the test made by an expert witness with reference to books with which he was not confronted during his cross-examination. 1956 PLD(Lah) 300. -According to section 45, it is for the Court to decide whether a person is qualified to give evidence as a medical expert regard to the point in issue before it 1950 PLD (Pesh) 19. The opinion of a doctor as to the age of a person is a relevant piece of evidence. It is, however, a different question as to what weight in a particular case ought to be attached to such an opinion. 1950 PLD (Pesh) 19. The evidence of eye-witnesses could not be rejected merely on the strength of some confused statements in the postmortem report about which the doctor was not questioned at all in Court. 1950 PLD (Lah) 90. -The opinion of an export is never binding on a Court. It is admitted in evidence only to help the Court in arriving at a correct decision. But it does not follow that the opinion of an expert is always correct. 1950 PLD (Lah) 507. -Physical examination of the girl by the doctor without subjecting her to scientific test not conclusive for determination of her age. Evidence brought on record is the evidence of Dr. Miss Surraya Hamiduddin. This doctor was examined as a Court witness, and her evidence is to the effect that the age of the girl on the date of the incident was about 17 years. The age of the girl had been determined by Dr. Miss Surraya Hamiduddin by physical examination of the body of the girl and her teeth. The girl had not been sent to any Radiologist nor were any X-ray photographs taken of her for the purpose of determining her age. The evidence of Dr. Miss Surraya Hamiduddin in these circumstances on the question of age will not be conclusive. Banney Khan Vs. State (1966) 18 DLR (WP) 28. Evidence of doctors-To what extent it can be relied on. A Court can either believe the prosecution evidence unreservedly or rely upon the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and inspires confidence. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion the only safe and judicial method of assessing evidence is the second method, i.e. medical evidence. Medical Officers, while giving their opinion in medicolegal cases do it as a mere formal duty with- out proper care and attention. The evidence of a medical expert, particularly of a doctor who had conduct- ed a post-mortem examination is a very important! piece of evidence in criminal trials and medical officers who are entrusted with this work should visualize that it is not a mere formal duty to give evidence in the Courts of law, but the real purpose is that a doctor should give a correct opinion to enable a Court to arrive at a correct decision. Sabir Hussain Vs. The State, (1969) 21 DLR (WP) 5 Handwriting expert's opinion needs very care. Tul examination and should be supported by corroboration to form basis of conviction. With regard to the evidence of a handwriting ex- pert the Courts have frequently observed that by it self it should not be made the basis of conviction and the Courts should look for corroboration. Though there is nothing in the Evidence Act which required the corroboration of the testimony of a handwriting expert before it can be acted upon, I am also of the view, if I may say so respectfully, that this evidence needs very careful examination and should also generally be supported by corroboration to be the basis of conviction in a criminal case. In the ultimate analysis if on comparison the Court reaches a firm and definite conclusion with regard to a particular writing even though that conclusion is against the opinion of the handwriting expert such a conclusion can prevail. Muhammad Umer Vs. The State (1969) 21 DLR (WP) 12. Examination of Doctor Mere filing of an application by the Public Prosecutor that the doctor concerned is away from the country cannot be permissible substitute for legal evidence as it does not fulfil any of the conditions laid down in law- Cr.P.CS. 509(A) Ataur Rahman and others Vs. The State,14BLD(HCD)391 Ref:: 37 DLR 157-Cited Expert's Opinion The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures of the petitioner in Ext.3 series were of the petitioner. Nurul Huq alias Md. Nurul Hoque Vs. The State, 18BLD (AD) 83 Opinion of the handwriting expert as to the authorship of the questioned writings or signatures is not infallible; on the contrary it is not a safe- guard for leading to any conclusion. Md. Shamsul Hoque Vs. The State (1968) 20 DLR 540. -Necessity of examining the doctor in court who held the post-mortem examination-Reliance on testimony of other witnesses in matters where expert's opinion- ion is necessary. Of late a tendency has grown to discard the testimony of seemingly reliable and natural witness to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While we appreciate the anxiety shown by the learned judges to test the credibility of the eye-witnesses with reference to the circumstances at tending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form a safe opinion on these matters. It is desirable, therefore, as observed by the Judicial Committee in Natha Singh Vs. Emperor to summon the doctor who examined the injuries or per- formed the autopsy as a witness and investigated the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert. Usman Khan Vs. The State, (1969) 21 DLR (SC) 194. -Weight which can be attached to expert's opinion considered when other authentic evidence conflicts with expert's opinion-An expert's opinion may be considered by the Court in forming its own opinion on the is- sue before it. Section 45 of the Evidence Act does not say that the opinion of an expert is binding upon the Court. The evidence of an expert is considered in order to enable the Court to come to a satisfactory conclusion. An expert giving his opinion must give reasons in support of his opinion and if the Court thinks that the reasons are not cogent or that there is other authentic evidence on the point and that evidence is in conflict with the opinion of the expert then the court is quite competent to prefer that evidence to the expert's opinion. Prafullah Kamal Bhattacharya Vs. Ministry of Home (1976) 28 DLR 123. Section 45 Seeking for a decree of specific per- formance of contract for sale of the land Md. Abul Hossain and others vs. Abdul Hamid Mandal and others (Mohammad Seeking declaration of title in respect of the land of first schedule and for recov- ery of khas possession in respect of the land of second schedule upon evicting first group of defendants and for declar- ing that the kabala described in the 4th schedule is fraudulent, fabricated, ille- gal and void and not binding on the plaintiffs. Md. Nazrul Islam and others vs. Monowara Begum and others (Md. Ruhul Amin J) (Civil) 4 ADC 838 Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23. Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441. Sections 45 & 73—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section 45 Respondent No. 1 instituted Other Class Suit No.3 of 1999 seeking declaration of title in respect of the suit land. The suit was dismissed by the trial Court. He took an appeal in the lower appellate Court and in the said appeal he filed an application for comparing the thumb impression of one Abdur Rashid ap- pearing in a deed dated 6th February, 1977, by which Abdur Rashid said to have gifted the suit land in favour of the defendant No.1, by a finger print expert. Kabir Ahmed vs. Korban Ali (S.K. Sinha J) (Civil) 9 ADC 749 Sections 45-51- District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act- The High Court Division was also wrong in relying upon the opinion of the so-called expert, i.e. the District Registrar, Dhaka by just making some query to him regarding the deed in question when he appeared before it. We brought the records of the civil revision from the High Court Division to see whether any statement of the so-called expert was reduced to writing, but we found nothing. The procedure adopted by the High Court Division does not have also any legal backing and by no means, the District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act. Mr. Bhuiyan also failed to point out any provision either from the Code of Civil Procedure or the Evidence Act to support the procedure adopted by the High Court Division. Whether the kabala in question was antedated nor not, in other words, genuine or not, is a question of fact and that had to be decided on the evidence adduced in the suit. But the High Court Division without considering the evidence on record took an unusual course to come to a fact as stated hereinbefore and thereby committed a serious error of law in passing the impugned judgment and order and as such, the same cannot be sustained in law and must be set aside. .....Zainal Abedin =VS= Mohammad Kala Miah, [4 LM (AD) 348] S.47-Acquaintance with signature obtained in the ordinary course-Enough. Under section 47 of the Evidence Act a person proving a document need not be personally acquaint- ed with the writing or signature of the writer of the document. It is enough if he becomes acquainted with them in the ordinary course of business. Supdt. & Remb. of L. Affairs. Vs. Muzharul Hoq (1954) 6 DLR 146. -Explanation-If details are not brought out in cross as to how a witness was acquainted with a man's handwriting-Testimony unchallenged to be accepted. When once a witness states in his examination-in-chief that he is acquainted or familiar with the handwriting of a person the details as to how he is acquainted with, being a matter of explanation to section 47 of the Evidence Act, is the duty of the cross-examiner. If no such cross-examination is done, it will be assumed that the competency of the witness was not challenged. Muhammad Sadiq Javeed Vs. The State (1969) 21 DLR (WP) 62. S.49-Witness deposing to words used by accused while accepting bribe-Witness's opinion as to meaning of words, not relevant. 1957 PLD (Lahore) 473. Section 50- Section 50 of the Evidence Act declares that "when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person, who as a member of family or otherwise, has special means of knowledge on the subject is a relevant fact". Illustration (a) to section 50 says; "the question is, whether A and B were married. The fact that they were usually received and treated as husband and wife, is relevant". This section says when the question arises as to the presumption of marriage, the opinion that makes relevant is opinion expressed by conduct as to the existence of such relationship and not merely as to that relationship. It is for the Court to weigh such evidence and to come to its own opinion as to the relationship in question. When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. Even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation forms often an important element in the status of valid marriage. A presumption of consummation is raised from the retirement of the husband and wife, i.e. there should be no third person at the place and that the place should not be a public one, like a public bath, public road, a mosque etc. Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage. The law permits no specific ceremony for the contractual performance of a marriage: and no religions rites are necessary for contracting a valid marriage. There are even opinions that a marriage may be constituted without any ceremonial and even in the absence of direct proof, indirect proof might suffice. The High Court Division, in the premises, erred in holding that mere living together as husband and wife did not bring it within the bound of marriage. Apart from acknowledgment by either party, if there is continual cohabitation between a man and woman as husband and wife, there is presumptive marriage and legitimacy provided that the parties were not prohibited from intermarrying. We find that the High Court Division has totally overlooked the presumption of a muslim marriage and relying upon paragraph 252 of Mulla's Mohammedan Law disbelieved the appellant's claim of marriage. If the High Court Division had considered paragraphs 254 and 268 of Mulla's Mohammedan Law, its decision would have been otherwise. The High Court Division based its decision on piecemeal consideration of Mulla's Mohammedan Law and arrived at a decision which is not supported by any of the authors of Mohammedan Law. It has tried to apply a doctrine of Muslim Marriage against the established schools of Mohammedan Law. Therefore, the decision of the High Court Division is based on a misconception of the basic principles of Mohammedan Law and thus the interference of the judgments of the Courts below is an error of law apparent on the face of the record. The evidence on record sufficiently proved that there was existence of legal marriage between the appellant and respondent.... Momtaz Begum(Mst.) =VS= Anowar Hossain, [10 LM (AD) 188] S.54-Evidence of bad character- Evidence of bad character of accused persons is not admissible in evidence in view of the provisions of section 54 of the Evidence Act. On such evidence the accused cannot be held to be collaborators within the meaning of Article 2(b) of P.O. No.8 of 1972. Abdul Aziz Vs. State (1981) 33 DLR 402. -When an entry in a public document is a relevant fact. Under the Law of Evidence an entry in any public document, official register or records, stating a fact in issue or relevant fact, made by a public servant in the discharge of his official duties or by any other person in performance of a duty specially enjoined by law of the country, is by itself a relevant fact. Kazi Mazharul Huq Vs. State. (1981) 33 DLR 262. Section 55-It is necessary that the testimony of interested witness must be viewed with high decree of caution and the Court should also look for independent corroboration. Pashan Ali vs State 60 DLR 602. Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section—57 Judicial Notice of a period of general dislocation — Momentous changes took place when Benches of the High Court Division were established outside the capital — the cases arising from Barisal were initially sent to the Jessore Bench and then after the establishment of the Barisal Bench, to Barisal — It was a period of general dislocation of which judicial notice should be taken. Mvi. Md. Keramat Ali and another Vs. Syed Munsur Ali and others; 11BLDAD97 S.57(7)-Signatures of gazetted officers-The Court will recognize them without proof-When a sanction for prosecution purports to have been given under the signature of a gazetted officer, the Count would take judicial notice of the signature of the officer. Nurul Huq Vs. State (1956) 8 DLR 562: (1958) 10 DLR 328. Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 57- Courts can take judicial notice of the ordinary course of events- Courts can take judicial notice of the ordinary course of events. That a matter is judicially noticed means that it is taken as true without the necessity of being formally proved on evidence. Taylor in his Law of Evidence states that a man is not the father of a child, where non-access is already proved until within six months of the woman's delivery. Nor is it necessary to prove the course of the heavenly bodies, or the like, that a matter is judicially noticeable means that it is taken without offering of evidence by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. A proclamation of emergency is a matter of general information of which a court can take judicial notice. A matter of public history may be such a fact (Wigmore section 2567). Facts of which judicial notice may be taken are not limited to those of the nature specifically mentioned in clauses (1) to (13) of section 57 of the Evidence Act.... (Surendra Kumar Sinha, J)......State VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Sections 57 & 60-The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154. Section 57, 81, 78(2)- The Court may take judicial notice under Section 57 of the Evidence Act certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary. A report in a news paper or magazine is only hearsay evidence. It is not one of the documents referred to in section 78(2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuiness attached under section 81 to a magazine report cannot be treated as proof the facts reported therein. (Per S. K. Sinha, J) ... Major Md. Bazlul Huda(Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386] Sections 58 and 90- The revisional Court could not re-open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence. The Appellate Division observed that the High Court Division observed that the plaintiff could not produce any single document of title, showing his acquisition of right, title and interest in the suit property. The plaintiff also failed to prove its possession in the suit land by producing any witness in support of its claim. The High Court Division concluded that since the question of title and possession had been finally decided by lower appellate Court, the revisional Court could not re- open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence. The High Court Division also noted that the defendant's applications to get lease of the suit tank could not be a ground for passing a decree in favour of the plaintiff, who must establish his own case in order to succeed. .....Sylhet Pourashava =VS= Purnendu Bikas & others, [1 LM (AD) 69] S.59-Reliance on oral evidence of the interested witnesses in utter disregard of the principle of law of evidence deprecated. Abani Mohan Saha Vs. Asstt. Custodian (1987) 39 DLR (AD) 223. Ss.59, 62-Basis of oral testimony is registers but it is not known why primary documentary evidence was with held by prosecution during trial. Abdul Majid Vs. State. (1987) 39 DLR 414. Best evidence rule-Primary evidence is the best evidence affording the greatest certainty of facts. Abdul Majid Vs. State. (1987) 39 DLR 414. To establish charge of criminal breach of trust distinct proof of criminal misappropriation is necessary. Abdul Majid Vs. State. (1987) 39 DLR 414. Entrustment or dominion over the property implies handing over the property-But evidence disproved handing over. Abdul Majid Vs. State. (1987) 39 DLR 414. -The learned judge relied much on moral conviction than on legal testimony. Abdul Majid Vs. State. (1987) 39 DLR 414. S.60-Oral evidence as to the existence of any material thing supplemented by an order to produce that thing in Court for inspection. Section 60 of the Evidence Act embodies the second important rule about oral evidence, viz. that it must in all cases be direct. Second proviso to section 60, however, provides that if oral evidence refers to the existence or condition of any material thing the Court may require the production of such material thing for its inspection. Phani Bhusan Halder Vs. State (1975) 27 DLR 254. Section 60-There is no evidence that the victim made any statement as regard the incident to anybody other than PW 8. So the claim of PW 4 that victim stated to him about the incident of setting fire in her body by the condemned convicts can hardly be considered reliable. State vs Babul Hossain 52 DLR 400. Section 60-PW 1 has not implicated the accused with any overt act on the basis of charge but reiterated the statement as to derivative knowledge of involvement as mentioned in the FIR and in the charge-sheet which is an inadmissible evidence. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287. Section 60-Hearsay evidence In the absence of examination of Abdus Sattar, the Evidence of PW I narrating the story as was told by the former is inadmissible in evidence. Akhtar Hossain vs State 44 DLR 83. S.62. Please see s. 59 in the matter of Abdul Majid Vs. State (1887) 39 DLR 414 Supra. S.63-Secondary evidence of forged document-Though by production of a copy secondary evidence of the contents of a document might be said to be given, secondary evidence of a forged document itself would not thus be given in evidence, Sanmukh Sing Vs. King (1951) 3 DLR (PC) 3. In Nowabul Alam and others vs The State, 1995 BLD (AD) 54 = 45 DLR (AD) 140 the trial Court convicted 10 accused on a double murder charge and sentenced four of them to death and six others to life term imprisonment relying on some eyewitnesses (PWs 2, 3 and 5) who were relations to the victims. One of them was also injured witness. Their evidence was corroborated by two other prosecution witnesses, namely, PWs 4 and 11. There were six circum- stantial witnesses (PWS 1, 6-8 and 10-11) who saw the assailants to run away from the place of occurrence with deadly weapons in their hands. In that case prior to lodging the formal FIR there was a GD made at the instance of PW 4, but no name of the assailants was mentioned. High Court Division on the resultant death reference commuted the death sentence to life. imprisonment of the four and acquitted the six. Ultimately the Appellate Division in a majority. judgment acquitted the rest four relying on the cases of Hamida Bano vs Ashiq Hussain and others, 15 DLR (SC) 65; Ali Ahmed vs State, 14 DLR (SC) 81 and Masalti vs State of Uttar Pradesh, AIR 1965 (SC) 202 where Mustafa Kamal, J (as his lordship then was) observed: "The principle that is to be followed is that the evidence of persons falling in the category of interested, interrelated and partisan witnesses, must be closely and critically scrutinised. They should not be accepted on their face value. Their evidence cannot be rejected outright simply because they are interested witnesses for that will result in a failure of justice, but their evidence is liable to be scrutinised with more care and caution than is necessary in the case of disinterested and unrelated witnesses. An interested witness is one who has a motive for false implication of an accused person and that is the reason why his evidence is initially suspect. His evidence has to cross the hurdle of critical appreciation. As his evidence. cannot be thrown out mechanically because of his interestedness, so his evidence cannot be accepted without critical examination. (para 17) In the case of Bangladesh (State) vs Paran Chandra Baroi, BCR 1986 (AD) 225 victim Nikhil Chandra Bala was killed in broad day light at 9-30 am allegedly in presence of his wife and two others (PWs 4-6). There was admitted long standing enmity between the parties. On information received by the police a GD was recorded with no name of assailant. A Sub-Inspector of Police rushed to the PO and held inquest on the dead body, met the eyewitnesses and prepared a report where nobody mentioned the names of the accused. The trial Judge on consideration of evidence convicted accused Paran Chandra Baroi and sentenced him to death. In the resultant death reference and a jail appeal preferred by him the third Judge of the High Court Division on critical appreciation of evidence doubted the truthfulness of the eye-witnesses, considered the omission of his name in the inquest report and acquitted him of the charge. In so doing learned third Judge of the High Court Division relied on three cases of Indian jurisdiction one reported in AIR 1978 SC 1558 and two in AIR 1975 SC 1252, 1962. On appeal the Appellate Division affirmed the judgment of the High Court Division and observed: "It will be seen that the learned Judges started doubting the prosecution case because, as referred to above, the Investi- gating Officer wrote in the inquest report that the names of the culprit or culprits would be available from his relations later on. In other words till the time of making inquest at 2-00 pm on the date of occurrence nobody apparently disclosed the name of the respondent or any other person to the IO as the killers of Nikhil although all the eyewitnesses met the Investigating Officer at or about the time of inquest." (para 15) In the case of Abu Taher Chowdhury and others vs The State, 1991 BLD (AD) 2 = 42 DLR (AD) 253 as cited by Mr Shajahan five accused were put on trial on a murder charge under sections 302 and 34 of the Penal Code. In that case victim Zafar was killed in the night following 29-4-1984 and after exhaustive search on the next day his dead body was found in a tank 250 yards away from his house, victim's father lodged FIR at about 3-00 pm strongly suspecting three of the accused. Most of the witnesses of fact were present, when the 10 came to the place of occurrence and stayed there up to 11-00 pm, but none of them made any disclosure to him. Subsequently PW 3 made a statement before the Upazila Nirbahi Officer under section 164 of the Code of Criminal Procedure claiming himself to be an eyewitness and deposed in trial in the same line. His father PW 10 corroborated his evidence in part. Some other witnesses also claimed that they had seen the accused around the place of occurrence at the material time. There was admitted enmity between the principal accused and their uncle Abdul Bari Chowdhury (PW 17), employer of PWs 3 and 10. Trial Court convicted all the accused and sentenced one to death and four to transportation for life. On the resultant death reference and appeal by the convicts, the conviction was upheld by the High Court Division but the death sentence of one was commuted to transportation for life. The Appellate Division critically reappraised the evidence, and disbelieved the eyewitness and ultimately acquitted all the five accused by a majority judgment relying on the cases of Taleb vs State, 19 DLR (SC) 135 and Abdur Rashid Khondkar vs Chandu Master and others, 16 DLR (SC) 605 where Shahabuddin Ahmed, CJ discussed the inconsistencies, improbability and absurdities of the main witnesses and observed: "...Explanation of PW 3 for not disclo- sing the matter when the dead body was recovered or when he moved with the Daroga in the place of occurrence, is his mortal fear of the accused. Neither of these explanations is worthy of any credit; the only reason that may be attributed is that their story is an afterthought and product of a dress-rehearsal given by the IO for 8 hours." (para 17) "...no critical examination of the deposition of the witness has been made and whatever they have said in examination-in- chief has been accepted as gospel truth" [para 18 (a)] In Khaleda Akhter vs State, 37 DLR 275 a question was raised as to whether a video cassette was a document and admissible in evidence within the scope of the Evidence Act. In replying the question ATM Afzal, J (as his lordship was then) relied on AIR 1968 SC 147 and accepted it as an admissible evidence if otherwise relevant. In the said case of Khaleda Akhter the person who recorded the video was examined. In State vs Md Rafiqul Islam alias Shakil and seven others, 70 DLR 26 objection was raised to admissibility of some video footages, paper clippings and still photographs of the news of occurrence on the grounds that the respective journalists/photographers were not examined. A Division Bench where one of us was the author Judge considered the footages as evidence under the particular facts and circumstances of that case observing that the said footages were officially supplied to the Detective Branch of Police by the respective TV channels and handed over to the Investigating Officer under a seizure list. The seizure list and official correspondence were duly proved. In an unreported decision in Criminal Miscellaneous Case No. 27276 of 2012 (Joynal vs The State) heard and disposed of with a bunch of cases arising out of common judgment and order, a Division Bench where two of us were parties discussed some cases of the Appellate Division including Abdul Quader Chowdhury and others vs The State, 28 DLR (AD) 38 and observed: "...it is clear that the High Court Division sitting on an application under section 561A of the Code can see whether 'the evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge'. It is needless to say that without re-examination and independent assessment of evidence, no Court can arrive at any such finding of fact. In other words, the High Court Division is fully competent to re- examine and assess the evidence indepen- dently sitting on an application for quashing a judgment and order of conviction in exceptional circumstances for securing the ends of justice." Evidence Act (I of 1872) Sections 62, 63, 65 and 74 In order to prove a private document the original needs to be produced and proved unless a case of secondary evidence is made out. According to section 62 of the Act original document is primary evidence and secondary evidence is replica of the original one, which is more particularly described in section 63 thereof. In certain cases replica of private document can be adduced as secondary evidence under the provision of section 65. [73 DLR (2021) 514] Section 63- Photostat copy of its original being the secondary evidence is admissible in evidence. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500 Sections 63-If a true copy of a document is proved by the maker on oath giving explanation that the original is missing from the record, it satisfies the requirement of secondary evidence within the meaning of section 63 of the Act. Where secondary evidence of the contents of a document alleged to have been destroyed/ untraceable is admitted by the court of first instance without objection, even without any foundation for the reception of secondary evidence having been laid down, the opponent is estopped from taking any objection to the admissibility of such documentary evidence in the appellate Court. Even oral evidence of the contents of the original document can be proved when the original is admitted to have been lost. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Sections—65 and 66 Admissibility of certified copy of an application — Original called for from the custody of the person granting the copy bi the original not produced — In view of clauses (a) (c) of sections 65 and 66 of the Evidence Act the certified copy of the application is admissible in evidence. Indus Ali and others Vs. Abdul Jabbar Mia, 3BLD (HCD) 258 Evidence Act [I of 1872] Sections 65C and 79 Certified copies being admissible when the originals are lost, the burden of proof was on the defendants to disprove the genuineness of the certified copies filed by the plaintiff-petitioner and as such, the judgment of the High Court Division is not sustainable. [(2022) 25 ALR (AD) 44] Section—65 Secondary evidence — Question of admissibility without formal proof — Though no objection was raised when the secondary evidence in the Photostat copy was produced, the party producing it was not exempt from explaining why its original was not produced — If the original is not available, the reason for non-availability must be given. Hazi Waziullah and others Vs. Additionial Deputy Commissionier, Noakhali and others; 9BLD (AD)135 Ref. 20 DLR (SC)205; — Cited. Section 65 We do not dispute the statement of law argued in the case cited by Mr. Mah- mudul Islam. The submission that this document having been marked as ex- hibit without objection became admis- sible in evidence, is a general rule and the same principle is not applicable in all cases. This rule disentitling a party to object to the admissibility of second- ary evidence in appeal, when no objec- tion was taken in the Court of first instance can not have universal applica- tion. The rule contained in section 65 which excludes secondary evidence is not so rigid as to be enforced even if no objection is taken at the trial by the party against whom the secondary evi- dence is offered. Zafela Begum vs. Atikulla (S.K. Sinha J) (Civil) 8 ADC 907 Section—65 Award in respect of a property — When cannot be considered — The original of the alleged award having not been filed in the Court the true copy of the alleged award cannot be considered. Chan Jun Talukder and another Vs. Ching Neshazy Magni and others, 9BLD (HCD)10 Section 65(c)-Where a party can show that non-production was not due to his own default or neglect, secondary evidence would be admissible under this clause to adduce secondary evidence. It is not enough to show that the party who wants to use it cannot produce it because it was not registered. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 66-A confession made by an accused in connection with another case is found to be relevant in connection with other case and if the offences committed in course of the same transaction and if the confession has been duly recorded in accordance with law. Secondary evidence after fulfillment of the requirements of section 66 may be adduced to prove the confession and if the person making the confession is accused in both or all the incidents of commission of offences. Mufti Abdul Hannan Munshi @ Abul Kalam vs State, 69 DLR (AD) 490 Sections—67 and 68 Presumption of genuineness of a registered kabala — In the absence of proof of its due execution a registered kabala by itself does not raise any presumption of its genuineness. Abdul Malek Sarkar Vs. Govt. of Bangladesh; 3BLD(HCD)1 70 Secitons 67 and 68-Registration, attaches a statutory presumption which extends to the registration of the deed only. Such presumption is never intended to extend to the genuineness of the transaction or to prove execution and/or recitals in the deed. Kamaluddin vs Md Abdul Aziz 56 DLR 485. Sections—67 and 68 Execution and attestation of a will — I-low is to be proved — Due execution of a will means not only that the testator executed it by putting his signature or affixing his mark but also it requires that the testator executed it in sound mind, fully knowing the nature and effect of his action — It must be proved that the testator had the testamentary capacity’ at the time he put his signature or thumb impression on the Will — The requirements of sections 67 and 68 of the Evidence Act must be fulfilled. Paresh Chandra Bhowmik Vs. Hiralal Nath and another, 4BLD (AD) 199 Evidence Act (1 of 1872) Section 67 Any call list/information of a private phone company printed on a plain paper without any seal or signature of the person who generated it, production of such document in Court by a third party and making it exhibit do not have the value of legal evidence. Its authenticity must be proved in line with the provisions of section 67 of the Act. The call lists in question as such cannot be considered as legal evidence....... (63) [73 DLR (2021) 514] Sections—67 and 68- Proof of execution of a document — Whether Registrar’s endorsement is conclusive proof of execution — The certificate of a Registrar although raises a presumption as to the admission of execution by the executant yet such admission cannot be the evidence of due execution against third persons — The execution of a document is required to be proved in the manner provided by sections 67 and 68 of the Evidence Act. Abani Mohan Saha Vs. Assistant Custodian Vested Property and others; 7BLD (AD) 306 Section 68, 79 Without serving any notice under Sec- tion 89 of the State Acquisition and Ten- ancy Act, 1950 and without her knowledge the petitioner being a married women lived with her husband and came to know about the sale when she on Nayor came to her paternal house on 10.03.1980 and thereafter definitely learnt about it on obtaining certified copies of the deeds of sale and filed the pre-emption cases on making deposit of value of case land as per deed with 10% compensation as required by law and total quantity of land held by her would be far less than 100 bighas. Md. Mur- tuza Ali vs. Renu Bibi alias Saifurnessa (Md. Abdul Matin J) (Civil) 6 ADC 508 Section 68- Will This suit was for a declaration that the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996 is not binding on her; that she is the lawful owner of the properties specified in the schedule on the basis of the Will dated 12.03.1980 executed by Ramaiah in her favour. The High Court held that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law with the evidence adduced by her and hence she was entitled for a declaration as claimed by her in the suit relating to the suit properties. Plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will. H.V. Nirmala =VS= R. Sharmila, [4 LM (SC) 26] Sections 73 & 45—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Sections 73 & 45—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. S.73-Thumb impressions and signatures-Comparison. Thumb impressions and specimen signatures under direction of the Court-Unobjectionable in law, Bishu Sheikh Vs. State (1957) 9 DLR 626 Comparison by Courts of signatures in Courts with the admitted signatures Unsafe to base a conviction on such comparison. Nurul Hug Vs. State (1958) 10 DLR 129. Section—73 Comparison of handwriting and signature by the Court — Court’s power to examine disputed signature is not restricted but the power should be exercised with great caution as an arbitrary exercise of the power may lead to miscarriage of justice Only in appropriate cases the Court may exercise its enabling power where the Court finds that the exercise of this power is necessary in the interest of justice. Syed Nurul Flossain and another Vs. Salema Khatun & another; 1BLD(HCD)474 Ref. 10 DLR 129; 49 C.W.N. 481; 26 C.W.N. 113; 64 C.W.N. 1067—Cited. Section—73 Comparison of handwriting by Court—Whether conclusion arrived at by comparison of hand writing or signature by the Courts below can be interfered with by the High Court Division in Second Appeal — Comparison of signature with admitted signature is a question of fact — High Court Division is not to interfere with the conclusion of the First Appellate Court on such question — Comparison of signature is a perfectly legal mode of proving hand-writing and, however inconclusive such proof may be, it cannot be considered as an error of law to base a conclusion on such proof alone — High Court in second appeal is not competent to set aside a finding based on such method — Code of Civil Procedure, l908(V of 1908) S. 100 (repealed). Abdul Matin Chowdhary Vs. Chapala Rani Sen and others; 5BLD (AD) 172 Sections 73 & 45-The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section—73 Expert’s opinion—Whether it is better to have and come to a decision, particularly in case of L.T.L It is true that the Court itself can compare any signature or L.T.1. of any concerned person himself under section 73 of the Evidence Act and come to a decision, but it is better to have an expert’s opinion also, particularly in case of L.T.1. Sk. Abul Qasem and others Vs. Mayez liddin Mondal and others; 12BLD (HD) 161 Ref. 28 D.L.R. 123; A.I.R. 1928(P.C.)277 —Cited. Section 73- Provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the ad-mitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment. ...Shawkat Hossain(Md.) =VS= Golam Mohammad, [8 LM (AD) 51] Section 73- Remand the case for fresh trial Reported in 8 BLC (AD) 67. This Division held in that case "in case of contentious writing, signature, etc., though provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the ad-mitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or, in other words, unsatisfactory and dangerous procedure and the desired course should be to go for microscopic enlargement and expert advice since the science of examination of signature, writing, etc. for determination of similarity has advanced enough and it has reached to the stag, of accuracy and certainty as well as expertise skill is also available." Considering the facts and circumstances of this case we are of the opinion that the disputed signature of the defendant No. 1 in the alleged bainapatra-the exhibit-1 should be examined and com-pared with some admitted signatures of the defendant No. 1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate court below. The appellate court will send the alleged bainapatra along with some admitted signatures of the defendant No. 1 to a hand writing expert for his opinion as to the genuineness of the disputed signatures of the defendant No. 1 in the alleged bainapatra-the exhibit-1 and after receiving the hand writing expert's opinion the appellate court below will dispose of the appeal afresh in accordance with law. ...Shawkat Hossain(Md.) VS Golam Mohammad, [8 LM (AD) 51] Section 73 The court to compare and scrutinize the disputed signatures with the admitted signatures under provision of section 73 of the Evidence Act but the appellate Court has fallen in an error in holding that such comparison of the disputed signatures by the court along with the admitted signatures is not always save. It was the duty of the defendant to get the same proved otherwise by obtaining an opinion of the hand writing expert. Anu Miah vs Gauranga Chandra Sharma (Sved J. R. Mudassir Husain. J) (Civil) IADC 462 Section-73 Handwriting expert opinion as to the identity of the disputed signatures and initials on a questioned document—Contention than the opinion of the handwriting expert is preferable to the court’s exercising the power under section 73 of Evidence Act which is to done very cautiously and the said course is hazardous and inconclusive was rejected— petition dismissed. It is true that long line of decisions have expressed divergent views and one view is that the Court should not take such hazardous steps for expressing any opinion and another view to the contrary. In the context of two views, a Judge naturally hesitates to exercise the power conferred by section 73 to compare handwriting by using his own eyes. This is more so whenever evidence is scanty unreliable or there is no evidence of hand-writing expert but these are mere words of caution. There is no hard and fast rule which prohibits such course by the Judge. The privy Council itself compared the disputed signatures with admittedly genuine signature in Monindra Vs. Tshalaxmi Bank, A. I. R. 1945 P.C. 150 and the same was followed in A.I.R. 1949 PC 325. Mr. Gafur strenuously urged that this court should lay down the law. This contention does not appeal to us in view of the fact that the proceeding is still pending in the Court below and sufficient guidance has been given by the long line of decisions for the Court which do not warrant any further pronouncement. Nitai Chand Shah. & Ors. Vs. Md. Aga. Khan & Ors. 1BLT (AD)-46 Section-73 In the instant case the court by the impugned order allowed comparison of the disputed signature of the plaintiff on the solenama with the specimen signatures of the plaintiff and the signature of the plaintiff on the registered sale deed dated 23.10.1983. The plaintiff petitioner raised serious objection on the ground that the genuineness of the registered sale deed dated 23.10.1983 was challenged in Title Suit No. 334 of 1992 Held: Comparison of disputed nature L.T.I cannot be done by the Expert with the said registered document which is not admitted or proved to the satisfaction of the court. Dinesh Chandra Deb Vs. Dulal Chandra Karmaker & Ors 9BLT (HCD)-202 Section 73 The Land Adminstration Board compe- tent to pass the order challenged in the suit. Resorting to the unsatisfactory and dangerous' mode of comparison of the contentious signature or writing with the admitted writing or signature and there- by arriving at the 'national view' seems to be'. "Appears to be'. May be assumed to or 'perceiving' or guessing probabili- ty of being similar to the admitted writ- ing or signature without the aid in evidence of microscopic enlargement and any expert advice and then stacking judgment thereon is not only risky but unsafe too and consequent thereupon there is serious chance of error in the final decision. Tarak Ghandra Majhi vs Atahar Ali Howlader (Md. Ruhul Amin. J) (Civil) IADC 481 High Court Division is quite competent to make direction to the person perform- ing functions in connection with the affairs of the Republic or of a local authority to refrain from doing thing not permitted by law or to do something required by law to do and that for the purpose of effective compliance of the direction so given the High Court divi- sion is quite within its jurisdiction to make further direction to see that its direction is being executed or to make its Direction effective. M/s Micro Electronic Limited vs M/s Rahimnafroz Batteries Limited (Md. Ruhul Amin J(Civil) IADC 485 Section-73 Opposite party Mossammat Zinnatunnessa categorically denied that she put her thumb impression on each and every page of the alleged deed of gift—Held: I am of the view that in the facts and circumstances of the case it is better to have an expert opinion as to the execution of thumb impression of the opposite party on the alleged deed of gift. It is true that the expert opinion is not binding upon the court to decide as to the genuineness of thumb impression so I am of the view that the opposite party will not be prejudiced in any way if the prayer for expert opinion is allowed. Rather, expert opinion enables the court to come to a satisfactory conclusion. Md. Abdul Hashem Mizi Vs. Most. Zinnatunnessa & Org. 8BLT (HCD)-110 Section-73 It is well settled that Section 73 of the Evidence Act permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous. Zohra Khatoon & Ors. Vs. Ekramul Haque Chowdhury & Ors. 10BLT (AD)-171 Section-73 The Point at issue to be decided was as to whether the deed of Hebabil-ewaz was genuine or not and therefore trial court directed the signature/thumb impression appearing in the deed in question to be compared with that of the admitted thumb impression appearing in another. There is no illegality in that order. Md. Sadequl Islam Sarder Vs. Saimuddin Sarder & Ors. 12 BLT (AD)-73 Section 73 It is well-settled that when both the par- ties have led evidence question of onus is out of place and matter is to be decid- ed on the evidence led by the parties. Herein both the lower appellate court as well as the High Court Division consid- ered the evidence on record adduced by both the parties and came to a concur- rent finding that the defendant-appellant was a monthly tenant under the plain- tiffs-respondents and that the tenancy stood determined by forfeiture. Muhammad Ishaque vs Ekramul Hauge Chowdhury (Mohammad Gholam Rabbani J) (Civil) 2 ADC 50 Section-73 It strikes necked eyes that 17 endorsements were written on 3/4 seating. Name of defendant no.1 on so called acknowledgements as written on 01.01.1987; 31.01.1987; 18.02.1987 and 23.02.1987 appear to be of the same pen and ink; those on 13.06.1987 and 19.07.1988 appear to be of another pen and ink, those of 03.05.1986, 28.05.1986 and 16.07.1986 of different pen and ink and those of 13.07.1986; 19.07.1986 and 23.04.1987 were still of another pen and ink. We have examined the signatures on the acknowledgements with the admitted signature of defendant no.1 on the agreement, exhibit-2 and we do not have any hesitation to say the signatures on the acknowledgements do not tally with the admitted signature of defendant no. 1. Saroj Kanta Sarker & Ors. Vs. Seraj-ud-Dowla & Ors 12 BLT (HCD)-28 Section-73 In case of contentious writing, signature etc. though provision of section 73 of Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course in our view for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or in other words ‘unsatisfactory and dangerous’ procedure. Tarak Chandra Majhi Vs. Atahar Ali Howlader & Ors 13 BLT (AD)03 Section-73 Trial court resorted to the mode as provides in section 73 of the Evidence Act and thereupon comparing signature in the pass port (Ext.14) and in the Power of Attorney (Ext. 1 ‘ka’) with the signature appearing in the deeds of October 27, 1969 held the document of October 27, 1969 forged. The mode so resorted to by the trial Court was erroneous since identity of the plaintiff Jatindra Mohon Roy whose signature claimed to be in Ext. 14, and Ext. 1 (ka), was not established in the background of the contention of the defendants that the said plaintiff is a fictitious Jatindra Mohon Roy and not the real Jatindra Mohon Roy who transferred the property in suit by the deeds dated October 27, 1969 to Ali Ahmed Khandker and Wali Mohammad Siddiqui. The High Court Division concurred with the finding and decision of the trial Court as regard the deeds dated October 27, 1969. Since the finding of the trial Court that by the deeds of October 27, 1969 plaintiff Jatindra Mohon Roy did not transfer the land in suit was arrived at on the basis of inadmissible evidence and upon resorting to a made whereof there was no basis, as such the said finding of the trial Court and the High Court Division was not legally sustainable. A N M W Nabi & Anr Vs. Md.Balai Roy & Ors. 15 BLT (AD) 27 Section —73 It is true that the Court itself can compare any signature or L.T.I. of any concerned person himself under section 73 of The Evidence Act and come to a decision but it is better to have an expert’s opinion also, particularly in a case of L.T.I. Md. Chand Miah & Ors Vs. Md. Ibrahim & Ors. 15 BLT (HCD)306 Section 73 The defendants filed Other Suit No. 11 of 1993 challenging the order of disso- lution dated 13.1.1993 of the said com- mittee praying for a declaration that the said order of dissolutions dated 13.1.1993 was illegal.... (4) Sarder Md. Hashim Zaman & others vs. Thana Nirbahi Officer (Md. Joynul Abedin J) (Civil) 5 ADC 193 Section-73 The Superior Courts warned and cautioned the Court not to be venture to compare the disputed signature with admitted signature as an expert and give its opinion where the dispute in the subject matter in the subject matter is based upon the genuineness of the writing or signature in a deed. The Superior Courts held that the task held that the task of examination of hand writings being a very technical one which should be left with the expert opinion evidence, who by applying scientific method comes to the opinion whether the signature or writings is that of the person by whom it purports to have been written, which cannot be done by comparison with naked eyes by the Court. Namita Rani Biswas & Ors Vs. Rabindra Nath Majhi & Ors 15 BLT (HCD)493 Sections 73 & 45—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88. Section 73 The respondents herein, as plaintiffs, filed Other Suit No.110 of 1994 in the 2nd Court of Joint District Judge, Nil- phamari against this present petitioner seeking partition of their joint property. The case of the plaintiffs, in short, is that the divisible property originally be- longed to Md. Hussain who acquired the same by virtue of purchase. Madina Khatun vs. Humaira Khatun (Nazmun Ara Sultana J) (Civil) 9 ADC 425 Section 73 Declaration that the registered kabala deed No.3473 dated 01.08.1987 pur- portedly executed and registered by the plaintiff-petitioner in favour of the de- fendant-opposite party was forged, void, inoperative and was not binding upon the plaintiff. Abdur Rashid Bepari vs. Soleman Ali (Md. Abdul Matin J) (Civil) 6 ADC 139 Section 74 Plaint is a Public document. Swarupa Banu & Ors Vs. Ankura Begum & Ors 15BLT(HCD)118 Section—74 Whether a passport could be accepted as a conclusive evidence. The plaintiff to prove his date of birth being 2.1.1946 has produced his passport Ext. 3 issued under the signature of the Deputy Assistant Director, Immigration and passports. Government of Bangladesh, Dhaka on 16.2.1997 and the date of birth as mentioned in the passport is 2.1.1946. This passport being public document could be accepted as a conclusive evidence to prove the date of birth of the plaintiff in the absence any other reliable, documentary evidence. Md. Ruhul Amin Vs. Latif Bawani Jute Mills Ltd. & Ors. 14 BLT (HCD)361 Sections-74 and 76 read with Transfer of Property Act, 1882 Section- 123 It is the case of the respondent that the deed of gift has been registered. The production of the original deed of gift by the donee and other documents such as mutation paper, municipal record would have indicated that the same has been acted upon. But neither the original deed of gift nor the original lease deed of Dr. Ansari nor any mutation paper nor any municipal record have been procured to prove the claim of the respondent in view of the aforesaid we hold that the High Court Division Misdirected itself in holding that when there was registered deed of gift the respondent has a genuine and strong claim over the property. Bangladesh & Anr. Vs. Mrs. Shirely Anny Ansar 9BLT (AD)-185 Ss. 74, 76 Public documents--Disagreeing orders of Division Bench of High Court-Case referred to a third Judge. Accused applying for copies of Division Bench orders-Copies could not be re- fused on the plea that orders were mere expressions of opinions not amounting to the judgments. Fazlul Quader Chowdhury Vs. Crown (1952) 4 DLR (FC) 104 (107 rt. h. col.). Section—74 Compare of signature or hand writing — Whether- Court should compare the disputed signature with the admitted signature to come to a decision — reliance by the lower appellate Court on his own comparison of the disputed signatures disregarding and in preference to the positive evidence by an expert is highly unsatisfactory, dangerous and imprudent in a judgment of reversal and such judgment without proper reasons results in an error in the decision on merits occasioning a failure of justice — Code of Civil Procedure, 1908 (V of 1908), S. 115. SK. Anseruddin and others Vs. Usha Raid Ghose; 6BLD (HCD) 26 Ref. A.I.R. I 928(PC)277; A.I.R. I 954(SC) 320; A.I.R. 1979 (SC) 14; 5BLD (AD) 172 —Cited. Section—74 Whether plaint of a suit is a public document — Whether certified copy of the plaint is admissible in evidence — The plaint of a suit as soon as it is registered by a judicial officer within the meaning of clause (iii) of sub-section (1) of section 74 of the Evidence Act and as soon as it forms part of the record of the judicial officer it is a public document. Certified copy of such document is therefore admissible in evidence. Reazuddin and another Vs. Azimuddin and others; 7BLD (HCD)16 Ref. 19 DLR349; PLD I 967(Lahore) 1051; A.I.R. 1940 (Mad)768; 36 DLR(AD)248; 27 DLR 398: 29 DLR(SC)268; 92 IC. 18 S.74 A fingerprint-slip containing a record of convictions and the finger-prints of the convict is a public document prepared in pursuance of a statutory duty cast upon police officers under the Identification of Prisoners Act, 1923, and the rules contained in the Police Finger-print Bureau Manual, and is, there- fore, admissible in evidence under section 74 of the Evidence Act. The certificate appearing at the bot- tom of the finger-prints is sufficient to prove that the finger-prints are of the person who suffered the previous convictions recorded in that finger-print slip. Md. Ashraf Vs. State (1960) 12 DLR (WP) 27. Dib-Reports in a register in the police- station-Public document. A report entered in a register kept in the police- station under section 155 Cr.P.C. in which reports of non-cognizable offences are recorded is a public document, within the meaning of section 74. 8 PLD (Lah) 293. Sections 77, 78, 78(6) & 86- A foreign judicial record is a public document A public document may be proved by production of the original or by a certified copy under section 77 or in the manner prescribed in section 78. A foreign judicial record is a public document and may be proved by a copy certified in the manner prescribed by sections 78(6) and 86. of the Evidence Act. Reference in this connection is Haranund Chetlangia V. Ram Gopal Chetlangia, 27 IA 1 (PC) and AIR 1964 SC 538. RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1] Section 78- S.S.C Certificate authentic Unless there is any compelling reason or unless better and more reliable documentary evidence is produced, the information appearing on the S.S.C Certificate must be taken to be authentic- An S.S.C. Certificate showing the date of birth of the candidate is a valid legal document and the information contained therein is deemed to be authentic. So much so that the date of birth given at the time of sitting for the S.S.C. examination and the date of birth shown in the S.S.C. Certificate is taken to be an official reliable record and such information cannot be readily changed. The S.S.C. certificate having been produced in 1997, the BADC should have questioned its genuineness, failing which they are bound to accept the information regarding the writ petitioner's date of birth as stated in the said certificate. We are of the view, therefore, that unless there is any compelling reason or unless better and more reliable documentary evidence is produced, the information appearing on the S.S.C Certificate must be taken to be authentic. .....Bangladesh Agriculture Development Corporation =VS= Md. Abdus Salam, [4 LM (AD) 63] Section 78(6)- Duplicate copy of the Certificate The authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan Learned Counsel wanted to give an explanation to the effect that the petitioner applied for a duplicate copy earlier but he did not receive the same until November, 2015. This claim has no basis at all since the alleged certificate was issued in 2012. More so, there is no statement at all in this regard in his application. Assuming that he applied earlier for duplicate copy of the certificate it was allegedly issued on 22nd May, 2012. There was no explanation why he did not produce it prior to 16th November, on which date, he filed it in the section. Therefore, no reliance could at all be attached on this certificate it is a forged document which is apparently created for confusing this Court. Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan. (Para-07); Salauddin Quader Chowdhury -VS- The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 571] Section 79, 77, 65(e) The question of admissibility of Ext.A. B and C did not arise at all in as much the sale deeds were executed and regis- tered during the pendency of the pre- emption case and the appellate court, the final court of facts, having found that the sale deeds were collusively created in the name of fictions persons reversed the finding of the trial court to the effect that the pre-emptors having already exhausted their right, title and interest in the case holding by those sale deeds, they had no right for pre-emption. Abdul Wazed Sharif vs. Shudhir Ranjan Biswas (Md. Tafazzul Islam J) (Civil) 5ADC 108 The owner of the property challenged the action of the Government in treating the property in question as abandoned property and finally it was adjudicated that the property is not an abandoned property. (2) Pubali Bank Ltd vs. The Government of the Peoples Republic of Bangladesh. (Md. Ruhul Amin J) (Civil) 5ADC Section-79 and 114 Whether the deed, exhibit-I. Ekrarnama can he held to he not proved for non- examination of the scribe and the other attesting witness. The exhibit I, Ekrarnama is a registered deed. So, there arises under Sections-59 and 60 and 114 (illustration e) of the Evidence Act a presumption that it was duly presented and registered by defendant 3. Such presumption is. however, rebuttable. But no evidence in rebuttal of such presumption was adduced by the defendant 1 and 2 ,Even, they did not take any step to examine defendant 3 who could have come to the court and denied to have executed the Ekrarnama. The Ekrarnama would then have a decent burial. A licensed deed writer PW-2 on oath testified that the deed was written before him be the scribe, Amir Bux and executed by the defendant 3. The plaintiff also deposed in the same line on the writing of the deed and its execution Sections-67 and 68 of the Evidence Act provide for proof of signature, handwriting and execution of a deed. Ekrarnama is not required to be attested under the law. Even, then it was attested by two witnesses. Any attesting witness can prove the writing and execution of the deed. The appellate court did neither discard nor disbelieve the evidence of PW-2 Abu Backkar Siddique. I also do not find any reason to disbelieve the evidence on the writing and execution of the Ekrarnama. In view of the law and the evidence as stated above, why the execution of Ekrarnama, exhibit I should not be held to have been proved is not understood. So without discarding and or disbelieving the evidence of PW- 1 and 2 and considering the relevant laws, the appellate court erred in law to hold that the plaintiff failed to prove the Ekrarnama. Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8BLT (HCD)-238 S.80-Presumption as regards compliance with the provision of law while recording a complaint under section 200 Criminal Procedure Code. A presumption arises that the statement of a complainant was recorded in the presence and hearing and under the personal direction and superintendence of the Magistrate. Anwar Mahmood Vs. Rashidizza- man (1959)11 DLR (WP) 77 1958 PLD (Lah) 196. -Endorsement that the deposition had been read over-Presumption applied. The provisions of section 80 will apply to a case where it appears that the usual endorsement that the deposition had been read over and explained was only recorded on the deposition itself, but where not- withstanding such endorsement, the question is raised specifically upon affidavit that the presumption raised by the endorsement was not correct and there had been an omission to read over and explain the deposition. Held: In such a case the presumption under section 80 applied and the endorsement must be taken to be true unless the contrary was established. Sabiri Bala Vs. Ashaqu Munshi (1956) 8 DLR 154. -Failure to read over the evidence to the accused-Not duly recorded. The words "only recorded" in section 288 Cr.P.C. carry wider significance than the words "taken in accordance with law" in section 80. Failure to read over and explain the evidence, in the presence of the accused. Held: Evidence not duly recorded. Wazed Ali Vs. State (1956) 8 DLR 269. -Court of Record's record-Of no higher value. Section 80 confers no higher probative value ,upon the records of a Court of Record than of any other Courts how low-soever, viz. that the courts shall presume their correctness until the contrary is established. Fazal Elahi Vs. Crown (1953) 5 DLR (FC) 44 (86 rt-h. col.). -A confession recorded by a Magistrate in compliance with the provisions of sections 164 & 364 Cr.P.Code shall be presumed that all the ingredients of s. 80 Evidence Act fulfilled. When the confession has been recorded in accordance with law by observing all the formalities pre- scribed by law (i.e. by observing all the formalities prescribed by sections 164 and 364 Cr.P.C) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran Ali alias Md. Emran Vs. State (1985) 37 DLR 1. -Two requirements for admitting a confession into evidence. The two requirements for admitting such a confession into evidence as a self-proved document are (1) that it was taken in accordance with law and that (2) the identity of the accused who made the confession has been satisfactorily proved before the Court. Emran Ali alias Md. Emran Vs. State (1985)-37 DLR 1 Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83 Section 80—It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212. Section 80-Nonexamination of the Magis- trate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman vs State 49 DLR 83. Section 80-It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer vs State 46 DLR 212. Section 80-It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80-It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das vs State 51 DLR 466. Section 80-Presumption as to confession- Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the acts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to There must not be any reason for doubt as to the truth of he statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD) 186. Section 80-In the attending facts and circumstances of the case when the veracity of the confessional statement is questionable, the same enjoys no presumption of correctness under section 80 of the Evidence Act. Belal alias Bellal vs State 54 DLR 80. Section 80-High Court Division wrongly applied the provisions of section 80 to admit into evidence a statement of a witness recorded under section 164 during investigation stage and not in a judicial proceeding. Hossain @ Foran Miah vs State 56 DLR (AD) 213. Section 80-It is true no child was produced and examined by the prosecution during trial by the defence but it does not render the prosecution unbelievable as contended. In this case, factum of release of child Feroze and Emran in the custody of their mother, and release of child Haider to his father on their production before the Magistrate, Dinajpur by order dated 5-6-97 is a matter of record and this fact has not been challenged by the defence. As such, Courts shall presume the correctness of the record until the contrary is established according to the provision of section 80 of the Evidence Act. Naimuddin vs State 59 DLR 314. Section 80-The Court is required to see not only that the forms under sections 164 and 364 of the Code of Criminal Procedure were complied with but the substance underneath was equally adhered to. There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In the circumstances it is difficult to deny the accused an opportunity to cross-examine the Magistrate who allegedly recorded the statements. Sadeque vs State 61 DLR 498. Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83 Section 80—It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212. Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83 Section 80—It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212. Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305. Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section—80 Examination of the recording Magistrate It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53 Section—80 Memorandum by Magistrate conducting TI. Parade—Not admissible in evidence Memorandum recorded by the Magistrate conducting T.I. Parade is not a judicial proceeding and as such it is not admissible under section 80 of the Evidence Act, unless the Magistrate deposes before the Court and proves it. Non-examination of the Magistrate who held the T.I. Parade renders the memorandum drawn by him inadmissible in evidence. Md. Mizanur Rahman alias Miza alias Mizan Vs The State, 17BLD(HCD)82 Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 S.84-Lack of proof of motive and other attending circumstances in the com- mission of the crime cannot be accepted as a valid plea to absolve the accused. That may be a factor to reduce the gravity of the crime from one u/s.302 to one u/ 5.304 of the Penal Code. In view of the standard of proof required by law under section 84 of the Penal Code read with section 105 of the Evidence Act, a mere lack of proof by the prosecution of a motive for the offence, cannot be a substitute for the positive proof required of the defence for its plea of insanity. Merely from the char- acter of the crime, its suddenness, cruelty, atrocity and apparent absence of motive, it cannot be presumed that the offender must have been insane at the time of its commission. It would be extremely unsafe to admit such plea and it would amount to condoning the crime because of its atrocity. Absence of motive or premeditation will not, however, absolve the accused of the crime but will bring down the charge under section 302 of the Code to one under Part I of section 304 of the Penal Code. Abu Nasir Bhuiya Vs. The State(1978)30 DLR 275. Section – 86 From Ext.3 it transpires that the contract on the basis of which the suit was filed in the Munsif Court, Krishananagar was written by one Nagendra Nath Ghose and the attesting witnesses to the contract belonged to the members of Nagendra Nath Ghose’s community and all of them were citizens of India. But the plaintiff in his evidence in the present suit stated that one Azimuddin Biswas was scribe of the agreement for exchange and Moksed and Moizuddin were attesting witnesses. Thus it appears that the plaintiff instituted the present suit on the basis of a different contract which he could not prove by adducing either documentary or oral evidence and the contract on the basis of which Shibnath Ghose and others filed Title Suit No.17 of 1961 in the Court of Munsif, Krishananagar, as it appears, was on the basis of a different agreement. Md. Abdul Mannan & Ors. Vs. Abdus Samad Mondal & Ors. 14 BLT (AD)198 S.88-Presumption under section-Limited to terms of message transmitted-Presumption as to person by whom such message was delivered for transmission-Expressly prohibited. 1956 PLD (Lah) 949 Section 90- Presumption– As per provisions of Section 90 of the Evidence Act there is a presumption in favour of a thirty years old original copy of a registered deed which is sub- mitted in the court from proper custody. ..(22) The exhibited copy of thirty years old registered document dated 05.01.1923 is being an original copy and produced before the court from proper custody as such the presumption infavour of deed no.112 dated 05.01.1923 is that the said deed is a genuine one. In such a situa- tion the onus of proof of the allegation of the plaintiffs regarding lending money by taking signature in blank stamp and thereafter used the same to create forged document by the prede- cessor of the defendant nos.67 and 68 lies upon the plaintiffs. .........(23) It appears that the witnesses produced by the plaintiffs are not independent witnesses and their testimony does not prove possession of the plaintiffs. Furthermore, plaintiffs failed to pro- duce any documentary evidences to prove their claim regarding possession. ......(32) Kabala dated 09.07.1923 (exhibit-'ga') proves that the predecessor-in-interest of the plaintiffs cultivated the suit land as bargadar of Shushila Sundari i.e. the predecessor-in-interest of the defen- dants and thus they admitted posses- sion of the defendant's predecessor-in- interest. Moreover, defendants filed rent receipts (exhibit-'n' and In-1') in Sreemoti Radha Rani Ghosh vs. Jashimuddin Molia (Borhanuddin J) (Civil) 20 ADC 441 ধারা ৯০–অনুমান–সাক্ষ্য আইনের ৯০ ধারার বিধান অনুযায়ী একটি ত্রিশ বছর বয়সী নিবন্ধিত দলিলের মূল কপির পক্ষে একটি অনুমান রয়েছে যা সঠিক হেফাজত থেকে আদালতে দাখিল করা হয়েছে। ..(২২) 05.01.1923 তারিখের ত্রিশ বছর বয়সী নিবন্ধিত নথির প্রদর্শিত কপিটি একটি মূল কপি হওয়ায় এবং সঠিক হেফাজত থেকে আদালতে দাখিল করায় 05.01.1923 তারিখের দলিল নং ১১২ এর পক্ষে অনুমান হল যে উক্ত দলিলটি একটি আসল। এই পরিস্থিতিতে ফাঁকা স্ট্যাম্পে স্বাক্ষর নিয়ে অর্থ ধার দেওয়ার এবং পরবর্তীতে বিবাদী নং ৬৭ এবং ৬৮ এর পূর্বসূরি কর্তৃক জাল দলিল তৈরির জন্য একই ব্যবহার করার বিষয়ে বাদীপক্ষের অভিযোগ প্রমাণের ভার বাদীপক্ষের উপর বর্তায়। .........(২৩) দেখা যাচ্ছে যে বাদীপক্ষ কর্তৃক উপস্থাপিত সাক্ষীরা স্বাধীন সাক্ষী নয় এবং তাদের সাক্ষ্য বাদীপক্ষের দখল প্রমাণ করে না। তদুপরি, বাদীপক্ষ দখল সম্পর্কিত তাদের দাবি প্রমাণের জন্য কোনো প্রামাণিক প্রমাণ দাখিল করতে ব্যর্থ হয়েছে। ......(৩২) 09.07.1923 তারিখের কবালা (প্রদর্শনী-'গ') প্রমাণ করে যে বাদীপক্ষের পূর্বসূরি সুশীলা সুন্দরী অর্থাৎ বিবাদীদের পূর্বসূরির বর্গাদার হিসাবে মামলার জমি চাষ করত এবং এইভাবে তারা বিবাদীর পূর্বসূরির দখল স্বীকার করেছে। তাছাড়া, বিবাদীরা শ্রীমতি রাধা রানী ঘোষ বনাম জসিমউদ্দিন মোল্লা (বোরহানউদ্দিন জে) (দেওয়ানী) ২০ এডিসি ৪৪১-এ ভাড়ার রশিদ (প্রদর্শনী-'ন' এবং ইন-১') দাখিল করেছে। Section 90- 30 years old documents- The plaintiffs have been successful in proving their genealogy of title and possession in the suit land and since the defendants failed to challenge the documents relied upon by the plaintiffs and also failed to prove their case of title and possession, it can clearly be held that the defendants have no title and possession in the suit land. On the other hand the plaintiffs could prove the title of Yeasin Hazi, the C.S. recorded tenant and thereafter devolution of title and possession upon his daughter Duburunnessa who in her turn transferred the same to Khodeza Begum by two registered documents in 1955 and 1956 which are more than 30 years old documents and relying on such registered documents Khodeza Begum's name being recorded in the S.A. record and thereafter Zumuruddin, the predecessor of the plaintiffs having purchased the same got his name mutated in place of Khodeza Begum in the office of the Government, and after his death his heirs, the plaintiffs having got their names mutated, the title and possession of the plaintiffs are found to be proved....... Bangladesh Railway =VS= Jashimuddin, [5 LM (AD) 58] Section 91 In a suit for permanent injunction the primary question for determination is the possession of the parties who is seeking the decree for permanent injunction and the matter of title of such party in the land in suit is incidentally gone into. The question of possession on the establishment whereof the suit could only be decreed, even though title of the land in suit may of the plaintiff, which though in instant case not. The trial Court on detailed discussions of the evidence brought on record from the side of the plaintiff and upon assigning reason for non-accepting the evidence of the wit- nesses examined by the plaintiff on the question of possession made the finding that plaintiff failed to prove her posses- sion in the land in suit. Md. Abu Alam vs. Zarina Begum and others (Md. Ruhul Amin J) (Civil) 4ADC 257 Section 91 In a suit for permanent injunction the primary question for determination is the possession of the parties who is seeking the decree for permanent injunction and the matter of title of such party in the land in suit is incidentally gone into. The question of possession on the establishment whereof the suit could only be decreed, even though title of the land in suit may of the plaintiff, which though in instant case not. The trial Court on detailed discussions of the evidence. brought on record from the side of the plaintiff and upon assigning reason for non-accepting the evidence of the wit- nesses examined by the plaintiff on the question of possession made the finding that plaintiff failed to prove her posses- sion in the land in suit. Md. Abu Alam vs. Zarina Begum and others (Md. Ruhul Amin J) (Civil) 4 ADC 257 Sections 91 and 92 The suit was filed seeking declaration that the deed of exchange dated March 21. 1993 is not a deed of exchange but a deed of sale. Abdul Majid alias Mujibur Rahman Molla vs. Md. Abdul Matin and others (Md. Ruhul Amin J) (Civil) 4ADC 56 Section 91, 92 When the terms of a contract or of a grant, or of other disposition of proper- ty, have been reduced to the form of a document no evidence shall be given in proof of the terms except the document itself, or its secondary evidence where permissible. Md. Mosharraf Hossain vs Daulat Ahmed (Md Ruhul Amin, J) (Civil) IADC 445 Section 92- Specific performance of contract to execute the sale deed- We find that the High Court Division correctly observed that the appellate Court admitted into evidence the bainanama of defendant No. 1 but did not at all consider the same and against such non-consideration the defendants did not take any step. We also find it curious that the bainanama of defendant No. 1 having been allegedly executed in the year 1983 the agreement was not put into effect until almost 10 years later, and there was no explanation why such a delay occurred. In any event the lower appellate Court in allowing the appeal of the defendants in the suit did not take into consideration the alleged bainanama of the year 1983. Furthermore, the High Court Division correctly referred to the provision of section 92 of the Evidence Act and held that the oral and extraneous evidence contradicting the contents of a written instrument is not admissible. We do not find any illegality or infirmity in the impugned judgement and order of the High Court Division. Accordingly, the appeal is dismissed, without however any order as to costs. ...Gopal Goyala VS Molina Rani(Sree). [9 LM (AD) 9] Evidence Act [I of 1872] Section 92 The Patta dated 04.03.1947 was produced from the custody of the plaintiffs and the endorsement on the back of the Patta showing that the Patta was returned on receipt of the money, and the fact that it was torn at the top indicates that the transaction was a mortgage and not a sale or settlement. The Appellate Division notes that the case cited above was of the district of Khulna and the present case is of district Satkhira, which was at that time within district Khulna. In that case the defendant borrowed Rs.1000/- from the father of the plaintiff but a kabala was drawn up on account of the provisions of the Bengal Money Lenders Act. In pursuance of an oral agreement, the defendants paid back the entire consideration money of Rs.1000/- to the plaintiff's father in the presence of a Salish and he returned the land and the kabala on 4th Baishak, 1361 B.S. and endorsed as such on the back of the kabala. Abdulla, J. sitting in the High Court Division observed that the lower court had rightly referred to the provisions of section 92 of the Evidence Act, but held that the document as a whole, including the endorsement is required to be considered by the Court. The fact of the oral agreement was written in the document as it was presented before the Court. His Lordship also considered that the number of documents produced by the defendants to show that the transactions were in fact mortgages and that, that was the practice in the locality is quite sufficient. The present case being of the same locality, we are of the view that the practice of endorsing return of consideration money on the back of the deed of transfer is sufficient to indicate a mortgage. It is not a case of oral evidence contradicting the terms of a written document. Here, the term of the Patta deed is amended by written endorsement which has been signed by the maker of the endorsement. Moreover, the endorsement on the back of the Patta is supported by the witness to the endorsement, namely, Md. Abdul Aziz Mulla (P.W.3) and the fact that the original Patta with the endorsement was returned to the predecessor of the plaintiffs is evidenced by the fact that it was produced in court from the custody of the plaintiffs. The Appellate Division notes the half-hearted attempt of the defendants while cross examining P.W.1 to prove that the Patta deed was cleverly taken by P.W.1 from D.W.1 at the settlement office. This was not supported by the sole witness of the defendants, namely D.W.1. In view of the above discussions, the Appellate Division finds merit in the appeal, which is accordingly allowed. [(2022) 25 ALR (AD) 38] Old Document Code of Civil Procedure [V of 1908] Section 115(1) read with Evidence Act [I of 1872] Section 90 Mere filing of a rent receipt or a private document without formal proof thereof and without proving the contents of such documents cannot fulfill the requirements of law. The patta Ext.2 is more than 30 years old document has come before the Court from proper custody and certainly carried a legal presumption of due execution and correctness under section 90 of the Evidence Act. A Court of revision under section 115(1) CPC can interfere with the findings of fact, as has been arrived at by the appellate court below as being the final Court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non-reading and misreading of the material evidence or misconstruction of any important documents affecting the merit of the suit. It appears to the Appellate Division that the trial Court appointed an Advocate Commissioner who inspected the suit land and submitted a report on 31.10.2000 which has been accepted by the trial court on 05.05.2003 in a modified form after rejecting the objection raised by the defendants. The Advocate Commissioner reported that there are as many as four shops on the suit land. The plaintiff Nur Jamal while deposing as PW1 stated that he constructed four shops and rented them out to four persons, namely, Asharf, Aminul, and Jogodish for performing their. business as shopkeepers. Thus, it appears that the Commissioner's report corroborated the oral evidence of PW1 which directly supported the plaintiff's title and possession. But the learned Judge of the Single Bench of the High Court Division without adverting those evidence on record made the Rule absolute holding that the plaintiffs have hopelessly failed to prove their case. The Appellate Division hold the view that the finding of the learned Judge of the Single Bench of the High Court Division and as well as the trial Court below are shockingly perverse and those are vitiated by non reading of the material evidence and misconstruction of evidence on record affecting the merit of the cases. Thus, it appears that the learned Judge of the Single Bench of the High Court Division without properly assessing the evidence on record arrived at a wrong decision and thereby set aside the finding of the appellate Court below, which is liable to be interfered with. Accordingly, the Appellate Division finds merit in the appeal. Thus, the appeal is allowed without any order as to costs. The impugned judgment and order delivered by the learned Judge of the Single Bench of the High Court Division is set aside and the judgment and order passed by the appellate Court below is restored...(27-30) [(2022) 25 ALR (AD) 43] Section-90 Once such a document more than 30 years old is produced from proper custody Section 90 of the Evidence Act entitles the Court to presume that it is a genuine document. A.D.C. (Revenue) Vs. Md. Reazuddin PK & Ors 8BLT (AD)-185 Presumption as to documents The benefit of the presumption as to document more than 30 years old applies to any document and not necessarily only to registered document Hence, the presumption under section 90 of the Evidence Act is applicable in the case of the amalnama of the year 1926. The appellate Court did not reverse the finding of the trial Court with regard to the amalnama being accepted as genuine as it was a document more than 30 years old. [73 DLR (AD) (2021) 124] Section-90 Exhibit I being supported by exhibit 6 being an age old document of over 30 years. It had presumptive value under Section 90 of the Evidence Act and the Exhibit 1(ka), the certified copy of the original sale deed being admitted in evidence without objection in the trial court and as such no objection can be raised at his stage challenging the legality and propriety of the said certified copy of the sale deed. At the same time in the written statement the defendants have taken burden of proof that the certified copy of the sale deed. Exhibit 1(ka) as forged and fraudulent but the defendants failed to prove the same and as such the certified copy of an old document of over 30 years old having presumptive value under Section 90 of the Evidence Act admissible in evidence. Exhibit 1 (Ka) cannot be thrown out of consideration and rent receipts being filed by the plaintiffs are the collateral evidence of their possession being followed by title. Md. Sadek Uddin Chowdhury & Ors. Vs. Md. Anowarul Haque Chowdhury & Anr. 11BLT (HCD)-72 Section-90 That the legal presumption of 30 years old document by virtue of provision of section 90 of the Evidence Act is rebuttable. The mere fact that a document is 30 years old does not make it immune from attack by the other side on the question of its genuineness. Md. Biseruddin Sardar & Ors Vs. Md. Tofazzal Hossain Biswas & Ors. 15 BLT(AD)47 Sections-91 & 92 Section-91 of the Evidence Act is about the manner of proof of a document which has been reduced to the form of a document and which is required by law to be reduced to the form of a document. The document itself has to be proved, or where secondary evidence is admissible, secondary evidence of its contents may be proved. The terms of the document cannot be proved by any other mode of proof. The impugned kabala has been proved under Section-91. Sections—91 and 92 Evidence —Its admissibility in a preemption case — No evidence is admissible to vary the contents of the documents by any oral evidence — In a pre-emption case it is the transfer which is sought to be pre-empted. Jaynal Abedin Molla Vs. Aliar Rahmax and others; 3BLD (AD) 105 Sections—91 and 92 Admissibility of oral evidence? In a pre-emption case sale or exchange can be decided — Whether evidence can be adduced to prove that the document is not what it purports to be When the disputed Kabala is between stranger to the document in question and a party thereto, there is no bar in leading oral evidence to prove that the document in question is not what it purports to be but when it is between the parties to the document such evidence is not admissible — There is no error of law in holding that the transaction is an exchange and not a sale and as such exempted from preemption — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96 Brindaban Das and another Vs. Ershad Ali Mondal, 6BLD (HCD)85 Ref. 17 DLR 15; 26 DLR(SC) 59; 35 DLR(AD)230; A.I.R. 1958 (SC)448 — Cited. Sections—91 and 92 Admissibility of oral evidence — Whether a sale deed can be declared a mortgage deed solely on oral evidence — Oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible — It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto — Evidence of the witnesses that the document is not a sale deed but is a mortgage deed is clearly inadmissible. Mrs. Feroza Majid and another Vs. Jiban Biina Corporation, represented by its Managing Director, 7BLD(AD)124 Ref. 27 l.A. 58 — Cited. Sections—91 and 92 Exclusion of oral evidence—Admission of oral evidence of the acts and conducts of the parties in determining the true nature of the transaction does not infringe upon the provision of section 92 of the Evidence Act — it can be shown by oral evidence that though a document in a particular form was executed, in fact it is different from what it appears to be — When a document is meant merely as an informal memorandum of transaction and not as a document embodying disposition of a property, oral evidence is not excluded. A.M. Abul Kashim Vs. Nasiruddin Ahmed and others; 8BLD (HCD) 33 Ref. 37 DLR 87 — Cited. Sections 91 and 92—Documentary evidence- Exclusion of oral evidence— As provided under section 91 no evidence other than the document itself is admissible when the terms of contract or disposition of property are reduced to a document. Similarly section 92 prohibits contradiction of the contents of documents by oral evidence. Nadabipatra neither creates any interest nor it transfers title. Khorshed Ali Bhuiyan being dead his heirs Shamsun Nahar and others Vs. Gunjor Ali and others. 2, MLR (1997) (HC) 38. Section—91 Kabalas under pre-emption under section 96 of the State Acquisition and Tenancy Act — recitals in documents are of out and out sale — no mention about any exchange or compromise. Section 91 of the Evidence Act will not bar any challenge as to the character of the disputed documents — But for that reason, the kabalas in question cannot be construed as instruments of exchange, simply because the ownership of the case land was not transferred for the ownership of any other land — State Acquisition and Tenancy Act, 1951 (XX VIII of 1951), S. 96. Abu Hassan (Minor) and others Vs. Basiruddin Ahmed and others; 11BLD (AD) 231, 12 BLD(AD)191 Sections 91, 92, 110 Seeking declaration of title and confirmation of possession in the suit land. Syed Ali Mondal vs. Dulal Chandra Biswas (Md. Tafazzul Islam J) (Civil) 4 ADC 964 Whether Evidence is admissible given by pardanshin women The question of special onus with regard to a transaction entered into with a pardanishin lady and the question of proof of an independent advice is indispensable in case of a transaction where the protection to a pardanishin woman is available came up for consideration. Mustafizur Rahman Vs Md. Amjad Hossain (Md. Ruhul Amin J(Civil) 3 ADC 319 S.91 The provisions of section 91 (Evidence Act) preclude interpretation by oral evidence of the contents of a document. Syed Ali Vs. State (1974) 26 DLR 392. Section—92 Evidence — whether it is admissible to vary the terms of a written and registered document — Oral evidence though not admissible to vary, modify or alter the terms of a written registered document, will however be admissible to prove that the nature and character of the instrument is different from what it is alleged to be or that the instrument was a mere paper transaction that it was never intended to be given effect to or acted upon. Mozem Par and others Vs. Fazie Karim Biswas and others; 4BLD (HCD) 173 Ref. 19 DLRI7; 38 l.A. Page-85; (1924) 51 l.A. Page-305; 38 C.W.N. Page — 883; 20 C.W.N. Page-347; 16 DLR(SC)629; PLl968(Karachi) 307; A.LR. 1936 (PC) 61 — Cited. Section-92 of the Evidence Act provides that when a document described in Section- 91 has been proved according to Section-91, “no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms.” Tambia Khatun Vs. Rafiqullah 8BLT(AD) -230 Section 92 and 115 An estoppel arises when a representa- tion is acted upon as true by the party to whom it is made. Generally the ele- ments of estoppel are the representa- tions made under circumstances which amounted to an intentional causing be- lief in another. The principle which is incorporated in section 115 of the Evi- dence Act is a simple and equitable doc- trine which lays down that if a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person that other person will not be allowed in any proceedings between himself and the other person to go back upon it to the detriment of the other party. The rule is that the party will not be allowed to go behind the facts admitted in writing. If a person has by his conduct permitted the other party to believe that the agreement was other than it is embodied in the doc- ument, and has caused him to act upon that belief, he can not fall back upon section 92 of the Evidence Act and thereby escape the consequences of his own action. The Privatization Commis- sion vs. Golam Mostafa (S.K. Sinha J) (Civil) 9 ADC 484 Section 92 Sree Hari Sankar Nandi Majumder vs Sree Promode Chandra Roy Choudhury and 47 DLR (AD) 97 between Sadharan Bima Corporations Vs. Sanjib Kumar Das. The word action or suit appearing in clause 8(b) should not be interpreted as having identical meaning and the word action would include legal notice served by the insured on the insurer. Chalna Marine Products vs Bangladesh General Insurance Co. Ltd (Mainar Reza Chowdhury J) (Civil) 2 ADC 96 Section 92 It appears that the plaintiffs filed a suit for declaration of title and also for dec- laration that the record of S.A. Khatian in the name of Aushi Miah is wrong. The trial Court decreed the suit land and on appeal, the Court of Appeal below affirmed the judgment and decree of the trial Court. It appears that Rajabdi died leaving by Bangu Sheik and Atabdi as his two sons to inherit the properties left behind him and Bangu Sheikh died leaving behind his wife Rupban and three daughters Joynab, Payrun Nessa and Maju Bibi. Suraiya Begum vs. Misir Ali (Mohammad Fazlul Karim J) (Civil) 7 ADC 945 Section 94—Exclusion of oral evidence by documentary evidence— Deeumentary evidence excltides oral evidence as contemplated under section 94 of the Evidence Act, 1872. Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd. 4, MLR (1999) (HC) 158. Evidence Act, 1872 Sections 101 and 106-Section 106 of the Act deals with the burden of proving a fact especially within the knowledge of any person. Burden of proving of fact which is especially within the knowledge of any person lies upon him. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500 Section—101 Onus of Proof — in a case of disputed parentage — The onus is not on the defendant to prove the factum of marriage — The onus was clearly upon the plaintiff to establish that there was no marriage when the defendant proved acknowledgement in his favour — All the Courts below in the facts of the case misplaced the onus on the defendant for proving the marriage of Monwar Begum with Amir Ali Mia whereas the settled principle of law is that the person who denies it will have to establish it — it was for the plaintiff to prove that there was no marriage with Manwara as alleged — As such the concurrent findings of fact is no finding in the eye of law. Khorshed A lain alias Shah Alam Vs. Amir Sultan All Hyder and another 5BLD (AD) 121 Ref. 3 M.I.A. 295; 8 M.I.A. 836 and 11 M.1.A, 94; 561.A. 201; 51 C,W.N. 98—Cited. Section 101- Prosecution must prove the charge against an accused beyond any shadow of reasonable doubt In a criminal case the prosecution must prove the charge brought against an accused beyond any shadow of reasonable doubt. Criminal cases are not like civil cases. In criminal case the accused may only take the plea of not guilty and the burden is entirely upon the prosecution to prove its case. Cross-examination is not also necessary on the entire deposition of a witness as it may damage the defence case. Non-cross-examination on a certain fact would not make the deposition of a witness on that point admitted facts. (Minority View), (Per Madam Justice Zinnat Ara)....A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593] Sections—101 and 102 Onus — Onus on whom lies in a suit for specific performance of a contract for sale of property where the signatures in the documents regarding the contract are admitted by the defendants pleading that the same were obtained from them by threat, intimidation and coercion — Law does not require that all facts alleged by the plaintiff shall be strictly proved, for burden of proof is often lightened by presumptions, admissions and estoppels — Primarily onus, of course lies in a civil proceeding, upon the plaintiff — In this case primary onus has been discharged satisfactorily by the plaintiff — Then onus has shifted upon the defendants to prove their particular fact that their signatures were extorted — This onus they failed to prove — Consequently, the evidence adduced by the plaintiffs as to execution of the documents stands. Jabed Ali Mondal and others Vs. Jamini Kanta Dey and others, 7BLD (AD) 156 Section—101 Onus to prove parentage — When oral evidence was inconclusive to decide the question of parentage whether the Court can decide the same on the basis of the documents showing dealings with the property — The onus was on the plaintiff to prove that his father Nagar was the son of Gour Majhi — In view of the inconclusive testimony of the witnesses as to parentage of the plaintiff, the appellate Court rightly dismissed the suit when the documentary evidence as to the ownership, use and mode of transfer of the impartibly property clearly indicated that the plaintiff had at no point of time raised any claim or had any possession in the suit property. Sree Gopal Chandra Mondal and another Vs. Lasman Dasi and others; 7BLD (AD) 107 Section—101 Finding of fact—Finding of fact is ordinarily binding in a second appeal — Section 101 distinctly prohibits second appeal on a finding of fact based on legal evidence unless in the process of arriving at a finding of fact the Court has committed an error of law or a substantial error of procedure. Abdul Gaizi Khan Vs. Shainser Ali and others; 12BLD (HCD)90 Sections—101 and 102 Burden of proof — The onus of proving the genuineness of the signature and the questioned document is on the plaintiff. Shree Dulal Benergee alias Moni Vs. Shree Sha rat Chandra Pal and another. I2BLD (HCD) 277 Section—101 Burden of Proof In a criminal case the onus of proving the charge against an accused lies on the prosecution. The prosecution must prove its case beyond reasonable doubt and the accused has no obligation to account for the death of the victim for which he is placed on trial. But when the murder of the wife of the appellant takes place in his house while she was living with him in the same house, the accused owes a duty to explain as to how his wife has met with her death. Ali Hossain Vs. The State, 15BLD (HCD)307 Sections—101 and 106 The burden of proving the manner of the incident as alleged by the prosecution lies squarely on the prosecution and it never shifts. If the manner of the incident is not proved, the prosecution must necessarily fail, no matter, whether the defence version of the case has not been proved either. In order to bring a case within the ambit of section 106 of the Evidence Act, ‘special knowledge” of relevant facts must be attributed to the accused persons in respect of commission of the offence. Only in such exceptional cases the burden of proving those facts is shifted to the accused persons for dispelling special knowledge’ in the commission of the offence. Kawsarun Nessa and another Vs. The State, 15BLD(HCD)21 Section-101 Onus of proof—both sides have adduced their evidence in support of their respective cases and when the date is fixed for argument the defendant petitioner filed two applications before the Family Court, one for examining the plaintiff opposite party No.1 by a Gynecologist to see whether she is still virgin in the instant case the plaintiff opposite party No. I is to prove her case and will get its own course and for matter she cannot be examined by a competent doctor to as certain as to whether she is virgin or not because thereby the onus of proving the defense will be illegally shifted on the plaintiff opposite party No.1. Learned Family Court rightly rejected the application of the defendant petitioner. Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher Begum 4BLT (HCD)-148 Section-101 Burden of proof—vested property—when challenged in a Court of law, the onus is heavily on the Government to prove affirmatively that the property in question is in fact a vested property, failing which some evidence to the contrary adduced by the successors-in-interest of the original tenant or the transferees showing that they are in rightful possession of the disputed properties, is sufficient to take the same out of the ambit of enemy property laws. Mere claim by the Government or by the vested property authority that a certain property is a vested property, without the necessary factual basis and legal foundation, has no validity in the eye of law. Mann, Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22 Section-101 Whether the cashier is a necessary party The plaintiff respondent filed money suit against Bank, the sole defendant appellant for realisation of deposited money by him self— the cashier is not a necessary party in the suit in the facts and circumstances of the case. Pubali Bank Vs. Md. Selim 7BLT (HCD)-21 Proof of a document Unless objection as to admissibility of a document was taken at the earlier opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage. Pubali Bank Vs. Md. Selim 7BLT (HCD)-21 Section- 101 Onus of proof— in the instant case the transferee is a Pir and the transfer is his disciple who is not an well educated woman. In order to make the transfer in this case valid an legal transaction burden of proof that it is so for the reason of the spiritual relationship that grew between the transferor and the transferee in whom the transferor had deed faith lies on the transferee defendant No.1 (Pir). Shah Sufi Taj Islam Vs. Begum Rokeya Chowdhury & Anr. 9BLT (AD)-62 Section-101 Onus of Proof—Held: Learned Judge of the High Court Division found fault with the plaintiff for his failure to adduce evidence to show that he either purchased the machineries and spare parts from the market or fabricated the same in his factory. When defendant Nos. 1-5 acknowledged the receipt of the same there was no necessity of adducing evidence to show from whom those were purchased or from where those were fabricated. That was not an issue in the suit, Learned Admiralty Judge Misdirectioned himself to enter into such an enquiry unnecessarily When the supply of the machineries and spare parts are admitted by the principal defendants against whom decree has been sought there was no necessity of enquiring about the origin of the same. We are of the view that failures of the plaintiff adduce evidence as to from whom those were purchased or from where those were fabricated cannot deprive the plaintiff from recovering the price of the same form the defendant Nos. 1-5. Md. Giasuddin Vs. M. V. Forum Power & Ors 8BLT (AD)-272 Section-101 Provision of P.O. 149 of 1972— citizenship—suit for declaration that the plaintiff appellant is a citizen of Bangladesh —the trial court dismissed the suit under conception that the onus was upon the plaintiff according to the provision of P.O. 149 of 1975 to prove that he was a permanent resident of this country in order to entitle him to get a declaration that he was a citizen of Bangladesh and it further held that the plaintiff should have proved that on 25.03.1972 he was in this country left and the trial courts observed that the plaintiff left this country before the liberation war and came back after liberation—Held: The right of citizenship acquired by birth cannot be lost or destroyed unless it is proved that he has given up it and acquired the citizenship of any other country. Which is very much lacking in this care and the defendant No. 4 Now respondent could not prove that the appellant lost his citizenship of Bangladesh which he had acquired by birth. So the Courts below, illegally shifted onus to prove upon the plaintiff appellant as to his Bangladeshi citizenship which he held and acquired by birth. Annada Prasad Das Vs. Dy. Commissioner& Ors 9BLT (HCD)-456 Special plea of the raises a reasonable doubt. Accused failing to prove his special plea aiming at bringing his case within an exception. Succeeding, however, in creating reasonable doubt in respect of his guilt-Court bound to give benefit of doubt to the accused-Entire evidence to be taken into account Md. Aslam Vs. Crown (1953) 5 DLR (FC) 133 (135 rt. hand col). Burden of proving case covered by exceptions on accused-Nevertheless prosecution must prove ingredients of offence. (1949) PLD (Lah) 70. Anything done by accident or misfortune- Burden of proof on the accused. Jalal Din Vs. Crown (1953) 5 DLR (WP) 58. Anyone who claims the benefit of an exception must prove the facts entitling him to it. This is a correct exposition of law. But it does not preclude the Court from giving an accused person the benefit of an exception, if there is material on record to justify the giving of --- PLD (1953) (BJ) 17. Grave and sudden provocation-Burden on accused to prove exception-Yet, in absence of affirmative proof, accused may have benefit of doubt raised on examining prosecution evidence side by side with defence version. 9 PLD (Lah) 31. Section 105 of the Evidence Act casts a burden upon the accused to prove the existence of circum- stances bringing the case within any special exception or proviso contained in any other part of the Penal Code. There has been complete failure on the part of the defence to prove those circumstances. Md. Abdul Majid Sarkar Vs. The State (1988) 40 DLR (AD) 83. Accused's statement in court should be taken into consideration in its entirety, if conviction is to be based solely on such statement. Rahim Bux Vs. Crown (1952) 4 DLR 53 (61). S.106-Human nature being what it is, when- ever one finds a young man abducting a girl of marriageable age, the first and natural presumption must be that he has abducted her with the intention of having sexual intercourse with her, either forcibly or with her consent, after abduction or after marrying her. If he has any intention other than that which is suggested by the natural circumstances of the case, the burden lies upon him, under section 106 of the Evidence Act, to prove that intention. Siddique Vs. State (1959) 11 DLR 321 (1959) PLD (Dac) 956. The officer proceeded against has 10 show either that he had jurisdiction or that he had reasonable grounds for believing that he had jurisdiction. The onus as to there being grounds for reasonable belief would be on him, under the proviso to section 1 of Judicial Officers Protection Act and under section 106 of the Evidence Act which provides that the onus of proving a fact within the special knowledge of a person is on him. Khan Gulam Qadir Vs. A.K.Khalid (1960) 12 DLR (WP) 78: (1960) PLD (Lah) 1037. Corroborative evidence in respect of an approver's statement may in point of time relate to periods before as well as after the crime. Rafiq Ahmed Vs. State (1959) 11 DLR (SC) 91, (1958) PLD (SC)317. Corroboration under certain circum- stances may be corroborated by the confession of a co-accused. While presuming that an accomplice is unworthy of credit unless he is corroborated in material particulars, the court shall have regard to facts to be found in the illustration appended to illus. (b) in considering whether the above maxim docs or does not apply to the particular case before it. It follows from illustration (b) that there are cases in which an account of crime given by an accused person implicating his co-accused can be taken into consideration as corroborating the approver. Courts should, however, be very careful in making use of the confession of the co-accused as corroboration of an approver's testimony, and the probability of the confession having resulted from previous concert should be excluded before it can be used for corroborating the approver. (1950) 2 DLR (PC) 39. Matter within the special knowledge of the accused-Inference. Where a person is in furtive 'possession' of the corpse of a murdered man or has secret knowledge of the place where it is lying hidden from the public view, he may be presumed to have had something to do with the murder, if he cannot give a reasonable explanation of his possession or knowledge. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (46 rt. h. col.). Accused pointing out the place where the corpse of the deceased was burnt and bones of human being, footwear and ring, etc., were discovered- Burden on accused to prove he acquired his knowledge in innocent way. PLD (1951) (Lah) 352. Property stolen in dacoity recovered at accused's pointing out from vicinity of crime- Accused convicted of dacoity and not of receiving stolen property-Burden on accused to prove how he came to know where property was hidden. PLD (1957) (Lah) 765. Accused's possession of the boxes containing Poppyheads established-Burden of proving want of knowledge that the boxes contain Poppyheads was on the accused. Nazir Ahmed Vs. Crown, (1955) 7 DLR (FC) 204 Section—106 Burden of proving fact especially within the knowledge of any person—Alibi in a quasi-criminal proceeding Even in a quasi-criminal proceeding if a plea of alibi is taken the burden to prove it is on the person who takes such a plea, because that fact is within his special knowledge. The petitioner had opportunities to prove his absence from the country since 1982 at the trial Court, the lower appellate Court and the High Court Division but he did not avail of the opportunities. Even before the Appellate Division the petitioner failed to produce any proof in support of his plea of alibi. Under such circumstances the petition merits no consideration. Md. Abdul Tahid alias Tahid ulla V. M Kadaris Ali and ors., 16 BLD (HCD) 248. Section-106 Burden of proving fact specially within knowledge of any person. The definite and specific defence plea is Bus No Mymensingh BA-157 driver by ! was not involved in the accident but Bus Mymensingh BA-191 belonging to the owner was involved in it. This being within the special knowledge of the accused within the meaning of section-106 of the Evidence Act, a burden was cast upon him discharge it, mere so when the prosecution proved the guilt of the accused convincing and overwhelming evidence. The accused hopelessly failed to discharge the special burden. Namaluddin Vs. The State 8 BLT (HCD)-121 Section -106 It appears that both the courts considered the defence plea and held plea to be false. It may be stated here that the defence is not always bound to give any explanation but if any explanation is given the court may consider it. The trial court after discussing and considering the evidence of witnesses found that Chapa was killed by somebody from inside the room and not by any one from outside the room through the window as claimed by the accused. The High Court Division in its turn held the same view. The High Court Division in clear terms held that it was not possible for any outside-miscreants to cause such injuries standing on nine inches wide carnish on the face and head of Chapa and kill her. The High Court Division thus in unequivocal terms expressed the clear view that the explanation given by the defence totally falls through and according to the High Court Division it was established that Chapa was killed in her room by the miscreants who were living within the house, went into her room, caused injuries in such manner that ultimately she succumbed to the injuries. In view of such concurrent findings of both the courts below on the basis of evidence on record we do not like to make further exercise on the point and we also are of the view that Chapa must have been killed by person/persons living inside the house on the night of occurrence. The State Vs. Khandker Zillul Bari 14 BLT (AD) 91 Section—106 Burden of proving fact especially within the knowledge of any person—Alibi in a quasi-criminal proceeding Even in a quasi-criminal proceeding if a plea of alibi is taken the burden to prove it is on the person who takes such a plea, because that fact is within his special knowledge. The petitioner had opportunities to prove his absence from the country since 1982 at the trial Court, the lower appellate Court and the High Court Division but he did not avail of the opportunities. Even before the Appellate Division the petitioner failed to produce any proof in support of his plea of alibi. Under such circumstances the petition merits no consideration. Md. Abdul Tahid alias Tahid Ulla Vs. Md. Kadaris All, 16BLD(AD)248 Section—106 Murder of wife—Alibi of the husband— Presumption The accused and his wife were sleeping in the same bed. The wife died due to multiple injuries on her person. In such circumstances a heavy burden is cast upon the husband to satisfactorily explain as to how his wife died. Gouranga Kumar Saha Vs The State, 17BLD(HCD)259 সাক্ষ্য আইন, ১৮৭২ ধারা ১০৬ ঋণাত্মক দায় ও নরহত্যাঃ ঘটনার সময় স্ত্রী তার স্বামীর হেফাজতে ছিল অর্থাৎ স্বামীর উপস্থিতি প্রমাণিত না হলে সচরাচর প্রচলিত সাক্ষ্য আইনের ১০৬ ধারার ঋণাত্মক দায় নীতিটি স্বামীর উপর প্রযোজ্য হবে না। সেক্ষেত্রে রাষ্ট্রপক্ষকে যুক্তিসঙ্গত সন্দেহের উর্ধ্বে প্রমাণ করতে হবে যে- (১) স্ত্রী হত্যাকান্ডের শিকার হয়েছে এবং (২) তা স্বামীর দ্বারা সংঘটিত হয়েছে । [2023] 27 ALR 1 Section 106- Section 106 No independent witness was examined by the Investigating Officer nor cited as witness in this case, thus creating doubt. The Appellate Division finds that it is true that a case where section 106 of the Evidence Act is applicable, i.e. when the victim was last seen with the alleged accused, the accused has a duty to explain how the victim died. However, in the instant case there is no independent corroborative witness with regard to the deceased being in the company of the accused in spite of the fact that the houses of the victim's father and that of her husband are near to each other and they are surrounded by many other houses of persons who would be independent witnesses, but no independent witness was cited in the charge sheet or examined by the prosecution in support of the prosecution case. Moreover, the allegation of the victim having been killed by her husband on account of non-payment of dowry is belied by the fact that the victim was apparently killed after having been gang raped as indicted in the post mortem report and supported by the inquest report. The defence suggestion that the victim went out of her father's house to watch a show at the local school or that she may have been taken out of her father's house and raped and killed thereafter cannot be overlooked in view of the finding of the post mortem examination that the victim was gang raped. The fact of the victim having been gang raped is not commensurate with the prosecution claim that the accused, being the husband, killed his wife for dowry. The Appellate Division also note from the cross examination of P.W. 3 Md. Mofazzel Hossain, who is a brother of the informant that he stated ""আমার মেয়েকে অজ্ঞাত লোকে ধর্ষণ করে মারিয়াছে আমি বলতে পারিব না।" (emphasis added) which is clearly prevarication, particularly in view of the fact that the post mortem examination report clearly indicates gang rape prior to murder. Accordingly. the criminal petition for leave to appeal is dismissed. The State VS Md. Akinur Rahman, [1 LM (AD) 537] Section 106- Section 106 of the Evidence Act said "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him......M.A.Kader =VS= The State, [4 LM (AD) 408] Sections 106 or 114- Burden of proof In most criminal matters, the burden of proof lies upon the prosecution to prove a charge against an offender, but in respect of spouse killing case, it has been established that the burden shifts upon the accused person. It is the responsibility of the accused to explain the cause for the death of his/her spouse if it is found that he or she died while in his/her custody or that they were staying jointly before the death. The High Court Division is of the view that with a view to giving legal safeguard in respect of such offences, sections 106 or 114 of the Evidence Act may be amended. Since the law is settled on the said issue, there is no reason for any amendment of the law. On the doctrine stare decisis if a 5 decision has been followed for a long 1 period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts. This doctrine is explained in Corpus Juris Secundum: 'Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed on similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable.' So, there is no need for amendment to section 106 or 114 of the Evidence Act. ..Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274] Sections 106-Murder-Husband obligation to explain-Ordinarily the accused has no obligation to account for the death for which he is placed for trial. The murder having taken place while the accused was living with his wife in the same house, then the accused husband under section 106 of the Act, is under obligation to explain how his wife had met with her death. In absence of any explanation coming from his side it seems, none other than the accused husband was responsible for causing death. State vs Md Hasibul Hasan, 64 DLR 291 Sections 106-The accused owes an explanation as to why he was concealing the firearms and ammunitions. But he did not give any explanation and rather the accused has absconded from the date of examination under section 342 of the Code. Joynal Abedin vs State, 64 DLR 393 Sections 106-When a wife met with her unnatural death in custody of the husband and while in his house, the husband is to explain under what circum- stances the wife met with her death. In such a case there could be no eye-witness of the occurrence apart from inmates of the house who may refuse to tell the truth. The neighbors may not also come forward to depose. The prosecution is therefore, necessarily to rely on circumstantial evidence. State vs Md Golam Rabbani, 68 DLR 137 Section 106-Burden of proving fact especially within knowledge-Under section 106 of the Act when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. This principle has been applied in many cases where the wife has been found killed in the house of the husband where they reside together. In such circumstance, the husband will have to prove by positive evidence that he was absent from the house when his wife was killed or explain by evidence how she came to meet her death. Mahabur Sheikh alias Mahabur vs State, 67 DLR (AD) 54 Section 110- Section 110 of the Evidence Act provides for a presumption of ownership in favour of the person who is in possession of the property. A person in possession of land however inperfect his title may be, has a good title against whole world except the true owner and until the true owner comes in Court to assert a claim to the property. Possession is evidence of title, and gives a good title as against wrong doer. ... Hajee Abul Hossain =VS=Md. Amjad Hossain, [8 LM (AD) 108] Section- 110 The presumption under section 110 in this case would apply only if two conditions are satisfied viz that the possession of the person claiming long possession in not prima facie wrongful and secondly the title of the person in this case the plaintiff despondent, against whom the long possession is claimed is not proved. The courts below found that the defendant appellants are in possession but they are not in possession to the knowledge of the real owner upon denying his title or any kabuliyat or deed of settlement. On the other hand the plaintiff respondent has proved their title by registered kabala executed on 13.11.1974 for valuable consideration. The hits at the root of the claim by the defendant appellants on the suit land on the basis of long possession since the courts below have disbelieved their claim of title of the suit property, No doubt the defendant appellants possession for a long time and by succession remains. But the claim of long possession remains precarious because of the finding of title of the suit land in favour of the plaintiff respondent by courts below. Sree Mali Gouri Das & Ors, Vs. A. B. Hasan Kabir & Ors. 11BLT (AD)87 Section 110 The presumption under section 110 in this case would apply only if two conditions are satisfied viz that the possession of the person claiming long possession is not prima facie wrongful and second- ly the title of the person, in this case the plaintiff respondent, against whom the long possession is claimed is not proved. The courts below found that the defendant appellants are in possession but they could not prove their title or that they are not in possession to the knowledge of the real owner upon deny- ing his title or any kabuliyat or deed of settlement. Mati Gouri Das vs A.B.M. Hasan Kabir & Sreemati Ava Rani Aich (K. M. Hasan J) (Civil) 2ADC 449 Section—111 Burden of proof — Pardanashin Lady — Burden lies on the person who claims benefit under a deed executed by a pardanashin lady to establish that the deed was executed by the pardanashin lady after clearly understanding the nature of the transaction — The burden lies not only on the receipient of the deed, but also upon the transferee from the beneficiary. Mst. Rokeya KhatunVs. Aljan alias Aljan Bepari and others; 2BLD(4D)139 Ref. 52 l.A. 342; A.I.R. 1928 (PC) 303; A.I.R. 1940 (PC) 1,34 — Cited. Section—111 Burden of proof — Pardanashin lady — Protection given to pardanashin lady by the special rule of onus will extend to her legal heir — If the person upon whom the property of the pardanashin woman devolves by operation of law, and who, in the facts of the case, represents her can challenge the legality of disposition. Mst. Rokeya Khatun Vs. Aljan alias Alijan Bepari and others; 2BLD (AD) 139 Ref. 33 DLR (AD) 1 — Cited. Section—111 Hiba-bil-Ewaj—Question of absurdity of the reason for Hiba-bil-Ewaj — Special rule on onus of proof devised to protect a pardanashin lady need not be understood to create disability in her right to deal with her property — When the final Court of fact is satisfied that the questioned document is beyond suspicion, no further examination of the document is called for. Jahura Khatun and another Vs. Md. Nurul Momen and others; 2BLD (HCD) 165Ref. 70 C.L.J. 402: A.LR. 1940 (PC) 134: 45 C.W.N. 259; 82 C.L.J. 26; 59 C.W.N. 147; 6 DLR 202; 33 DLR (AD) 1; A.I.R. 1919 (PC) 24; — Cited. Section—111 Pardanashin Lady — Discharge of special onus by the recipient of the document from a pardanashin lady — Without making any pleading that the executant was a pardanashin lady and she could not comprehend and understand the transaction there was no special onus upon the recipient of the kabala to prove that the document was a bonafide one and the executant understood and comprehended the transaction and that she had independent advice before she executed the kabala, Noad Chand Vs. Mst. Hjssain Banu and others; 6BLD (HCD) 173 Ref. A.I.R. 1956 (SC)593; A.LR. 1966 (SC) 635; 34 LA. 27: A.I.R. 1930(Sind) 25; 33DLR (AD) 1; 34 DLR(AD)266; A.I.R. 1930 (PC) 57; 28DLR(AD)57; A.I.R. 1920 (PC) 65 — Cited. Section—111 Pardanashin and illeterate lady — Execution of deed by her — Onus on whom that she had independent and disinterested advice at the time of execution and registration of the sale deed — Mere reading over and explaining of the contents of the deed will not meet the requirement of law — Onus is on the vendee to prove that independent and disinterested advice in the matter was received by her — The party relying on a document executed by an illeterate pardanashin village woman must satisfy the Court that not only the deed was read over and explained to her but also to prove that she understood the contents and that she got independent and disinterested advice in the matter. Rangbi Bewa Vs. Md. Abed Ali and others; 7BLD(HD)319 Ref. 26 C.W.N. 517(DB). Section 112- It appears from the judgment of the appellate Court, the last Court of facts, without considering evidence, particularly, the evidence of P.W.2, and recitals in exhibit-3 erroneously held that Kanai was not the son of Niroda and Krishna Das. This finding is not based on legal evidence and both the Courts have failed to give due weight of the presumption under Section 112 of the Evidence Act. The defendants have tried to make out the case only to deprive the plaintiff from the property without any legal evidence.... Reba Rani =VS= Sree Nipendra Chandra Mondal, [10 LM (AD) 164] S.112-Presumption as to the parent- hood of a child. Under section 112, if a person wants to prove that he is not the father of a child he must establish that he had no access to the wife. Once it is proved that he had access to his wife, the fact that his wife was a woman of bad character and that she was accessible to other people too is no ground to hold that the child born during the continuance of the marriage, or within 280 days after its dissolution is not that person's child. Taza Gul Vs. Mst. Bibi Ai- sha I PCR 97. Section 113A- In the facts of this case, it has been concurrently found that the in- laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in-laws to assist the victim to commit suicide. We find, especially in view of the fact that the appellants have been acquitted for the crime under Section 498 A of the Code, that abetment of suicide under Section 306 is not made out. In the circumstances, we set aside the impugned Judgment of the High Court...... Heera Lal =VS=State of Rajasthan, [3 LM (SC) 65] Sections 114(g)-The onus lies on the prosecution to prove its case beyond reasonable doubt. The charge against the appellants have not been conclusively brought home to them. When human life pends in the scales, caution becomes the primary duty of any Court called upon to assess the evidence of the case. The prosecution has failed to prove its case beyond reasonable doubt and the convicts are entitled to get the benefit of doubt. State vs Golam Faruq, 65 DLR 254 Section 114(g)- Suspicion-Mere conjectures and probabilities cannot take the place of proof. The Court of law has to dispense justice in accordance with law and not according to the moral conviction of the Judge with regard to the occurrence. Akbar Ali Lalu alias Roni vs State, 66 DLR 134 S.114-Discovery of stolen goods from a place not within accused's domain-Presumption. Stolen goods discovered at pointing out by the accused from a place not within his domain but close to his house and the accused explaining how he came to know the same, Court's presumption in circumstances is that the stolen goods were planted and possessed by the accused. Ainul Hug Vs. The State, (1970) 22 DLR 99. S.114(a)-Lost article recovered from accused's hut-Guilty knowledge not proved. Lost article recovered from accused's hut soon after occurrence Guilty knowledge not proved. If the accused gives an explanation which is reasonable though it may not be true, he is entitled to acquittal. Mir Amar Hossain Vs Crown (1954) 6 DLR $18. -Condition precedent for the application of illus 114(a)-Accused must be in possession of stolen goods. The condition precedent for the application of il- lustration (a) to sec. 114 is that the accused must be in possession of stolen goods. The production of property by itself would not necessarily prove his possession. It would at the most show that the accused had knowledge that the property was kept or concealed. In the absence of any incriminating statement by the accused leading to the discovery of the property, its production alone from a place which was accessible to the public would not be sufficient to establish his possession. The possession of the article must be clearly traced to him in order to justify the presumption under the illustration. Jumma Vs. Govt. (1954) 6 DLR (WP) 8. Possession of stolen goods immediately after theft-Presumption from possession of stolen goods immediately after theft when the prisoner gives a reasonable account and there is no other evidence of guilty knowledge, he is entitled to acquittal. Majiruddin Fakir Vs Crown (1950) 2 DLR 34 Possession of stolen property, even if accompanied by a failure to account as to how such pos- session was acquired, or by a false account or by ac- counts which are contradictory would not raise a violent or strong presumption, but a probable presumption merely. Ido Vs. Crown 2 (PCR) 91. -'Soon after the theft-No hard and fast rule as to length of period. Does not lay down a hard and fast rule-"Soon after the theft"-Length of period depends upon circumstances of each case-Numerous articles recovered 40 days after the theft-Presumption drawn. PLD (1956) (Lah) 190. -The mere fact that the accused person gives information of a place where an incriminating article is found does not necessarily show that he put the articles there himself and would be sufficient to sup- port a conviction. PLD 1951 (Bal) 30. -S.114 Illustration (a) The expression "Unless he can account for his pos- session-The expression unless he can account for his possession in illustration (a) of section 114 of the Act does not mean that the accused must prove affirmatively by adducing substantive evidence that he received the stolen property in the way indicated by him. The adverse presumption can be said to have rebutted if the explanation of the accused reasonably appears to be probable. Alimullah Vs. The State. (1969) 21 DLR 645. S.114(b) Confessional statement against a co-accused re- quires corroboration. State Vs. Badsha Khan (1958) 10 DLR 580. -Evidence of approver, if duly corroborated, should not be rejected merely because he is a man of depraved character. Rafiq Vs. State (1959) 11 DLR (SC) 91: (1958) PLD(SC) 317. -"Particulars" though in plural number means also the singular "particular". Though illustration (b) to section 114 uses the word "particulars" in the plural it has been held that corroboration on a single particular deposed to by the accomplice is sufficient provided that the "particular" tends to show that the prisoner was concerned in the crime. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (45 left. h. col.). -If the particular proved is inconsistent or in- compatible with the innocence of the accused of the offence charged, then exhypothesi it will itself be sufficient proof of the commission of the crime by the accused and the evidence of the accomplice will thus be unnecessary. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (45 left. h. col.). -An accomplice is unworthy of cred. it-Corroboration. Regard being had to see. 114(b), it is a serious omission to fail to direct the jury that although the uncorroborated testimony of an accomplice is admissible in evidence and a conviction based on it not illegal, yet as a matter of fact and practice it is not at all safe to rely upon his evidence unless it is corroborated in material particulars by independent evidence. Adwalta Chand Vs. Crown 1 PCR 36. -An accomplice means a guilty associate or partner in a crime, a person who is connected with the offence, or who makes admissions of facts showing that he had a conscious hand in it. Gulam Rasul Vs. Crown I PCR 90. -A witness not in any way concerned with the commission of the crime but being a witness to it withheld, out of fear, the information about the same until the arrival of the police, cannot be said to be an accomplice and his statement needs no corroboration, Gulam Rasul Vs. Crown 1 PCR 90. -Approver, statement of Should not be made the basis of conviction unless there is independent corroboration connecting accused "in very clear terms" with offence charged. PLD (1959) (Pesh) 75. Proof of association and the purpose of association, by direct evidence or by establishing the circumstances. The association and the purpose of the association may be proved either by direct evidence to the effect that the accused, or the accused and others, met and resolved to join together for the purpose of habitually committing dacoity or, in the absence of such direct evidence, it may even be established by proof of facts from which the association may reasonably be inferred. The evidence of the first kind, namely, direct evidence can come from a participant or an associate alone. Therefore, the general practice in such cases is to get this direct evidence through the mouths of accomplices who are made approvers by the tender of pardon, though the practice of the Courts in this Sub-Continent has been so consistent as to harden into a rule of law that the evidence of an accomplice unless corroborated in material particulars by independent evidence, is not relied upon. Ramzan All Vs. The State, (1968) 20 DLR (SC) 49. -Corroboration of the evidence of an accomplice Extent and nature of such corroboration. The rule of practice requiring corroboration of the evidence of an accomplice is that corroboration must be in respect of material particulars implicating the accused, and it is not necessary that evidence of the accomplice should be corroborated in every de- tail of the crime. Abdul Khaliq Vs. The State, (1970) 22 DLR (SC) 106. -Extent and nature of corroboration of an accomplice's evidence. The extent and the nature of corroboration re- quired may, no doubt, vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every particular, all that is necessary is that the corroboration must be such as to affect the accused by connecting or tending to connect him with the crime. The corroboration again need not be direct evidence. It is sufficient if it establishes the existence of circumstances from which the connection of the accused with the crime can be reasonably inferred and supports the approver's evidence in such a substantial manner as to make it safe to be relied upon. Ramjan Ali Vs. The State, (1968) 20 DLR (SC) 49. -Corroboration of the evidence of association in respect of offence under section 400 Pak. Penal Code-Nature of as-sociation to be established. In order to provide corroboration to the approver's evidence the practice has grown up, in such a case, to lead evidence of what has been called association, general and specific, etcetera. Such evidence of association cannot, by its very nature, be of a very precise or definite character and it is therefore essential to bear in mind that it may not always be safe to rely on the ipse dixit of a wit- ness of this kind unless he is of such a reliable char- acter that neither his veracity nor his memory can be doubted or that his identification of the person or persons so seen by him is of such a nature that it can implicitly be relied upon. The circumstances which may normally be regarded as sufficient for furnishing such confirmation might well be- (1) that the witness had contemporaneously re- ported this fact to somebody else; (2) that other witnesses also support the testimony: (3) that in the information, if any, lodged with regard to a dacoity the person or persons named by the witness have been shown as accused persons: (4) that the person so named was, in fact, arrested or challand in that dacoity; and (5) that some article looted in that dacoity was actually recovered from the person named or at his instance. Evidence of such a nature must be scrutinised with care and caution in order to eliminate all chance es of false implication or even an honest mistake. Ramzan Ali Vs. The State, (1968) 20 DLR (SC) 49 Sec. 114 illustration (b) Accomplice's evidence needs corroboration as a safeguard. Although section 133 of the Evidence Act provides that an accomplice shall be a competent wit- ness against the accused person and the conviction is not illegal merely because it proceeds upon the un- corroborated testimony of an accomplice yet illustration (b) to section 114 of the Evidence Act is the rule of guidance to which the court should have due regard. The said illustration (b) provides that the Court may presume that the accomplice is unworthy of credit unless he is corroborated in material particulars. The law and the rule of prudence are certainly not higher in the case of sexual offences. Abdul Quddus Vs. The State (1983) 35 DLR 373 Illustration (e)-Objection on the ground that the sanction was not given by the proper authority cannot be raised for the first time in the appellate court. Sanction is an official act. Once it is proved to have been done it should be presumed to have been regularly done. When it is desired to challenge the official act it should have been agitated in the trial court and then it could possibly be proved that the sanction was given by a competent authority. F.D. Carta Vs. State (1959) 11 DLR 239: (1959) PLD (Duc) 744 When public authority's act is challenged as malafide, the burden of proof is heavy on the person making the allegation. Azit Kumar Das Vs. Prov. of E. Pakistan (1959) 11 DLR 243. The burden of proving that the order of arrest was malafide rests on the detenu, and in the absence of any material on the record showing that the off- cer ordering the arrest acted in bad faith, the Crown cannot be called upon to prove that the order was not illegal or improper. Churagh Din Vs. Crown (1951) 3 DLR (FC) 157. Since the particular case is pending in the Court of the Sub-divisional Magistrate it may be presumed, in the absence of any evidence to the contrary, that the orders were signed by the Sub-divisional Magistrate himself. Panchu Vs. The State (1974) 26 DLR 297. Section 114(g)-PWs 1, 2, 3, and 5 could not tell specifically against accused Tara at which part of the body of victim Tara dealt blow. Although PWs 4, 8 and 9 are the vital witnesses of the case they did not disclose the presence of accused Tara in the spot at the time of commission of offence, which casts a reasonable shadow of doubt as to the complicity of the accused Tara in the occurrence. The benefit of doubt goes in favour of the accused. Gias vs State (Criminal) 75 DLR (AD) 195 S.114(g) The official acts carry the presumption that these are done with regularity. So, there is also the presumption that the sanctioning authority gave the sanction after consideration of all the materials constituting the offence which were placed before it. Jainul Vs. State (1960) 12 DLR 870: (1961) PLD (Dac) 565. S.114(g)-Where the prosecution withholds material evidence Court should draw an adverse inference against the prosecution. Ashrafuddin Vs. State (1964) 16 DLR 223. Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282. Section—114(g) Non-Production of the requisition slip by the prosecution leads to an adverse presumption against it under section 114 (g) of the Evidence Act that if the slip was produced it would show that the Director himself obtained the blank Accession Register and, thereafter, ‘gave the same to Accused Respondent No.2 for preparation of a neo Register Expunction of observations—In the facts and circumstances of the case and evidence on record, the observations made by the learned Special Judge against the informant in the judgment under appeal are, in no way, unjustified, the same call for no interference. The Solicitor, Government of Bangladesh. Vs. Feroz Mahmud and another, 14 BLD (HCD) 160. Section 114 (g) The officer who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the departmental review board exonerated him ignoring the said, officer's admission that he forged the sig- nature of the respondent in the indent and that the evidence of the PWS that the sig- nature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while considering this issue. Dhaka Water Supply & Sewerage Authority and others vs. Matiar Rahman (Mohammad Gholam Rabbani J)(Civil) 4ADC 278 Section 114 The High Court Division without advert- ing to the reasonings given by the trial Court for believing or disbelieving evi- dence of plaintiff's witness and defen- dant's witness reversed the findings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indi- cated earlier that the trial court thor- oughly discussed all aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortunate. Nurul Haque etc. & ors. i's Aix/us Salarn Chowdhury etc. &ors. (M. M. Ruliul Antin J)(Civil) 4ADC 573 Section 114 (g) The officer who was directly in charge of the godown, was at first found guilty of misappropriation and was according- ly punished, but the departmental review board exonerated him ignoring the said officer's admission that he forged the signature of the respondent in the indent and that the evidence of the PWs that the signature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while con- sidering this issue. Dhaka Water Supply & Sewerage Authority and others vs. Matiar Rahman (Mohammad Gholam Rabbani J) (Civil) 4ADC 278 Section 114(g) Declaration of title to the suit land on the averments Since the plaintiffs are found in posses- sion of the suit land there is no bar to allow the prayer for declaration regard- ing joint possession of the plaintiff with defendants No.7-10 along with declara- tion of their title; if the prayer of the plaintiffs for amendment of the plaint is not allowed they will be deprived of their legitimate right of enjoyment of their valuable properties; it is settled principle of law that amendment of the pleading can be allowed at any stage of the proceeding provided that the amenment, if allowed, would not change the nature and character of the suit and that amendment is necessary to effectively decide the real controversies between the parties in the suit. Hemayet Ali Shaikh and others vs. Ramesh Chandra Mondal (Md. Tafazzul Islam J) (Civil) 4 ADC 866 The Evidence Act (1of 1872) Section 114 The High Court Division without adverting to the reasonings given by the trial Court for believing or disbelieving evidence of plaintiff's witness and defendant's witness reversed the find- ings of the trial court and did not at all discuss the evidence adduced by the parties. We have already pointed out that the High Court Division was in error in observing in omnibus manner that the trial Court was not aware of the legal position as to whom lay the onus of proof in case of benami transaction. We have also indicated earlier that the i trial court thoroughly discussed alli aspects of benami transaction and arrived at its findings. The sweeping remark by the High Court Division regarding judgment of the trial court is really unfortnuate. Nurul Haque ors. (M.M. Ruhul Amin J) (Civil) I ADC 573 Section—114 (g) Adverse presumption Unless it is shown that the witnesses named in the charge sheet were material witnesses in the case, no adverse inference against the prosecution should be drawn under section 114(g) of the Evidence Act for non-examination of all those witnesses. Md. Reazuddin Sardar alias Md. Reazuddin and others Vs. The State, 14BLD (AD)178 Section—114(g) Non-examination of important witnesses, particularly some of the neighbours, without reasonable explanation raises a presumption against the prosecution to the effect that had they been examined, they would not support the prosecution case. Benefit of doubt—Even if there may be elements of truth in the prosecution case against the accused, that by itself is not sufficient for conviction. Between “may be true” and “must be true” there is inevitably a long distance to travel and whole of the distance must be covered by the prosecution by legal and reliable evidence. Dula Mm alias Nurul Islam and others The State, 14BLD(HCD)477 Section—114(g) Non-examination of independent witnesses, especially some of the close neighbours, calls for a presumption under section 114(g) of the Evidence Act to the effect that had they been examined they might have deposed against the prosecution. Kawsarun Nessa and another Vs. The State, 15BLD(HCD)21 Ref: 25 DLR 398; AIR 1936 (All) 833; 41DLR(HCD) 349; 31 DLR (AD) 75—Cited. Suggestion by the defence lawyer Suggestion by the defence lawyer cannot be construed as admission of guilt by the accused. The accused is not required to prove his innocence. The prosecution must prove his guilt beyond reasonable doubt. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD)477 Ref: 27 DLR(AD)29; 44DLR(AD) 10, I.L.R. .76 Indian Appeals 147; 12 DLR (SC) 156; 12DLR (SC) 217; 36 DLR 185; 16 DLR 147; 45 DLR 171; A.I.R. 1939 (PC) 47; 25 DLR 399; A.I.R. 1957 (SC)107; 6BLD(AD)1— Cited Section—114(g) Although law does not require that all the chargesheeted witnesses will have to be examined at the trial but nevertheless when the prosecution withholds material witness and fails to examine natural witnesses from the vicinity of the place of occurrence without any explanation, it casts a serious reflection on the prosecution case. Under such circumstances an adverse presumption under section 114(g) of the Evidence Act should be drawn against the prosecution. Momin alias Md. Mominul Huq Vs The State, 16BLD(HCD)246 Section—114(g) The Court may presume existence of certain facts When the alleged occurrence took place in broad daylight on a busy pathway and the prosecution failed to examine even a single witness from the neighbourhood and furnished no cogent explanation for non- examination of such witnesses adverse presumption under section 114(g) of the Evidence Act must be drawn against the prosecution. Md. Alamgir Hossain alias Alaingir Hossain and another Vs. The State, 16BLD(HCD)270 Section—114(g) Non-examination of the Investigation Officer Non-examination of the Investigation Officer prejudices the defence and deprives the accused of an opportunity of cross-examining him as to the manner and method of the investigation that leads to the submission of two charge-sheets on the self-same occurrence. Abdus Sobhan Howlader and others Vs. The State,13BLD(AD)131 Ref: 40 DLR(AD) 282—Cited Section—114 (g) Presumption against the prosecution for withholding witnesses and evidence When the prosecution did not examine the doctor who held postmortem examination, the investigation officer and other charge-sheeted material witnesses without satisfactory explanation, adverse presumption under section 114(g) of the Evidence Act must be drawn against the prosecution. Munsurul Hossain alias Babul Vs The State, 16BLD(HCD)326 Ref: 36 DLR 333; 28DL R 128—Cited. Section—114 (g) In this case admittedly there are dwelling houses on all sides of the place of occurrence but no owner of these dwelling houses was examined in this case by the prosecution without any explanation. Non-examination of these natural, probable and disinterested witnesses calls for an adverse presumption against the prosecution under section 114(g) of the Evidence Act. Tomezuddin Biswas alias Kalu and another Vs The State, 17BLD(HCD)174 Ref :40DLR348; 1 1BLD(1991)23 1—Cited. Section—114 (g) Benefit of doubt The evidence of P.W.2 Mona corroborated by the Medical Officer PW 3 and informant P.W I to the effect that accused Paltu caught hold of victim Kafi while accused Ashraf struck an iron rod blow on his chest was not accepted by the High Court Division in view of this fact that P.W.2 omitted to state the fact in his statement before the Investigating Officer. The State Vs. Ashraf Ali and others, 14BLD(AD)127 Section—114(g) Benefit of doubt When from the evidence of the handwriting expert it is clear that the three disputed cheques, on the basis of which moneys were withdrawn, were in the hand-writing of the accused person and he did not challenge that fact and did not explain why he wrote the three cheques belonging to a fictitious account- holders, his guilt is established and he is not entitled to get benefit of doubt out of minor omissions made by the prosecution witnesses. Md. Ibrahim Hossain Vs. The State, 14BLD(AD)253 Section—114(g) Benefit of doubt Evidence being contradictory on the material question of recognition of the accused persons and there being no circumstantial evidence lending support to the deposition of P.W2, the sole eye-witness of the case, the accused are entitled to benefit of doubt. Nurul and others Vs. The State, 14BLD (HCD)221 Section—114(g) Benefit of doubt The only public witness to the occurrence is the baby taxi driver P.W. 2 Aslam who failed to recognise the accused persons and he could not say the name of the baby taxi driver or the number of the babi taxis from which the contraband phensidil syrup was recovered and he did not see from whose physical possession the said syrups was recovered. The baby taxi driver in question being neither a witness nor an accused in the case and no neighbouring shop-keeper having been examined as a witness in the case, the prosecution case becomes doubtful. Under such circumstances the accused are entitled to benefit of doubt. Md. Farque Hossain and 2 others Vs. The State, 15BLD(HCD)163 Ref: 1973 Cr1. L. J. (All) 1096—Cited Section—114(g) Benefit of Doubt In order to succeed the prosecution must prove its case beyond all reasonable doubts by cogent reliable and sufficient evidence. The accused is entitled to get all benefits of doubt till the persecution succeeds in proving its case convincingly. Simply because several other cases are pending against the accused persons, no adverse presumption can be drawn against them in determining their guilt. The State Vs. Md. Musa alias Musaiya alias Shafir Bap, 15BLD(HCD) 169 Ref: 5 BLD (HCD) 9; 46 DLR (HCD) 77; 27 DLR (AD) 29; IIDLR (SC) 84; 20 DLR 780; A.I.R. 1916 (All) 50; SC Cases 1982, 368 (1); 1IBLD(HCD) 295—Cited. Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282. Section—114(g) Benefit of Doubt In a case where bitter enmity between the parties is proved some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. In the absence of such corroboration of the evidence of interested witnesses, the accused becomes entitled to the benefit of doubt. When FIR mentions gun shot injuries on the head and waist of victim Waliullah but the postmortem report does not mention any such injuries on the body of the victim and the Investigating Officer did not find any alamat of firing, the prosecution case becomes doubtful. Serajul islam and others Vs. The State, 15BLD(HCD)613 Section—114(g) Benefit of doubt Witnesses to the case being totally disinterested and they having deposed uniformly on the material question of recovery of the revolver from the possession of the appellant, the case has been proved against him beyond the shadow of reasonable doubts. In such circumstances, the appellant is not entitled to the benefit of doubt. Mahbubnr Rahman Khan alias Tipu Vs. The State 16BLD(AD)268 Section—114(g) Benefit of doubt For securing conviction in a criminal case the prosecution must prove beyond all reasonable doubts the individual liability of each and every accused person. Since there were fourteen inmates living in the house of occurrence on the fateful night and the prosecution has failed to prove beyond doubts as to which of them actually committed the alleged murder of victim Chapa, it cannot be said that the guilt of the 3 appellants has been proved. Although the defence plea that some miscreant has committed the murder from out side the window falls through and it is found that victim Chapa was murdered by some of the inmates of the house, still then since individual liability of the appellants could not be ascertained, the accused are entitled to get benefit of doubt. Zahirul Alam Kamal and another Vs. The State, 16BLD(HCD)428 Ref: 39 DLR(AD)177—Cited Section 114(g)— The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. Section 114(g)— Withholding of charge-sheet witnesses—In a case where there is no eye-witness or circumstantial evidence, it is essential that next-door neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR 282. Section—114(g) Wireless Telegraphy Act, 1933, Section—5 When an action is taken or decision is taken by maintaining a file, that file must be produced before the court to show that the act was done properly. In the instant case, the relevant file has been withheld. Hence, presumption under section 114(g) of the Act shall apply. Inspite of repeated orders, the file was not produced by the respondents with whom those were lying. In such circumstances, the Court is constrained to draws an adverse presumption under section 114(g) of the Act. Chowdhury Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459. Evidence Act, 1872 Section 114(g)– Non-examination of material witness and the adverse presumption against the genuineness of the prosecution case Convict-petitioner was convicted for the offence under section 19(3) of the Narcotics Control Act, 1990 and conviction and sentence were also affirmed by the Sessions judge in Appeal. The learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any evidence on record showing that the land wherefrom the ganja plants were recovered actually belongs to the convict-petitioner. Shasher Ali Vs. The State 12 MLR (2007) (HC) 38. Evidence Act, 1872 Section 114(g)– Non examination of material witness cited in the chargesheet raises adverse presumption. Conviction based only on the evidence of police personnel held unsafe. In the instant case the convict appellants were convicted and septet iced only on the evidence of police personnel. No independent witnesses were examined. Moreover the evidences were contradictory. The learned judges held the charge against the convicted appelants not proved beyond doubt and acquitted them. Uzzal and Golarn Rasul alias Mamun Vs. The State 15 MLR (2010) (HC) 311. Evidence Act, 1872 Section 114(g)– Adverse presumption for non-examination of material witness Onus of proving the charge against the accused beyond all reasonable doubt entirely lies upon the prosecution. Non-examination of material witness without satisfactory explanation raises adverse presumption against the prosecution case resulting in the acquittal of the convict-appellant on benefit of doubt. Linckon Dewan @ Dewan Nurul Huda Vs. The State 11 MLR (2006) (HC) 432. Section—114 (e) Public Notice — Presumption of service of such notice — Public notice for acquisition of property being an official act a presumption is available under the Evidence Act that it has been regularly performed unless the contrary is proved — Emergency Requisition of Property Act (XIII of 1948), S. 5(1). Government of Bangladesh, represented by the Deputy Commissioizer, Dhaka and others Vs. Basharatultah being dead his heirs and successors: Fade Karim and others; 1OBLD (AD)110 Section—114 Presumption of Judicial or official Acts—Whether illustration (C) of the section provides that all acts are presumed to have been rightly and regularly done. Illustration (C) of section 114 of the Evidence Act provides that all acts are presumed to have been rightly and regularly done — This presumption applies to judicial as well as to official acts — Where judicial or official act is shown to have been done, it is presumed to have been done rightly and regularly complying with the necessary requirements. Md. Akhtar Hossain Vs. The Governinent of the People’s Republic of Bangladesh and others; I2BLD (HCD,) 541 Section—114(e)(f) Service of notice u/s. 106 T.P. Act — Notice sent by registered post and returned with endorsement “refused” — Notice presumed to be served — Examination of peon to prove the endorsement is not necessary — Mere denial of the tenant that he did not receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption — General Clauses Act, 1 897 (X of 1897) Dr. Jainshed Bakht Vs. Md. Kainaluddin, 1BLD (HCD) 97Ref. A.I,R. 191 5(Cal)3 13; 39C.W.N. 934; 51C.W.N. 650; 52 C.W.N. 659; 6 DLR267; A.I.R. 1918 (PC) 102; A.I.R. 1958 (Cal) 251; 22 DLR 664; 17 DLR(WP)26—Cited. Section—114 Reserved Forest — Whether in the absence of notification under the Assam Forest Regulation or Forest Act nature of the forest land under the Forest Department as ‘reserved forest’ is affected — Even assuming that the defendant Forest Department did not acquire any title in the suit land of the forest as no subsequent notification required under section 17 of the Assam Forest Regulation VII of 1 891 or under section 20 of the Forest Act, 1927 was issued, even in that case, the possession of the Forest Department in the lands of the notification Ext. A is not denied or disputed and the long possession of the Forest Department is a fact — So under section 114(e) and (f) of the Evidence Act there is presumption that notification under section 17 of the Assam Forest Regulation was duly made -— Forest Department has got title and possession in the suit land or at least a better title and prior possession than thoe of the plaintiff—Assam Forest Regulation (VII of 1891). S. 17. Kanglu Khasia Vs. Divisional Forest Officer and others; 7BLD(HCD)96 Section 114(g) That the plaintiff submitted an applica- tion objecting to the appointment of one of the members of the enquiry commit- tee on the grounds that the said member was Junior to him in service and had strained relationship with him, but the objection was not taken into consideration the office who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the depart- mental review board exonerated him ignoring the said officer's admission that he forged the signature of the respondent in the indent and that evi- dence of the PWS that the signature in the indent was that of the respondent should not had been treated as legal evi- dence for not examining the disputed Signature by a hand writing expert. The learned trial Judges obviously had in his mind section 114(g) of the Evidence Act while considering this issue. DWS & Swearage Authority vs Matiar Rahman (Mohamad Gholam Rabbain J) (Civil) 2ADC 231 Section-114 (g) In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 1 l4(g) of the Evidence Act. Abdur Rahim Vs. Arifur Rahman & Ors 6BLT (HCD)-51 Section-114(g) Suit for redemption of mortgage — before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. 1 is the plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation had been given from the side of the plaintiff for his non-examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination of the scribe led to an adverse presumption against the plaintiff of the fact had he been examined he would not have supported the plaintiffs version of the case of mortgage. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9 BLT (AD)-12 Section- 114(g) Before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. I is the Plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation has been given from the side of the plaintiff for his non- examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non- examination of the scribe led to an adverse presumption against the plaintiff to the fact that had he been examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination against the plaintiff to the fact that had he been examined he would not have supported the plaintiff version of the case of mortgage. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9BLT (AD)-77 Section-114(g) We upon considering the materials on record and considering that none of tile witness including the husband Tuli and Moina was examined and due to their non-examination presumption would be that had they been examine they would not have supported the prosecution stow raises a serious doubt as to the truth of the prosecution case. Khan Yeakub Ali Vs. The State & Ors 16 BLT (AD)255 Section-114(g) The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally knowing the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to have appear before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor (s) who is a material witness as regard particular mater then if not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s). Hajee Lal Miah Vs. Nurul Amin & Ors. 13 BLT (AD)145 Section-114(g) বিবাদী দরখাস্তকারী এই মোকদ্দমায় মূল বিবাদী হওয়া সত্ত্বেও এবং ঘটনাবলী সম্পর্কে সর্বাপেক্ষা ওয়াকিবহাল হওয়া সত্ত্বেও সে নিজে কোন সাক্ষ্য প্রদান করে নাই বা সাক্ষ্য প্রদান না করিবার কোন কারণও আদালতের সম্মুখে উপস্থাপন করে নাই। এই প্রসঙ্গে সাক্ষ্য আইনের ১১৪(জি) ধারার বিধান ও নীতি প্রনিধান যোগ্য। Md. Motiar Rahrnan Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313 Section 114(e)- Presumption of correctness of official acts— So long not rebuted by showing the contrary, the official acts done shall be presumed to have been done duly and correctly. Bangladesh represented by the Secretary Ministry of Land vs. Abul Hossain and others. 3, MLR (1998) (AD) 193. Section-114(g) The alamats including the incriminating articles along with the alleged heroine were not produced before the trial court- The alleged report of the chemical examiner was also not available in the record- material witnesses the I/O and the chemical examiner, none of them was produced as a witness it must be held that the learned Additional Sessions Judge committed illegality is not drawing an adverse presumption against the prosecution under section 114 (g) of the Evidence Act. Ashok Kumar Saha Vs. The State 2 BLT (HCD)-79 Section-114(g) The confessional statement Ext.7 of the confessing accused bears the reference of one Haider Ali son of Janab Ali who is neither witness nor accused in this case. The neighbours as well as the persons who allegedly took part in the occurrence as per confessional statement of the accused Akbor Ali are the relevant witness and non examination of any of them as witnesses or brining them on dock as accused creats presumption U/ S 114 (g) of the Evidence Act and raises a question of doubt in the prosecution and benefit of this defect would go to the accused. Md. Akbor Ali & Ors. Vs. The State 7BLT (HCD)-317 Section-114(g) In view of admitted bitter relationship between the parties as well as the private witnesses so examined in this case it was desirable for the prosecution to examine the close independent and disinterested neighbours. In the face of clear admission that 40/50 co-villagers were present just after the occurrence and they having not been produced in Court to show the bonafide of the prosecution, we find no with alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence. Korban ali & Ors. Vs. The State 11BLT (HCD)-267 Section-114(g) Onus of proof—although the prosecution must prove the guilt of the accused beyond all reasonable doubt, nevertheless after it has been shown that the wife at the relevant time of occurrence was at her husband's house and that she is subsequently found dead an obligation is cast upon the defence to account for the circumstances leading to the death of the deceased failing which the husband will be responsible for the death of the deceased. Gias Uddin Vs. The State 11 BLT (HCD)-8 Section-114(g) In the face of clear admission that 40/50 co-villagers were present just after the occurrence including the chairman and member of local union parishad and they having not been produced in Court to show the bonafide of the prosecution, we find no other alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence. Monu Sheikh & Ors Vs. The State 12 BLT (HCD)-177 Section-114(g) The independent person —'Kamla' kader who was allegedly residing in the P.O. house in the night of occurrence having been with-held, we find no other alternative but to hold that had he been examined in this case, would not have supported the occurrence as alleged. Monu Sheikh & Ors Vs. The State 12 BLT(HCD)-177 Section-114(g) The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally knowing the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to have appear before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor (s) who is a material witness as regard particular mater then if not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s). Hajee Lal Miah Vs. Nurul Amin & Ors. 13 BLT (AD)-145 Section 114(g) It is a cardinal rule in the law the best available evidence should be brought before fee court to prove a fact or the points in pue- when material witnesses are not called in a case and no sufficient explanation has been given for their absence, the court may draw a presumption that they would not support the prosecution. Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473 Section-114(g) In the instant case, the neighbors as mentioned above are the material witnesses who have been withheld from the examination and the prosecution has also failed to convincing reasons for their examining them. The prosecution examined on relatives and evidence cannot be relied n. Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473 Section – 114(g) None of the brothers and sons of the deceased was examined. Not a single neutral neighbouring people was examined. Due to their non-examination presumption would be had they been examined they would not have supported the prosecution story. Non-production of the wife of the deceased, an alleged injured witness, raises serious doubt as to the truth of the prosecution case. Abul Kalam & Ors. Vs. The State 14 BLT (HCD)214 Section -114(g) বিবাদী দরখাস্তকারী এই মোকদ্দমায় মূল বিবাদী হওয়া সত্ত্বেও এবং ঘটনাবলী সম্পর্কে সর্বাপেক্ষা ওয়াকিবহাল হওয়া সত্ত্বেও সে নিজে কোন সাক্ষ্য প্রদান করে নাই বা সাক্ষ্য প্রদান না করিবার কোন কারণও আদালতের সম্মুখে উপস্থাপন করে নাই। এই প্রসঙ্গে সাক্ষ্য আইনের ১১৪(জি) ধারার বিধান ও নীতি প্রনিধান যোগ্য। Md. Motiar Rahman Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313 Section-114 (g) In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 114(g) of the Evidence Act. [Para- 13] Abdur Rahim Vs. Arfin Rahman & Ors 6 BLT (HCD)-51 Section 114(h) The law is well settled that the extent of jurisdiction of the revisional Court is limited. The revisional Court is within its jurisdiction in reversing the judgment of the lower Court if the same is the result of misreading of the evidence or has been made leaving the legal evidence out of consideration or that while arriving at the decision misconstrued the documentary evidence or left the vital evidence out of consideration without assigning any reason. If the judgment of the lower Court does not suffer from any one of the aforesaid defects the revision- al court is not competent to disturb the finding and decision arrived at by the last Court of fact. Bangladesh the DC. Jessore vs Ershad Ali Mondal (Md. Ruhul Amin J)(Civil) 2ADC 293 Section 114(e)- It appears that in terms of the provisions of section 114(e) of the Evidence Act, there is a preemption that the above compromise decree was duly passed and the writ of delivery possession was duly executed and there is nothing on record to show otherwise. Since the plaintiff could not controvert the above presumption by producing materials before the court, the plea that the above order sheet and writ of delivery of possession were merely paper transaction can not stand. Our anxious consideration to the facts and circumstances and the evidence on record we find that the High Court Division considered the matter in its proper perspective and we find no irregularity or illegality in the decision of the High Court Division. Accordingly the appeal is dismissed without any order as to costs. ..... Shah Alam (Md.) =VS= Islam(Md.), [5 LM (AD) 407] Section 115- Doctrine of promissory estoppel- The Appellate Division held that if the Ministry of Education had the authority to affiliate a college/school for providing degree courses, in that case also, a teacher of a private college/school could claim a right of the privilege of MPO after such affiliation on the said doctrine. This doctrine may be invoked if the decision of the authority deprives a person some benefit or advantage which he either had been permitted to enjoy by the authority, which he could legitimately expect to continue until he is intimated some rational grounds for withdrawing it and he has been given an opportunity to comment, or has received assurance from the authority that they will not be withdrawn without giving him an opportunity of advancing reasons for contending that they should not be withdrawn. Gov. of Bangladesh & others Vs. Md. Akram Ali & others, [1 LM (AD) 114] Production of Additional Evidence- This is an Evidence Matter:- exclusionary provision restricting the production of additional evidence with the exceptions as mentioned in clauses (a) and (b) of rule 27 (1). In the facts of the instant case, in the absence of any order of the appellate Court requiring production of any evidence, any party may, by permission of the appellate Court, produce the deed in question "for any other substantial cause", as provided in Rule 27 (1) (b). ..... Harunur Rashid & others -VS- Mosammat Yarun Nissa & others, [1 LM (AD) 385] Section-115 The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. [Paras- 17 & 20] Bangladesh Pajatan Corporation & Ors. Vs. Md. Mafizur Rahrnan & Ors. 2 BLT (AD)-49 Section-115 Whether suit is riot barred by estoppel and waiver. The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession he had to pray for year- ly lease of the suit property for saving his possession, albeit under protest and lost no time in coming to the court for vindication of his grievance—In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were misled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. [Paras- 12 & 13] Maran Mondal & Ors. Vs. A. D. C. (Rev). 6 BLT (HCD)-22 Section- 115 Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the pre-emptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it— Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. [Para- 11] M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6 BLT (HCD)-66 Section- 115 The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellants counsel. Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. [Para-8] Md. Jahangir Kabir Vs. Bangladesh 4 BLT(AD) -14 Section—115 Whether an attesting witness is bound by the contents of a document- There is no evidence in the instant case that Sheikh Babu had any knowledge about the contents of the document attested by him beyond his mere attestation. Therefore it cannot be said that Sheikh Babu was in any way bound by the transaction by the kabala in question. [Para—9] Amanatullah & Ors Vs. AU Mohammad Bhuiyan & Anr 6 BLT (AD)-1 Section 115- Estoppel— So long not rebuted by showing the contrary, the official acts done shall be presumed to have been done duly and correctly. Jahangir Kahir Vs Bangladesh represented by Secretary Ministry of Home Affairs. 1, MLR (1996) (AD) 46. Section 115— Promissory Estoppel— Previous approval of Government and subsequent cancellation— When arbitrarily done—The approval given by the Government to certain proposal does not constitute promissory estoppel. Government can no doubt, cancel its approval but it must do so by showing sound and proper reasoning, otherwise such action cannot be sustainable in law. The Government must act consistently and -not whimsically. The Chairman, Board of Investment and others Vs. Bay Trawling Limited and others. 3, MLR (1998) (AD) 54. Section 115- Estoppel and Waiver— Cannot be against statutory rights—There can be no estoppel or waiver against statutory rights. To act in a particular way under protest to protect one's right from impending hazards, does not constitute estoppel or waiver. Dayat Chandra Mondal and others Vs. Assistant Custodian, Vested and non­resident property and A.D.C (Rev) Dhaka and others. 3, MLR(1998) (HC) 18. Promissory Estoppel— When the promisor cannot fall back—Once promise is made the promisor is legally bound to execute lease deed in favour of the promisee. The promisor cannot fall back and is bound by the promissory estoppel. Dhaka City Corporation Vs. Government of Bangladesh and others. 1, MLR (1996) (HC) 256. Section 115—Waiver and estoppel— Plea of waiver and estoppel in order to operate as a bar has to be proved by cogent evidence. Rokeya Begum Vs. Md. Abu Zaher & others. 5 MLR (2000) (AD) 171. Section 115— Estoppel—Statutory rights-not defeated— Statutory right cannot be taken away by a mere assertion of allegations of estoppel or waiver or acquiescence. Unless proved by cogent and reliable evidence, the principle of estoppel does not operate. Abdus Sobhan Sheikh Vs. Kazi Moulana Jahedallah & others. 5 MLR (2000) (HC) 140. Section- 115 The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. Bangladesh Parjatan Corporation & Ors. Vs. Md. Mafizur Rahman & Ors. 2BLT (AD)-49 Section-115 Whether suit is not barred by estoppel and waiver. The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession, he had to pray for yearly lease of the suit property for saving his possession, albeit ‘under protest and lost no time in coming to the court for vindication of his grievance— In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were M/Sled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. Maron Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22 Section- 115 Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the preemptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it—Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6BLT (HCD)-66 Section-115 The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellant’s counsel. Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. Md. Jahangir Kabir Vs. Bangladesh 4BLT (AD)-14 Section—115 Whether an attesting witness is bound by the contents of document. There is no evidence in the instant case that Sheikh Bagu had any knowledge about the contents of the document attest ed by him beyond his mere attestation. Therefore it cannot be said that Sheikh Bagu was in any way bound by the trans action by the kabala in question. Amanatullah & Ors. Vs. Ali Mohammad Bhuiyan & Anr. 6BLT (AD)-1 Section-115 Doctrine of Promissory Estoppel Plaintiff remained in possession over suit property since the year 1968 first as a tenant under Md. Amin and then under the Government as an allottee and plaintiff paid Government including all arrear rents and Government also took decision that the suit property would be sold to plaintiff on the price fixed by it, Equity and natural justice demand that plaintiff is not be. deprived of the suit property. Government, thus is very much bound by its promise to sell the property in favour of plaintiff and it cannot now fall back and also cannot say that the suit property would be put to auction—on the strength “Doctrine of Promissory Estoppel” defendant Government is under a legal duty to execute a document of title with respect to suit property on acceptance of the price fixed by valuation committee constituted by defendant Government and the selling of suit property by auction to anybody else otherwise than plaintiff is illegal. Govt. of Bangladesh Vs. A.S. M. Ferojuddin Bhuiyan 9BLT (HCD)-149 Section —115 Admittedly, Fourth-Twelfth Defendants- Opposite parties as Plaintiffs Instituted a suit being Title Suit No.306 of 1978 in the Sixth Court of Munsif at Dhaka for declaration that exparte decree passed in Title Suit No. 195 of 1967 is void, fraudulent, in-operative, illegal and not binding upon Plaintiffs. In the plaint, Plaintiff-Petitioner Sreemati Han Rani Basak had been depicted as daughter of Kala Chand Basak, resident of 26, Mohajanpur Lane, Police Station Sutrapur, Dhaka. In the face of showing Plaintiff-Petitioner Sreemati Han Rani Basak as daughter of Kala Chand Basak it does not lie in the mouth of Fourth-Twelfth Defendants-opposite parties to install the case that plaintiff-petitioner Han Rani Basak is not the daughter of Kala Chand Basak and Fourth-Twelfth Defendants are bound by their admission and they Stand estopped/precluded to say that plaintiff is not the daughter of Kala Chand Basak. Sree Narayan Chandra Basak & Ors Vs. Govt. of Bangladesh & Ors (HCD)506 Section-115 read with State Acquisition and Tenancy Act, 1950 Section-95 and 95A The plaintiff attested the Kabala of defendant No. 1, exhibit A(2). The plaintiff explained in his deposition that he put his signature on the request of the defendant and that he thought that the deed was in respect of other land. He also stated that they live as neighbors—by attestation to deed exhibit A(2), the plaintiff cannot be held to have knowledge of the contents of the deed, exhibit A (2) in order to be estopped under Section- 115 of the Evidence Act for claiming restoration of the suit and under Section-95 and 95A of the State Acquisition and Tenancy Act, 1950. Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238 Section—115 Estoppel — Plaintiff’s karsha right sold in auction — Defendants claiming kol-karsha right setting aside the auction sale under section 174(3) of B.T. Act impleading the plaintiff in the proceeding — Plaintiff is estopped from denying defendant’s kol-karsha. Sunil Kumar Biswas Vs. Mohammad Idris and others, 1BLD (AD)367 Section—115 Estoppel — Series of litigation’s between the parties ultimately concluded by a compromise decree — Defendant gave up his claim of Tk, 1000/- as a consideration of compromise — Subsequent suit which in effect is directed against the compromise is hit by the principle of estoppel. Abdul Mujib Chowdhury Vs. Syed Abdul Mutalib and others; 1BLD (HCD)467 No estoppel against Statute — Whether this rule of law can be invoked by one to takes advantage of his own fraud — The rule is attracted only when its invocation will defeat the public policy behind a Statute — If, in disregard of the obligation imposed by section 75A upon the landlord he has alienated his land he cannot subsequently raise an objection to nullify his own action — The plaintiff- appellant has filed the suit certaintly not for the benefit of the Government, nor is there any reason to suppose that the statutory provisions would be nullified if the declaration sought for is not granted — If he is allowed to succeed he would be enabled to take advantage of his own fraud. Sree Sudhir Chandra Saha and another Vs. Matiran Bewa, being dead her heirs Nazmul Rahrnan Sarker and others; 6BLD (AD) 182 Ref. A.I.R. l937 (PC)1 14; (1903)30 l.A. 114; (l964)I6DLR(SC)685 —Cited. Section—115 Right of Pre-emption — Whether barred by acquiescence and estoppel — When the pre-emptor negotiates the sale under pre-emption or the facts are such that his acquiescence can be safely concluded, the doctrine of estoppel comes into full play — His conduct will be a bar even though he files his application for pre-emption in a statutory right — State Acquisition and Tenancy Act, 1950(XXVIII of 195 1),S.96. Moulana Abdul Karim Vs. Nurfahan Begum and others; 6BLD (HCD) 125 Ref. A.I.R. 1968(SC) 933; PLD 196 l(SC)436(444); 22 DLR 449; A.I.R. 1947 (Oudh)81; A.I.R. 1951 (Nagpur) 451; AIR. 1950(Madhya Bharat)85; A.I.R. I 925( Lahore)57; A.I.R. 1928(P.C.)190— Cited. Section—115 Resignation from service — Employee of Biman Bangladesh Air Lines resigning with immediate effect allowed to resume his duties — Whether the employer in such a position waived its right to continue the services of the employee — When a permanent employee, as in the present case resigns with immediate effect the employer is required neither to accept nor to reject the resignation — The question of acceptance or refusal of resignation arises only when the employee gives a notice of resignation — Since the petitioner resigned with immediate effect, he has only to surrender his pay in lieu of notice period — But by allowing the employee to resume his duties from 4.8.87 the employer literally waived its right to discontinue his service — It is as if the employee has not taken any notice of the letter of resignation and thus caused the employee to believe that he was still in service — the employer was therefore estopped by its conduct from saying that the employee was no longer in service — Bangladesh Biman Corporation Employees (Service) Regulations, 1979, Peg. 53. M.A. Mannan Vs. Biman Bangladesh Air Lines, 9BLD(HCD)516 Section—115 Promissory Estoppel — Principle of When a party acts upon Government assurance, the latter is estopped from denying such position particularly when there is no formal contract executed between the parties and a right vests in him. There was acute shortage of sugar in the country and the government encouraged the importation of sugar under Wage Earner’s Scheme exempting so much of customs duty and sales tax leviable thereon as in excess of 50% and 10% respectively — The importer respondent imported sugar acting upon assurance of the Government — the subsequent notification dated 6. 11 .84 withdrawing confessional rate with retrospective effect can have no operation when a right has vested in the importer inasmuch as the respondent had acted upon assurance that the favourable terms mentioned in the notification dated 16.10.1984 will be applicable to him — He acted upon his assurance and now the Government cannot fall back upon it and say LriZ he will have to pay customs duty at the rate that prevailed on 16.11.1988, which reduced the exemption —- This is clearly a case of as the respondent had acted on the assurance given by the Government and a right vested in him could not be taken away. The Collector of Customs, Customs House, Chittagong and others Vs. Mr. A. .Hannan, 1O BLD (AD) 216 Section—115 Estoppel — Bar of estoppel when not applicable — Once a candidate is declared Chairman by notification in the official Gazette he acquires a legal status and by his subsequent conduct, it cannot be said, he created an estoppel against statute itself. Hazrat Ali Vs. Election Commission and others; 10BLD (HCD)157 Section—115 Estoppel-Under the Retirement Rules, 1968, the word ‘competent authority’ has been defined as the authority competent to make appointment of such service — From the definition, it is clear that the competent authority to make appointments in Barisal Pourashava is the executive head, namely the Chairman. Since the appointment of the petitioners was made by the then Chairman of the Pourashava and since the petitioner joined their services on the basis of those appointment letters and rendered 12 years uninterrupted service their appointment cannot now be said to be made irregularly and, if any irregularity was there initially, it has been cured by lapse of time. Kanaklata Halder and others Vs. Barisal Pourashava and another 10BLD (HCD) 381 Section—115 Estoppel When on his own volition, the Respondent induced the Appellate to allow him to retire from service, which is akin to and in substance an order of release, the Respondent now cannot be allowed to say that his order of release is illegal. He cannot be allowed to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. Bangladesh Parjatan Corporation, represented by its Chairman and others Vs. Mr. Mofizur Rahman and another, 14 BLD (AD) 61. Section—115 Estoppel To bring a case within the scope of estoppel as defined in section 115 of the Evidence Act, the person claiming the benefit must show that he was not aware of the true state of things. If he had the means of knowledge about the real state of affairs, estoppel will not operate. Sarafat Hossain Vs. Dr. Islam Uddin, 14 BLD (HCD) 253. Section—115 State Acquisition and Tenancy Act, 1950, Section—96 In the absence of conclusive evidence of waiver to operate against him, the pre-emptor cannot be estopped from exercising his right of preemption. Md. Ajmat Ali Vs. Jamaluddin and others, 14 BLD (HCD) 563. Ref: Akhlasur Rahman and others Vs. Shafur-ullah and ors, 14 BLD(AD)20—Cited. Section—115 Estoppel A party cannot blow hot and cold in his stand before a Court of law. He is not entitled to approbate and reprobate in the same breadth. After having participated in the election and being defeated, the defendant cannot disturb the functioning of the elected manager without getting the election of the latter declared illegal by a competent Court. Anwar Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260. Ref: 42 DLR 498; 5 B.C.R. (AD) 85; 35 DLR(AD) 182; 10 BLD 17; (1947) A.C. 46 (PC) 56; (1940) A.C. 412; (1940) All. E.R. 425; Halsbury’s Laws of England, 3rd Edition, Vol. 15 Pagel68; 5BLD(AD) 54-Cited Section—115 Plaintiff having proved the contract, payment of full consideration and delivery of possession in part performance of the contract, the Railways or the Government is estopped from challenging the validity of the contract concluded with the plaintiff. Pronab Kumar Chakraborty and Others Vs. The Govt. of the Peoples Republic of Bangladesh and others, 14 BLD (HCD) 2. Section—115 Bangladesh Service Rules, Rule—9 Admittedly, the plaintiff was granted LPR on 31 May, 1990, but he gave representation to the Government for reconsideration of his age which was rejected on 30 August, 1990. Thereupon the plaintiff received all his dues upon retirement in September 1991. It is after that he brought the suit on 2 October 1991 challenging the memo dated 23 December 1989. These facts clearly show that the plaintiff had acquiesced in the decision taken by the Corporation about the date of his retirement and waived his claim for extension of service. Rule 9 of the Service Rules sets a bar to a change of the date of birth of the incumbent as recorded at the time of appointment. Bangladesh Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan being dead his heirs: Bali Begum and others, 19 BLD (AD) 106. Ref: 36 DLR (AD)69: BCR1984(AD) 51; 1990(3) SCC 685(705) and (1972) AC1027— Cited. Section—115 Transfer of Property Act, 1882, Section—43 In order to find an estoppel, the representation i.e. a party’s declaration, act or omission must be clear, definite, unambiguous and unequivocal. The real state of things were known to both the parties namely the transferor and the transferees of the kabala and there is no proof of erroneous misrepresentation and as such there is hardly any scope of the operation of section 43 of Transfer of Property Act. Ali Akbar Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122. Ref: 1921 Cal. L. 3. Vol. 33 page 522; 6PLR 181, 43 DLR(AD) 87; 42 DLR 434- Cited. Section—115 Estoppel The action of the Local Revenue Officer in accepting the plaintiff and his successive predecessors-in-interest as tenants in respect of the suit property under the Government is binding on the Vested Property Department and the latter cannot claim the suit property as a vested property. The action of the A.D.C, (Revenue), who is the local administrative head of both the revenue department and the vested property department, allowed himself to be indulged in oppressive litigations and this was strongly deprecated. Additional Deputy Commissioner (Revenue), Narayanganj Vs A.K. M.Latiful Karim and others, 17 BLD (HCD) 249. Ref: (1949) 1 K.B. 227—Cited. Section—115 Estoppel To establish a case of estoppel or waiver it is essential to show that the party alleged to have waived his right acted in such a manner as to lead the other party to believe and act that such rights have been enforced. The essence of the act of estoppel lies in the fact that one party by his conduct has led the other party to alter his position. A case of estoppel has not been made out in the instant case. Md. Jahangir Kabir Vs Bangladesh, 16 BLD (AD) 85. Ref: 45 DLR 112; 42 DLR (AD) 189; A.I.R. 1984 (SC) 921; 18 DLR (SC) 354; Indian Appeals (189 1-92) Vol. XIX, page 203; Ambur Nair V.Kelu Nair, AIR 1933(PC)l67. S.115-Estoppel in criminal cases- The rule is that where an authority is permitted by law to function only once and communicates to the Court that it has functioned in a particular way it -will not be permitted by the Court to say that subsequently it functioned in a different manner as it subsequently did. This rule which insists on finality and consistency in litigation is not estoppel as enacted in section 115 of the Evidence Act which only is also an effort to solidify security cooperation with both Japan and the United States to better deal with nuclear threats from North Korea. Abdul Gani Vs. State (1959) 11 DLR 338: (1959) PLD(Dac) 944 -Child witness-Competency to testify, when should be decided. It is not imperative for the court to subject a child witness to a preliminary examination before his evidence is received. The Court may, when the witness is actually giving evidence in Court, satisfy itself that he is capable of understanding the questions that are put to him and of giving an intelligible reply. In such a case the evidence is certainly admissible. It is, however, desirable that the Court should make such preliminary investigation in order to save the time of the Court if it decides against the competency of the witness to give evidence before IL The State Vs. Abid Hossain, (1967) 19 DLR 408. -Utmost care should be observed in acting upon the testimony a child wit- ness. A child has a strong memory but little con- science and can easily be tutored by interested per- sons to depose according to their desire and it is, therefore, of utmost importance that the court care- fully scrutinizes the evidence of the child before accepting it. The State Vs. Abid Hossain, (1967) 19 DLR 408. -Child witness-A boy of 13 is not a child witness of tender age-His evidence cannot be reject ed merely on an objection that he is a boy of 13 years. The State Vs. Badiuzzaman, (1973) 25 DLR 41. -Child witness-Testing his intelli- gence, before his evidence, not a condi- tion precedent, There is statutory provision of law that requires the Court to test the intelligence of a child witness at the initial stage to find out whether he is capable of understanding questions and giving intelligible answers. It is, however, highly desirable that the in telligence of a child witness should be tested before commencement of his examination. This section does not lay down that testing of the intelligence of a witness of tender years is a con- dition precedent to the reception of his evidence in Court. Hari Pada Debnath Vs. The State, (1967) 19 DLR 573. -Capability test of a child witness Where it is evident from the testimony of a child witness in the dock that he was capable of giving ra- tional and consistent answers and was capable of un- derstanding the right and the wrong, mere absence of a note in the deposition sheet of the trial court as to the capability test of the child witness is not a matc- rial irregularity so as to render the whole evidence unacceptable. State Vs. Abdur Rashid, (1972) 24 DLR 18. -Competency of a child witness to depose. The general rule is that the capacity of the per- son offered as a witness is presumed. The child wit- ness (in the present case) having been put to the test laid down in the section, the trial Court proceeded to examine the witness. The competency of children is regulated not (by their age) but by degree of understanding which they appear to possess. Abdullah Shah Vs. The State (1968) 20 DLR (WP) 63. -Child witness-Testing of intelligence of witness of tender age is not a condition precedent to the reception of his evidence-Preliminary examina- tion of a child witness before receiving his evidence is not imperative-Person who can understand ques- tions and can give rational answers to them is a competent witness to testify in Court. The State Vs. Badiuzzaman, (1973) 25 DLR 41. Section—116 Estoppel of tenant and licensee Section 116 of the Evidence Act provides that neither a tenant/licensee nor anyone claiming through him can deny the title of the landlord! licensor after admitting his title at the beginning of the tenancy. Smriti Ranjan Das and another Vs. Bifan Behari Roy and anr, 14 BLD (HCD) 573. Ref: Ramdashi Paul Vs. Sarabala Dashya and others, 14DLR 810; Joykumar Datta and others Vs Sitanath Datta, 4 DLR 401—Cited. Section—116 Tenant’s estoppel — It is founded upon a contract — when a person enters into possession of immovable property as a tenant of another person then neither he nor any body claiming though him shall be permitted during continuance of the tenancy to deny the land-lord’s title however defective that title might be. Hajee Abdus Sattar Vs. Mahiuddin and other. 6BLD (AD) 224 Ref: 49 l.A. 299; A.LR. 1933 (PC)29 — Cited. Section—116 Estoppel — Estoppel against a tenant — A tenant during his possession is estopped from denying that the landlord who let him into possession had no title at the time entry — The estoppel is however restricted to denial of the title at the commencement of the tenancy — It is open to the tenant even without surrendering possession to show that since the date of commencement of tenancy, the title of the landlord came to an end or that he has been evicted by the paramount title holder — The defendant is estopped from questioning or denying the exclusive title of the plaintiff landlord who let him into the possession of the suit property at the beginning Of the tenancy. Fazal Kariin Vs. Sree Dulal Kanti Baidya and another; 6BLD (HD) 1O5 Ref: A.I.R. 1913 (PC) 96; AIR. l935(PC)59; A.I.R. 1966 (SC) 629;— Cited. Evidence Act, 1872 Section 118–Child witness is competent when found capable of proper understanding. Telephonic conversation recorded leading to the arrest of the accused and recovery of the victim supported by ocular evidence can well form the basis of conviction. The conviction and sentence based on consistent and reliable evidence on record to the exclusion of any reasonable doubt affirmed by the High Court Division are held by the apex court perfectly justified. Jasimuddin and another Vs. The State 11 MLR (2006) (AD) 162. Section—118 Child witness Under section 118 of the Evidence Act a prosecutrix, who is the victim of rape or of sexual offence, is undoubtedly a competent witness and she is entitled to receive the same weight as is attached to an injured person in case of physical violence. The same degree of care and caution must therefore attach to the evaluation of her evidence as in the case of an injured witness in a case of physical violence. Once the Court is satisfied that the evidence of the prosecutrix can be safely accepted and relied upon there is no need for any corroboration to her evidence. Jahangir Hossain Vs The State, 16BLD (HCD)238 Ref: (1960) 12 DLR (SC) 165; (1967) 19 DLR (SC) 259;13 BLD(AD)79; 1952 SCR 377; A.I.R. 1983(SC)753; A.I.R. 1980 (SC) 658; 47 DLR 54: 15 BLD 34—Cited Section 118— All persons, who can understand the questions put to them or can give rational answers to those questions are competent to testify before a court. It is not imperative for the court to subject a child witness to preliminary examination before reception of his evidence. The court may satisfy itself during the progress of the evidence in court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is, desirable that the court should make an endorsement about its satisfaction. Seraj Miah vs State 49 DLR 192. Section 118—Though a child witness, PW 2 received injuries in the hands of the appellants when his father was done to death and the witness having testified about the factum of the occurrence and the same having not been shaken in cross-examination, the witness, though a child, should be believed in the facts of the case. Forkan alias Farhad and another vs State 47 DLR (AD) 149. Section-118 Mode of Ascertaining Competency of a Child witness. It appears that in the instant case, a minor boy aged about 5/6 years is the only eye witness to the occurrence but in his cross -examination stated that he did not see the occurrence and he deposed as per dictation of the information of the case with whom he has been living since the occurrence-Learned Sessions Judge while examining a child witness did not look to his intelligence and competency and there is no such endorsement in the order sheet or deposition or judgment- there is also no sufficient corroboration by any independent and reliable witnesses- learned Sessions Judge was not justified in conviction the accused appellants relying on the solitary evidence of a child witness. Kawsaun Nessa & Anr VS. The State 3 BLT (HCD)-122 Section-118 The position of a prosecutrix is a little different from that of an injured person simpliciter. The possibility of a prosecutrix being a collaborator cannot always be ruled out. Therefore a corroboration of the evidence of prosecutrix by at least some circumstantial evidence or a medical examination is always desirable. Md. Hasan Vs. The State 7 BLT (AD)-378 Section—118 Evidence of a child witness Section 118 of the Evidence Act provides that all persons who can understand the questions put to them or can give rational answers to those questions are competent witnesses to testify in Court. It is not imperative for the Court to subject a child witness to a preliminary examination before reception of his evidence. The Court may satisfy itself during the progress of the evidence in Court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is desairable that the Court (trial court) should make an endorsement about its satisfaction in the ordersheet, in the deposition sheet or in the body of the judgment. There is no legal compulsion that the Court must ask preliminary questions to test the capacity of a witness to testify. Siraj Miah Vs The State, 17BLD (HCD)295 Ref: 1952 SCA 40; 143 Indian Cases 479; 11 DLR (Dhaka) 338; 25 DLR 4—Cited Section 118— All persons, who can understand the questions put to them or can give rational answers to those questions are competent to testify before a court. It is not imperative for the court to subject a child witness to preliminary examination before reception of his evidence. The court may satisfy itself during the progress of the evidence in court that the witness is capable of understanding the questions put to him and of giving intelligible reply. In case of such satisfaction, the evidence becomes admissible. It is, desirable that the court should make an endorsement about its satisfaction. Seraj Miah vs State 49 DLR 192. Section 118- Child witness- A child as young as 5/6 years can depose evidence if she understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinised and caution has to be exercised in each individual case. The Court has to satisfy itself that the evidence of a child is reliable and untainted. Any sign of tutoring will render the evidence questionable if the Court is satisfied, it may convict a person without looking for corroboration of the child's evidence. As regards credibility of child witness, it is now established that all witnesses who testify in Court must be competent or able to testify at trial. In general, a witness is presumed to be competent. This presumption applies to child witnesses also.... Abdul Haque (Md.) -VS- The State, [10 LM (AD) 472] Section 118 Preliminary examination of a child witness Testing of intelligence of a witness of a tender age is not a condition precedent to the reception of his evidence. Therefore, preliminary examination of a child witness is not at all necessary.....Abdul Haque (Md.) =VS= The State, [10 LM (AD) 472] Section—118 Child witness A child witness is a competent witness to give evidence in the Court provided it appears from its deposition that it could understand the questions put and give rational answers thereto. If the child, though of tender age, was found to be intelligent to understand the questions put to him and to give rational answers to those questions then his capacity to give evidence was on the same footing as that of any other adult. But in such a case it would be desirable for the Court before examining the child as a witness, to test his intellectual capacity by putting a few simple and ordinary questions to him and to record a brief proceeding so that the higher Court may feel satisfied as to the capacity of the child to give evidence. The State Vs Ali Hossain,18BLD (HCD) 655 Ref: AIR 1937 (Patna) 662; 1BLC (1996) 173; 43DLR(AD)(1991)234;A1R1953 (Patna) 246—Cited S.123-Claiming privilege against production of document or giving of an- swers. Privilege under the section against production of documents can be claimed only when the disclosure of such papers may be prejudicial to the State. A mere claim of privilege against production is not enough. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13. Claim of privilege should be supported by evidence in court giving some indication as to how the disclosure would affect the State's interests. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13. -The words in the section cannot contemplate allowing privilege to be claimed where departmental proceedings have been taken against a clerical subordinate and in which the production in evidence of the documents concerned might have been of very mate- rial assistance to the Court in arriving at a correct decision over the matter in issue before it. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13. -Some indication should be given to the court as to why privilege under section 123. Evidence Act against production of a document is claimed; what injury to the public is apprehended, or what affairs of State are involved in the matter. Without such indication the Court may draw an adverse inference from the non-production of the document concerned. Crown Vs. Sultan Ahmed (1957) 9 DLR (WP) 13 Where documents are wrongly withheld claiming privilege under section 123, inference against prosecution will be drawn. Crown Vs. Sul- tan Ahmed (1957) 9 DLR (WP) 13. -The discretion given to the head of a department is clearly confined to granting or withholding permission to the giving of such evidence: but he has no power to determine the question whether the evidence is of the description in respect of which his permission is required. PLD (1955) (Lah.) 39 The expression "affairs of State" in sec. 123 covers only such affairs of State whose disclosure or divulgence would be likely to seriously injure or jeopardise some important interest of the State. PLD (1955) (Lah) 39. -Question whether disclosure of particular document would be against public interest or not rests with head of department concerned and Court cannot go into the matter-Copies of documents of privileged official records procured by illegitimate means by unknown persons and exhibited in Court-Such evidence cannot be permitted to be adduced (per M. Akram, J.) Syed Abul A'ala Moududi Vs. State Bank of Pak. (1970) 22 DLR (WP) 59. -Evidence as to affairs of State-Unpublished official record relating to affairs of State are privileged and no one is permitted to give evidence relating to such save with permission of the head of department concerned-Decision regarding preliminary question whether particular document belongs to class of unpublished record relating to affairs of State or not must rest with court. Syed Abul A'ala Moududi Vs. The State Bank of Pakistan, (1970) 22 DLR (WP) 59. Secs. 123-124-The appellant was put in detention under Punjab Public Safety Act. The Senior Superintendent gave no reason for his arrest nor indicated the nature of prejudicial act and when questioned as a witness in Court about it he claimed privilege against disclosure under sections 123 and 124, Evidence Act. Held: It was for the Court to determine whether the privilege had been rightly claimed. If the Court comes to the conclusion that the witness was entitled to claim privilege no hostile inference could be drawn. If, on the other hand, the privilege was not rightly claimed, it was open to the Court to compel the witness to answer the questions put to hum. Chirag Din Vs, Crown (1951) 3 DLR (FC) 136. -Orders of detention are frequently based on confidential information which public officers can- not be made to disclose in view of provisions of sections 123 and 124. This, however, does not mean that the public officer concerned cannot be asked the reasons which "satisfied" him that the detention was necessary. When such a question is asked, it is for the witness to claim privilege and bring the communications which he does not wish to disclose within the provisions of secs. 123 and 124. Md. Hyat Vs. Crown (1951) 3 DLR(FC) 172 (189-190), -The officer ordering the arrest is not justified in refusing to answer material questions with regard to factum of his satisfaction by virtue of sec.124, Evidence Act. PLD (1950) (Lah) 451. -The Court has to determine, when the witness is in the witness box, as to whether he is entitled to claim privilege with respect to certain communication or whether the privilege cannot be claimed thereof. If the privilege is properly claimed, no hostile inference under illustration (g) of section 114 of the Evidence Act can be made against him. Md. Hyat Vs. Crown (1951) 3 DLR(FC) 172 (188 ri-h. col.). -When a claim of privilege is made, it should be decided then and there. The question cannot be re- served for decision until the final judgment is given. If a public officer claims privilege without due care and caution, the Court is not relieved of the duty of determining whether sec.124 of the Evidence Act is not being made a device for keeping back from the Court information which the Court is entitled to obtain. Md. Ilyat Vs. Crown (1951) 3 DLR (FC) 172 (189 ri-h. col.) -Applies only when privilege is claimed by a public officer-Confidential reports on Government officers are not documents relating to affairs of State. Ferozuddin Vs. Crown (1954) 6 DLR 162. -Witness claiming privilege with valid grounds--Presumption that disclosure, if made, would have gone against him. PLD (1950) (Lah.) 429 Section 124- Judicial Ethics- Judicial ethics is an expression which defies definition. In the literature, wherever there is a reference to judicial ethics, mostly it is not defined but attempted to be conceptualized. According to Mr. Justice Thomas of the Supreme Court of Queensland, there are two key issues that must be addressed: (i) The identification of standard to which members of the judiciary must be held; and (ii) a mechanism, formal or informal, to ensure that these standards are adhered to. A reference to various dictionaries would enable framing of a definition, if it must be framed. Simply put, it can be said that judicial ethics are the basic principles of right action of the Judges. It consists of or relates to moral action, conduct, motive or character of Judges; what is right or befitting for them. It can also be said that judicial ethics consist of such values as belong to the realm of judiciary without regard to the time or place and are referable to justice dispensation. On the question of cross-examining the Chief Justice similar prayer was made in Venoy Chandra (Supra). The Supreme Court outright rejected the prayer observing that the criminal contempt of court undoubtedly amounts to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under the common law and the statute law, if any, has always been summary. The Court explained the summary procedure that the matter shall be disposed of by affording an opportunity to the contemnor. The Court observed "In such procedure, there is no scope for examining the Judge or Judges of the Court before whom the contempt is committed. To give such a right to the contemnor is to destroy not only the raison d'être for taking action for contempt committed in the face of the Court but also to destroy the very jurisdiction of the Court to adopt proceedings for such conduct." No further explanation is necessary in this regard. This is the accepted principle being followed in this sub-continent over a century and even if the contemnors have no knowledge, the learned Counsel having expertise of appearing before the highest Court of the country must have minimum knowledge in this regard. We are shocked in the manner of the learned Counsel has defended the contemnors and drafted the petitions and the affidavits. Normally in contempt proceedings the lawyers are cautious in the selection of words and language, and for their mistake the litigants suffer. These types of proceedings are sensitive matters and the Judges always caution the lawyers in admitting or defending the contemnors. In this case the lawyer has shown callousness. So this Court has committed no infirmity in rejecting the prayers made by the contemnors. The second offending part of the publication is that the writer questioned how the members of Salauddin Qader Chowdhury's family can meet one of the Judges who is in seisin of the matter? The writer did not disclose the name of the Judge but in his defence, he disclosed the name of the Judge and he was none but the Chief Justice of Bangladesh himself. This statement is also false, inasmuch as, the contemnors admitted in their affidavits that no member of the Salauddin Qader Chowdhury's family met the Chief Justice. According to them, some one on their behalf met the Chief Justice and requested him not to keep A.H.M. Shamsuddin Chowdhury, J. in the Bench. Now the question is, how did he come to know that the family members of Salauddin Qader Chowdhury met with Chief Justice? Assuming that someone met the Chief Justice, now the question is did he commit any remotest type of misconduct only by meeting someone? The Chief Justice is the only authority to constitute benches of both the Divisions. If the litigants have any grievance against any Judge then who will decide such apprehension? If the Chief Justice did not have such power the administration of justice will collapse. Therefore, the Chief Justice is gateway to the litigants, lawyers and other interested persons. The Counsel had no semblance of idea about the functions of the Chief Justice of Bangladesh. Besides administration of justice, being the guardian of the judiciary, the Chief Justice does administrative works relating to the entire judiciary in Bangladesh and in course of his administrative works, he sometimes takes notice of grievances of the litigants through their representatives, and in person who are unable to engage a lawyer. This is the normal business of the Chief Justice. The Constitution empowers the Chief Justice to constitute benches of both the Divisions. Sometimes the Chief Justice excludes a particular Judge from any bench and sometimes he gives power to another Judge and sometimes directs the Courts to refrain from hearing any particular matter and gives direction in which manner the particular type of case or cases should be disposed of. The contemnor questioned in which path the relatives of Salauddin Qader Chowdhury met the Chief Justice. The simple answer is, in the same path A.H.M. Shamsuddin Choudhury,J. met the Chief Justice. He questioned whether the victim's family members met any Judge but in the affidavit he himself has admitted that someone requested the Chief Justice on his behalf. He then questioned whether it was within the ethics of a Judge? This writer has exceeded all norms. He questioned ethics of the Chief Justice. He then said, the Prime Minister postponed the tour program of one Justice abroad. The writer was pointing fingers at the Chief Justice. The Chief Justice in open Court declared that he postponed the program but did not explain anything. He then directed the Attorney General in open Court to make an official statement as to whether the office of the Prime Minister or the Prime Minister had prevented the Chief Justice to go abroad. The Attorney General being the chief Law Officer of the country intimated in open Court that neither the Prime Minister nor anyone from the office of the Prime Minister ever made any request to the Chief Justice preventing him from going abroad. Learned Counsel for the contemnors objected to this statement and prayed that the Attorney General should make a statement by sworn affidavit. We are astounded in the way the learned Counsel was nakedly making submissions which were beyond the norms and practice of this Court. The Court outright rejected his prayer and accepted the statement. So the writer in a calculated manner wanted to demean and undermine the power and the authority of the Chief Justice of Bangladesh and the Attorney General. He also made wild allegations against the Chief Justice of Bangladesh. He made libelous statements. These statements are not only contemptuous but they are also criminal offence. The next statement he made is that, the tour of the Chief Justice was sponsored by the BNP-Jamat organizations. Here again how he was dared to make such statement is beyond comprehension. He then posed the question, "why a disputed businessman went abroad ahead of the tour. What was happening there?". Of course possibly, he regained his senses and thereby could not disclose the name of the businessman, although he had the courage to disclose the name of the Chief Justice in the conversation with A.H.M. Shamsuddin Choudhury,J. wherefrom he got the information that the tour was sponsored by BNPJamat organizations. The writer used such derogatory language which stunned the Judges present in the Bench. The contemnors did not disclose or type all the complete sentences of the conversation and intentionally delete some words. Though the contemnors produced the audio cassette, the members of the Bench did not feel any interest to listen to the conversation once they came to know that this conversation was made between the Chief Justice and A.H.M. Shamsuddin Choudhury,J. The learned Counsel submitted that Swadesh Roy did not collect the audio cassette from A.H.M. Shamsuddin Choudhury,J. He admitted that the conversation was made with none but A.H.M. Shamsuddin Chowdhury,J. He failed to notice that the Chief Justice maintains secrecy and confidentiality whenever a Judge meets him. Even if it is assumed that A.H.M. Shamsuddin Chowdhury,J. did not record the conversation, then the reporter secretly got it recorded or collected from other source but he failed to comprehend that he cannot do so far, it itself is an offence pure and simple. The subject of the discussion being related to the administration of justice and secret, it should not be made public and such publication is detrimental to public interest. It is not a communication between two Judges. It is a conversation between a puisne Judge and the Chief Judge in confidence which imports a special degree of secrecy. It is a paramount necessity that the Judges of the highest Court should always act within the scope of their duties for the public interest and the administration of justice. And it is very greatly in the public interest that the Judges who are holding constitutional posts and concerned in every aspect of maintaining the rule of law, should act as a single unit, bound to each other by a certain loyalty to the rule of law, always of course within the scope of public interest. Where such a feeling, which may rightly be described as esprit de corps does not exist, it is clear that the process of rule of law must be gravely prejudiced. The law is conscious of this requirement and enforces it by means of laws and constitution. In this connection section 124 of the Evidence Act is relevant, which reads: "No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that public interest would suffer by disclosure. The purpose of this section is clearly wider the mere overcoming of such objection. Here the writer stands on the same footing and he has committed criminal offence. The concerned Judge was very much eager to clarify some words from the lips of the Chief Justice and repeatedly kept on putting questions. So it was apparent that he was deliberately putting the questions and met the Chief Justice on previous occasions requesting him to include him in the Bench and the last one was a deliberate attempt with a view to maligning the Chief Justice. The writer claims that he is a law abiding citizen and his statements are based on truth and bonafide. We failed to understand which statement is true. None of the statements as discussed above are true except the conversation of the Chief Justice with A.H.M. Shamsuddin Choudhury, J. The topic of the conversation was the request of Chowdhury, J. to keep him in the Bench for hearing. The Chief Judge turned down his first request and then he wanted to be included in the hearing of the appeal in respect of the property of Mr. Moudud Ahmed. So A.H.M. Shamsuddin Chowdhury, J. met the Chief Justice before hearing of Salauddin Qader's appeal or at least in the midst of the hearing. He knows that in the midst of hearing, a Judge cannot be included in a matter. We fail to understand why the impugned reporting was made after the conclusion of the hearing of the appeal of Salauddin Qader Chowdhury on 16th July, 2015. Why the writer chose to publish this report after the conclusion of hearing and before the delivery of the judgment? If he had the bonafide intention as claimed, what prevented him from publishing the same before hearing of the matter? Why he published such a report just before the delivery of the judgment? Who would be benefited thereby if the Chief Justice had withdrawn himself from the Bench? Certainly it was Salauddin Qader Chowdhury. The writer might have ill motive to frustrate the delivery of judgment of Salahuddin Qader Chowdhury, otherwise he could have published the same before the hearing or at least before the conclusion of hearing. Learned Counsel appearing for the contemnors submitted that as the writer had collected materials relating to a news about movement of Salauddin Qader Chowdhury's family members who met the Chief Justice, there was some days delay in publishing but it was published with the motive that the Judges should be cautious at the time of delivery of judgment. This itself is a serious type of contempt. This is a lame excuse for, even if it is assumed that the writer or the editor has no knowledge about the law that during the pendency of a matter, any publication is made which interferes with the administration of justice amounts to criminal contempt. Their Counsel should know about it. This publication not only interferes with the administration of justice but also scandalizes the Court and the Judges, and therefore, the writer and the editor have certainly committed criminal contempt. A.H.M. Shamsuddin Chowdhury, J. is the junior most Judge of the Appellate Division. By a sworn affidavit the contemnors stated that Chowdhury, J has consented to become a witness on behalf of the contemnors. We thought the statement as a ridiculous one but when the learned Counsel was serious to the statement we were beyond bewilderment. (Paras:133- 147); ..... The State VS Mr. Swadesh Roy, [2 LM (AD) 576] S.125-Secret information obtained in the ordinary course of duty and duly authenticated may constitute sufficient materials for making a detention order. In support of the allegation brought against the detenu Government produced before the High Court some authenticated secret report. It was contended that such copies of the statement produced by the Government have got no evidentiary value to be treated as a material for consideration. Held: The right of the State to claim privileges in respect of secret information can never be denied. Such right is also acknowledged under section 125 of the Evidence Act, and a police officer cannot be compelled to say whence he has got any information as to the commission of an offence. The official reports coming ordinarily in the course of official duty from the archives of the Government kept in the Special Branch of the Police and duly athenticated by the Superintendent of Police are worth consideration whether they constitute sufficient materials for making an order under-rule 32 of the Defence of Pakistan Rules, 1965. M.A.Aziz on behalf of K.M.Obaidur Rahman. Vs. Province of East Pakistan, (1969) 21 DLR 503. S.128-Official communication-To constitute a privileged occasion, there must be an interest or duty in the person to whom the communication is made as well as in the person making it. At the conclusion of the arguments a petition was filed before us on behalf of the Central Government stating "the pamphlet has, as is clear, given offence to the High Court and since its apparently inadvertent distribution to the High Court amounted to breach of courtesy which was never intended, the Central Government is sorry that it inadvertently gave offence to the High Court for which it has the highest respect" Held: This cannot be treated as an apology showing consciousness of a wrong done. The plea of privilege is not available in the case. Edward Snel- son Vs. Judges of HC Lahore (1964) 16 DLR (SC) 538. S.132-Proviso. The question whether a certain statement was made by a witness under compulsion must depend upon the facts of a particular case. The compulsion may be either express or implied, but if from the circumstances of a case it can safely be inferred that the witness believed himself to be under compulsion to make a statement, he would be entitled to claim the protection of the proviso to section 132 of the Evidence Act, regardless of the fact whether he had objected to the question or not. When a person is called as a court witness in a case and he is questioned by the court then there would be an inference of an im- plied compulsion within the meaning of the proviso to section 132 of the Evidence Act. Dr. M.Abdul Sami Vs. State (1962) 14 DLR (WP) 1: 1962 PLD (Lah.) 271. Ss. 133 and 134-Where bitter enmity with parties is admitted some sort of Ss. 134 and 136-Relationship of witnesses-Mere relationship of the witnesses with the deceased or informant cannot be the only ground to discard the evidence corroboration of the interested witnesses is required as a rule of prudence. State Vs. Rustom (Criminal), 18 BLC (2013)-HCD-429. S.133-Accomplice is a person who in fact participates in crime-Informer is one who catches bribe-taker-No corroboration of the statement of the 'informer is necessary as is required for an 'accomplice'. Zafar Ali Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320. -Accomplice's evidence-corroboration. Corroboration of the evidence of an accomplice in material particulars does not mean that the independent evidence by itself must be sufficient, both as to the corpus delicti and as to the identity of the accused, for the purpose of establishing his guilt. All that is required is that the corroborative evidence should indicate that the story given out by the approver is substantially true. The main evidence is that of the approver's-the corroborative evidence lends support to it by showing that it is not untrue, Nur Alt Gazi Vs. State (1961) 13 DLR 740: 1962 PLD (Dac) 249 -Confession of a co-accused, even when corroborated, cannot be the foundation of a conviction. Confession of a co-accused is obviously evidence of a very weak type, and that, even when corroborated, it does not by itself "amount to proof" and, as such, "cannot be made the foundation of a conviction". State Vs. Badsha Khan (1958) 10 DLR 580. Accomplices Confession of a co-accused under section 30 stands on the same footing as that of an accomplice' under section 133. State Vs. Bad- sha Khan (1958) 10 DLR 580. -Reporter of a newspaper taking down the speech of person who is guilty of contempt of court is not an accomplice. State Vs. Abdur Rashid (1958) 10 DLR 568. -In the absence of a corroboration from an in-dependent witness, there can be no conviction in a trap case. Abdur Rashid Vs. State (1962) 14 DLR 272. -Mere acceptance of a business deal brought about by another person does not make the acceptor an accomplice. Abdul Monsur Ahmed Vs. State (1961) 13 DLR 353: 1960 PLD (Dac) 753. -Evidence of accomplice or bribe-giver. It is true that corroboration is not required in every minute detail or particulars of the evidence of an accomplice or bribe-giver, but it is certain that on two broad points such corroboration is absolutely essential, namely, (1) as to the implication of the accused and (2) as to the offence itself. Osimuddin Sarkar Vs. State (1961) 13 DLR 197: 1961 PLD (Dac.) 798. -Conviction on the evidence of an accomplice-Principles to follow. Though a conviction founded upon the evidence of an accomplice supported by the confession of a co-accused is justifiable in law under section 133, nevertheless the Courts should be slow to depart from the rule of prudence, which required some indo- pendent evidence implicating the particular accused, Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39. -The danger of acting upon accomplice's evidence is not merely that the accomplice is on his own admission a man of bad character and who after- wards to save himself betrayed his former associates and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39. Approver who had given a detailed narrative before the committing Court, when examined in the Session Court, denied all the facts to which he had deposed before the committing Magistrate and said that he knew nothing about the crime. Held: Apart from the suspicion which always attaches to the evidence of an accomplice, it would plainly be unsafe to rely implicitly on the evidence of a man who had deposed on oath to two different stories, Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39. -Corroboration of approver's evidence-Rule to follow. Majority-The rule as regards corroboration of the approver's evidence does not require the prosecution to prove by independent evidence that the pris- oner committed the crime but only to produce such reliable and independent evidence as shows or tends to show that part of the approver's testimony where- in he states that the prisoner was one of the persons who took part in the commission of the crime is true hay Vs Crown (1955) 7 DLR (FC) 37 (43 rt. k.col.) -If the view was ever taken that corroborative evidence must, apart from the testimony of the accomplice, prove that the accused committed or was connected with the crime, it must be deemed to run counter to the principle governing the corroboration of accomplice's testimony, Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (44 left-h. col.). Standing by itself corroborative evidence may not be criminating at all and may be susceptible of an entirely innocent explanation but considered with the story of the approver it may produce on the mind of the Court or the jury a profound conviction that the accused must have acted in the manner alleged by the approver. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 (44 left-h. col.). -A piece of cloth worn by the murdered man at the time of his assault was found in the place pointed out by the approver who deposed that it was thrown over there by the accused and beyond this statement of the approver there was nothing to connect the accused with the cloth. Held: The fact that the piece of cloth was re- covered from the place pointed out by the approver was of a value as supporting the credibility of the approver's story; but the statement made by the ap- prover that it was the accused who threw the cloth to the place where it was found is of no more, or no less, value than his statement that the accused took an active part in the murder. (1950) 2 DLR (PC) 39. -An accomplice cannot corroborate himself. The statement made by an approver under sec- Lion 164 plainly does not amount to the corroboration in material particulars which the Court requires in relation to the evidence of accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition. (1950) 2 DLR (PC) 39 Section 133-An accomplice by accepting a pardon becomes a competent witness and may, as any other witnesses, be examined on oath. As per provision of section 133 of the an accomplice shall be a competent witness, Gias Uddin Al-Mamun vs State, 69 DLR (AD) 322 Section 134-A single testimony if convincing and found to be full complete and self-contained, whether corroborated by other witness or not, is sufficient to bring home the charge and, as such, there will be no illegality in convicting an accused on the basis of such single evidence. Jharu vs State, 69 DLR (AD) 362 Section 134-The weight of the evidence is to be judged objectively with reference to the quality of the evidence on record. Masum vs State, 64 DLR 133 Section 134-The evidence of the RAB personnel does not inspire confidence to maintain the order of conviction and sentence; particularly, when delay was made in lodging the FIR and producing the accused person before the Magistrate. Dolon vs State, 64 DLR 501 Section 134-Evidence of close relations of the victim cannot be discarded more particularly when close relations does not impair the same. Straight forward evidence given by witness who is related to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close relation will be last person to screen real culprit and falsely implicate a person. State vs Sujon Deb, 66 DLR 324 Section 134-Section 134 of the Evidence Act is incorporated in connection with the evidence of a single witness upon which the prosecution case can stand; but it should be highly reliable and unshaken as well as credible. A full, complete with full corroboration and self-contained evidence of a single witness by circumstances of the case along with the medical evidence on record can only justify the conviction of the accused of a case and not other than this. Ayub Ali vs State, 67 DLR 567 Section 134-The established jurisprudence is clear that corroboration is not a legal requirement for a finding to be made. "corroboration of evidence is not necessarily required and a Chamber may rely on a single 'witness' testimony as proof of a material fact. 'Sole witness' testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt." Chief Prosecutor vs Abdul Quader Molla 65 DLR (ICT) 1 Section 134 – No particular number of witness is required to prove the charge. Conviction and sentence may be based on evidence of a solitary eye witness. Section 27 –Statement of an accused in police custody leading to the recovery of incriminating material is admissible in evidence. Alibi taken must be established by the accused by producing convincing evidence. Code of Criminal Procedure, 1898 Section 134-Conviction of an accused can safely be based on the solitary evidence of an eye- witness, if evidence is found full, complete and self-contained and further, the testimony of the solitary eye-witness could not be shaken in any manner by the defence in cross-examination. Hazrat Ali vs State (Criminal) 75 DLR (AD) 40 Section—134 It provides that no particular number of witnesses is necessary to prove any fact. The consensus of judicial opinion is that conviction can be based on the solitary evidence of a witness, if not tainted in any way. In the instant case, since the evidence of the only witness seeing the infliction of the fatal dagger blow on the neck of victim Abdun Nabi by condemned prisoner Munshi Miah suffers from infirmities and a number of persons present near about the place of the occurrence that took place in broad daylight do not support the informant in so far as it relates to the infliction of the fatal injury, it is highly unsafe to base conviction on the solitary evidence of the informant. Discrepancy in the medical evidence makes the prosecution case doubtful. The State Vs. Munshi Miah, 15BLD (HCD)139 Ref. 29 DLR (AD) 21i—Cited Section 134—In order to convict an accused solely on the basis of a solitary witness like the police officer or the person who made the search and seizure, the Judge must ensure that such witness is disinterested and the evidence is unimpeachable and the other witnesses to the search who are alleged to have resiled from their previous stand are unworthy of credit. Talebur Rahman alias Taleb and 2 others vs State 49 DLR 167 Section 134—Even on the basis of a single witness a conviction can be maintained but such a witness must be fully reliable, above reproach and not shaken. Ashok Kumar Saha vs State 46 DLR 229. Section 134—Law does not require any particular number of witnesses to prove a case and conviction may be well-founded even on the testimony of a solitary witness provided his credibility is not shaken. Al-Amin and 5 others vs State 51 DLR 154 Section 134—It is true that under section 134 of the evidence Act conviction can be based on the Evidence of a single witness but the evidence of that witness must be of unimpeachable character. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466 Section—134 Number of witnesses Though it provides that no particular number of witnesses is required for the proof of any fact but still then in order to convict an accused solely on the basis of the evidence of police personnels, who made the search and seizure, the Judge must ensure that their evidence is unimpeachable and unshaken in character and the other witnesses to the search and seizure, who are alleged to have resiled from their previous stand, are unworthy of credence. Talebur Rahman alias Taleb Vs. The State, 16BLD(HCD)86 Ref: 8BLD 106; 21 DLR 684; 44 DLR 159—Cited Section—134 Law does not require any particular number of witnesses to prove a case. Conviction may be well founded even on the testimony of a solitary witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. As a general rule, a court can act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Evidence on a point is to be judged not by the number of witnesses produced but its inherent truth. Al Amin Vs. The State, 19BLD (HCD) 307 S. 134- Sole witness' testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt." The Chief Prosecutor Vs. Abdul Quader Molla (ICT), 65 DLR (2013)-HCD-1. S. 134-Conviction may be given relying on the evidence of a single witness if such evidence is full, complete, self contained and trustworthy. State Vs. Matiur Rahman (Criminal), 18 BLC (2013)-HCD-89. Section-135 When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs’ wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate. Held : Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. Shamsul Alam Ors. Choudhury & Ors. Vs Amirul Rahman 3BLT (HCD)-170 Section- 135 When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate. Held: Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. [Para-7] Shamsul Alam & Ors Vs Amirul Rahman Choudhury & Ors 3 BLT (HCD)-170 Sections—137 and 139 Examination and cross-examination of witnesses—Appreciation of evidence The proper procedure for appreciation of evidence is to evaluate the evidence of a witness in its entirety and not to bank on a particular portion of it, evidence of a witness in his cross-examination is as good as that of his examination-in-chief, while considering the legal incidence and the essence of the impressions that it creates upon the mind of the Judge. In arriving at the proper conclusions, the Court is also required to take note of the attending circumstances of the case, which at times become a determining factor in judging the guilt or innocence of witness ignoring his cross-examination an vital circumstances surrounding the case, must be held to be no proper finding in the eye of law. Taizal Biswas Vs The State, 20BLD (HCD)322 Section-137 and section 139 By Section 137 and 139 of the Evidence Act an accused person has been given the opportunity to cross-examine a witness produced by the prosecution or to produce his own witness and evidence in support of his defence. Jahangir Alam Vs. The State 15 BLT (HCD) 191 Non-appearance of vital prosecution witnesses after exhausting the process of Court, specifically after deposition, while did not turn up to face cross in the present case, which are not explained by the prosecution side, the trial Court must give a specific opinion in respect of the evidential value of such depositions of the witnesses against the accused who has not got any chance to cross the witnesses. [73 DLR (AD) (2021) 184] According to section 137 of the Evidence Act, examination-in-chief is followed by cross examination by the adverse party. In a case when a witness specifically makes statement regarding particular facts if the defence did not deny 'such facts', then according to law the deposition deemed to have been admitted. [73 DLR (AD) (2021) 184] Section 137- When a witness specifically makes statement regarding particular facts if the defence did not deny 'such facts', then according to law the deposition deemed to have been admitted- Non-appearance of vital prosecution witnesses after exhausting the process of Court, specifically after deposition, while did not turn up to face cross in the present case, which are not explained by the prosecution side, the trial Court must give a specific opinion in respect of the evidential value of such depositions of the witnesses against the accused who has not got any chance to cross the witnesses. However, both the Tribunal and the High Court Division have failed to discuss the above legal aspects and consequences. According to section 137 of the Evidence Act, examination-in-chief is followed by cross-examination by the adverse party. In a case when a witness specifically makes statement regarding particular facts if the defence did not deny 'such facts", then according to law the deposition deemed to have been admitted. In the instant case facts are totally denied. The P.W. Nos.3 and 6 have deposed before the Court against the accused appellant but they have failed to appear before the Court to face the cross instead of exhausting the process of the Court for appearance to face the cross by the adverse party. Both the Tribunal and the High Court Division are not justified, rather, have failed to corkscrew the actual facts, circumstances and legal inference relying on such shaky and incredible evidence in convicting the appellant Maksudur Rahman Bipblob. Hence, appellant Maksudur Rahman Biplab is acquitted from the charges levelled against him.....Maksudur Rahman Biplab =VS= The State, [10 LM (AD) 397] Sections 137 and 138-A witness is not entitled to correct his deposition after putting his signature in the deposition sheet and if such a recourse is allowed to be practised by a witness, then the whole purpose of cross examination shall be frustrated and in the process the cross examination shall become a mockery. Sharifullah (Md) Md Tafazzal Hossain, 69 DLR (AD) 61 Section 137-Cross-examination- The cross-examination of those witnesses should be limited only to the matters concerning the alternation or addition of the charges not beyond that. Gias Uddin al- Mamun (Md) vs State, 70 DLR (AD) 123 Section- 138 Examination of witnesses and their cross-examination The right of the adverse party to cross- examine a witness is never confined to the facts deposed to by the witness in his examination-in-chief but it extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant in the suit. Md. Khalilur Rahman Vs. Md. Asgar Ali 7 BLT (HCD)-352 Section- 138 Principle on Re-Examination It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in re-examination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. [Para-8] Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6 BLT (HCD)-47 Section-138 Examination of witnesses and their cross-examination The right of the adverse party to cross- examine a witness is never confined to the facts deposed to by the witness in his examination-in-chief but it extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant in the suit. Md. Khalilur Rahman Vs. Md. Asgar Ali 7BLT (HCD)-352 Section-138 Principle on Re-Examination It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in reexamination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6BLT (HCD)-47 Section—138 Order of examination of witnesses— Examination-in-chief, cross-examination and re-examination Section 138 of the Evidence Act provides the order in which witnesses are to be examined, cross-examined, and, with the permission of the Court, re-examined. After a witness is sworn or affirmed, he is first examined by the party calling him. This is known as examination-in-chief, the object of which is to elicit from the witness all material facts within his knowledge relating to the party’s case. The adverse party has then the right to examine the witness and this is called cross- examination, the object of which is two-fold: to weaken, qualify or destroy the case of the opponent and to establish the party’s own case by impeaching the veracity, accuracy, credibility and the general value of the evidence given in examination-in-chief. This exercise has justly been described by the jurists as one of the principal and most efficacious tests for deciphering the truth. Where there is no ambiguity or there is nothing to explain in the statement of a witness, the prayer for re-examination with the sole object of giving a chance to the witness to undo the effect of cross-examination is not contemplated in law. Ihteshamur Rahman Vs. Most. Masuda Khatun and others, 18 BLD (HCD) 134. Section 138— Right to cross examination is not confined to the extent of the matters of examination in chief— The right of adverse party to cross examine a witness is not confined only to the matters of his examination in-chief but it extends to all the relevant facts involved in a suit. Khalilur Rahman (Md.) Vs. Md. Asgor Aii. 5 MLR (2000) (HC) 158. Legal presumption of execution and registration of an old document— Possession is material factor— So long the contrary is not shown, there is the legal presumption that the disputed Kabala deed which is 50 years old, was legally and validly executed and registered. In deciding the genuineness of a very old Kabala deed, the possession of the land of the deed should be considered as very material and cogent factor. Lutful Karim and others Vs. Shahidullah and others. 3, MLR (1998) (AD) 215. Section 138— Re-examination of witness—When can not be done— Section 138 provides for how witnesses are to be examined, cross-examined and re-examined. After a witness has been examined and cross-examined can be re-examined only for clarification of any ambiguity in his statement. Re-examination of a witness cannot be allowed to destroy the effect of cross-examination. Ihteshamur Rahman Vs. Masuda Khatun and others. 3, MLR (1998) (HC) 172. S. 139–Credibility of testimony oral and circumstancial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. State Vs. Abdul Quiyum (Criminal), 18 BLC (2013)-HCD-556. Section—145 Admissibility of previous statement — A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his previous admission, if duly proved, is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref. A.I.R. I 946(Lahore) 65(FB); A.I.R. 1957 (Allahabad) I (F.B); A.I.R. 1966(SC) 402—Cited. Section-145 read with Code of Criminal Procedure, 1898 Section-161 The Statement of an accused person which is not a confession but contains an admission of certain relevant facts is admissible under sections 18-21 of the Evidence Act, provided it is voluntary, even though retracted, if found to be true by the trial Court which is required to be corroborated by evidence of other witnesses in order to be the basis for conviction of the co-accused respondents and as regards statement under section 161 of the Code of Criminal Procedure the same is an statement and is not an evidence in the case and as such not at all admissible in law unless the witnesses are confronted with the said statement while deposing on dock having deposed contrary to the said statement, the same could not be of any avail to the prosecution but the statement could be utilized under section 162 of the Code of Criminal Procedure to contradict the witnesses in the manner provided under section 145 of the Evidence Act. Thus the statement under section 161 of the Code of Criminal Procedure is restricted to an investigation by the police for the purpose of police report. The State Vs. Md. Mominullah (Mohan) 15 BLT (AD) 251 Section—145 Recital in kabala — Question of admissibility — Plaintiff is not an executrix the kabala, she is a mere recipient of it — The recital of kabala per se shall not go into evidence unless the person who has made such recital raises any objection there for. Feroja Khatoon Vs. Brajalal Nath and others; 10 BLD (HCD) 218. Section 145—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilized under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387. Sections 145 & 155—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker and others vs State 49 DLR 480. Sections 145 & 155—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192 Section 145- Discrepant Evidence- Discrepancies in the statement of a witness- On factual side, Mr. Shajahan's greatest emphasis was on what he called discrepancy in testimony. He tried to have us to accept that those who deposed before the Tribunal, did not say many of those things when they were examined by the I.O. during the investigation stage. Under our general criminal procedural law, i.e., Cr.P.C. Section 161 provides for the recording of statements from potential witnesses by the I.O's. Although those statements do not form parts of evidence, they do nevertheless have great evidentiary significance in that the defence can under Section 162 Cr.P.C., read with Section 145 of the Evidence Act, 1872, use such statements to prove that as deposition made by a prosecution witness in Court is discrepant with the statement he made to the 1.0. at the investigation stage, they should not be treated with credence. Although provisions of both Cr.P.C. and Evidence Act have been explicitly excluded by the Act, sanctity of statements made to the I.O. is still of great relevance in that discrepancies in the statement of a witness at different stages on the same fact is bound to dent his credibility. (Paras:748- 751);.....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] Section 145-Contradiction statement made by the witnesses- It is assumed that contradiction of the statements of witnesses can be drawn in the manner provided under section 145 of the Evidence Act, it may best be said that the witnesses omitted to make some statements before the investigating officer as they were not asked properly, and those omissions cannot altogether be treated or termed contradiction within the meaning of sub-rule (ii) of Rule 53 of the Rules of the Evidence. The contradiction can only be drawn from statement made by the witnesses in course of their examination-in- chief. The defence practically has failed to bring any such contradiction which affects the prosecution case as a whole. The appellant failed to show any such vital contradiction. (Para-225); Ali Ahsan Muhammad Mujahid -VS- The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1] Section 146—Mere relationship of the witness should not be a ground for discarding his evidence unless he is found to be biased and lying. Sarwardy Kamal and others vs State 48 DLR 61. Sections—154 and 142 Witness—Cross-examination by the party calling it It provides that the Court may, in its discretion, permit a party to put questions to its witness which are usually put in cross- examination by the adverse party. It may so happen that due to gaining over or unwillingness or faulty memory a witness does not support the case of the party who brings him in the witness box but gives unfavourable evidence, in that case the Court is given the discretion to relax the rule of ‘leading questions’ as defined in section 142 of the Evidence Act and allow the said party to put questions to its own witness as in done by the cross-examination by the adverse party. Md. Babul Vs. The State, 18BLD (HCD) 386 Ref: A.I.R. 1931 Cal 401—Cited Section 154—Even if there is some discrepancy in the evidence of a witness with regard to some part of the case, for that his entire evidence on the remaining part should not be discarded. Abdus Sukur Mia vs State 48 DLR 228. Sections 154 & 142—Court may in its discretion permit a party to put questions to its witness which are usually put in cross-examination by the adverse party. Babul vs State 50 DLR 490 Sections 154 & 155—The evidence of a witness is not to be rejected either in whole or in part simply because of being cross-examined by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable, must be taken into account and assessed like any other evidence. Amir Hossain Dhali and others vs State 49 DLR 163 Section-154 Hostile witness The evidences of witness is not to be rejected either in whole or in part simply because of being cross-examination by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable must be taken into account and assessed like any other evidence. Amir Hossain Phali Vs. The State 5 BLT (HCD)-89 Evidence Act (1 of 1872) Section 154 Hostile witness-When a witness resiles at the trial from his statement made under section 164 he is declared hostile and may be cross examined by the party who produced him as witness. Evidence Act (I of 1872) Section 154 Hostile witness-When a prosecution witness is declared hostile, the court under such circumstances, in its discretion may allow the party, who calls him as witness, to put any question in the form of cross-examination. Such discretion is unqualified and is quite apart from any question to the hostility. The value of the evidence of such hostile witness, cross examined by the party calling him, cannot he used for or against either party. Such witness loses all evidentiary value. When a witness has been discredited on one point he may not be given credit on another. [72 DLR (AD) (2020) 47] S. 154-Where the witnesses declared hostile do not mention the overt act of the accused but place of occurrence can determined on the basis of admission of the alleged occurrence, even if there be no mention of place of occurrence in the sketch map. The State Vs. Farid Miah & Ors (Criminal), 33 BLD (2013)-HCD-22 S. 154-If the evidence of the P.W.13 and. Rajab Ali fits in which the attending circumstances of the case, then it may be taken into account and accepted along with other evidence on record. In other words, simply because the P.W. 13 Md. Rajab Ali is a hostile witness, his evidence can not be rejected out of hand. Masumur Rahman @ Masum @ Ahmed Vs. The State (Criminal), 2 LNJ (2013)-HCD-243. S. 154-Hostile witness-In the instant case we have noticed that besides the witnesses declared as hostile the evidence of their witnesses clearly has made out a case to warrant conviction. Non-consideration of the evidence of the hostile witnesses, in such view of the matter did not, according to us disprove the prosecution case otherwise proved by independent witnesses. Abdur Rouf Sarder Vs. The State (Criminal), 21 BLT (2013)-AD-95. Section 155(3) The provision of section 38 of the Companies Act gives the Court a wide discretion to scrutinize any fraud, error or undue influence or misrepresentation in the matter of transfer of any share and grant relief commensuration with the appropriate possible relief contemplated under the said section. Ahmed Impex ( Private) Ltd & Ors vs Moqbul Ahmed ors. (Mohammad Fazlul Karim J(Civil) 2 ADC 107 Section—155 Impeaching credit of witnesses—When the prosecution made out a case in the Court totally different from the F.I.R. case and the statements of the witnesses recorded under section 161 Cr.P.C. and the witnesses are found to be suppressing material evidence, the prosecution case becomes unworthy of credence. Md. Zakir Hossain alias Jakir Hossain and others Vs. The State, 14BLD(HCD)509 Section 156—The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. One must remain alive to the fact that in a case of rape no self respecting woman especially a college girl would come forward in a court just to make a humiliating statement against her honour and dignity such as involved in the commission of rape upon her. The court must not cling to fossil formula and insist a corroborative testimony, even if, taken as a whole the case spoken to by victims of sex crimes strikes a judicial mind as probable Judicial response to Human Rights cannot be blunted by legal bigotry. Al-Amin and 5 others vs State 51 DLR 154. Section 157-The statement of a fact by a witness should be made to the competent authority at or near the time when the fact to which the statement relates took place. What should be the span of time of making such statement by a witness is basically a question of fact and no hard and fast rule can be laid down in that regard. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section-157 Section 157 of the Evidence Act provides! that the former statement of a witness to furnish corroboration can be proved only if-it was made "at or about the time," where the fact took place. In order to corroborate the testimony of a witness any former statement made by such witness relating the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved. This section clearly speaks of the intention of the law that when the previous statement is to be use corroboration it must satisfy certain specifies^ conditions that the statement should be ma in relation to a fact which is so fresh in mind of the narrator that he may be assured to be speaking under pressure of collection alone, undiverted by any per motive i.e. the conditions should be such import proper legal sanctions in case should be variations from the truth. The State Vs. Enayet Hossain @ Endu 12 BLT(HCD) 242 Section 164- Confessional statement of an accused has to be recorded in accordance with the provisions of section 364 of Cr.P.C. Abscission of an accused from immediately after the occurrence may be a circumstance pointing at the guilt of the accused. Sentence must be proportionate to the nature and gravity of the offence committed. In order to secure conviction of an accused the prosecution must prove the charge against him by consistent and reliable evidence beyond all reasonable doubt. Evidence of a solitary eye witness can be the basis of conviction. Confessional statement though not binding upon other co-accused may be considered as corroborative evidence against the other co accused and along with other evidence can form the basis of conviction. State Vs. Gaush Mea @ Rana (Md.) and others 11 MLR (2006) (HC) 417. Appellate Court can take additional evidence Evidence Act (1 of 1872) Sections 165 The appellate Court, in an appropriate suit if required, is not only empowered to take additional evidence, which would not amount to filling up lacuna caused due to the negligence/failure of any party to the suit, but also competent to call for necessary documents and persons by invoking the Court's power under section 165 of the Act read with sections 30, 31, 32 and Order 19 of the CPC. Under the constitutional duty of superintendence in addition to being invested with the revisional power by the CPC, this Court notifies that when the learned Judges of the subordinate Courts perform their functions as the trial Court's Judge or the appellate Court's Judge, they should not hesitate to resort to the provisions of section 165 of the Act, sections 30, 31, 32 and Order 19 of the CPC in an appropriate case for the purpose of fair and effective adjudication of a suit. The trial Courts and appellate Courts, under the provisions of laws, possess ample powers to summon and, if the situation warrants, then, to compel the appearance of any person in the Court and to produce the necessary relevant papers to the Court and take their deposition as Court Witness/es. [ 73 DLR 54] Section-167 Section 167 of the Evidence Act provides that if there is sufficient evidence to justify the decision then improper admission or rejection of the evidence will be no ground for a new trial. Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6BLT (AD)-137 Section 167— Retrial when can not be ordered—When there are sufficient evidence on record to justify the decision the question of improper admission or rejection of any evidence is immaterial and merely for this no new or fresh trial can. be ordered. Jamaluddin and others Vs. Md. Abdul Majid and others. 3, MLR ( 1998) (AD) 102. Section- 167 Section 167 of the Evidence Act provides that if there is sufficient evidence to justi1r the decision then improper admission or rejection of the evidence will be no ground for a new trial. [Para- 14] Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6 BLT (AD)-137. Admissibility of Evidence Admissibility of Evidence in the stage of appeal 15 MLR(AD)421: Kamaluddin Ahmed Sarwar alias Alhaj Kamaluddin Sarwar being dead his heirs Hasina Banu & others Vs. Mohammad Shahjahan & another: Order 41 Rule 27 of the Code of Civil Procedure: In this case the Additional District Judge admitted the deed of contract the vital document which could not be produced before the trial Court through inadvertence (অসাবধানতা). The appellate Court examined the execution and attesting witnesses and thereafter being satisfied admitted the same into evidence and decreed the suit. The High Court Division upheld the said judgment. The apex Court found nothing wrong therewith and dismissed the leave petition. (Para-7, Mr. Justice Surendra Kumar Sinha). Non Reading of Evidence Code of Civil Procedure (v of 1908) Section 115(1) Revisional Court cannot interfere in concurrent finding of facts, when there is no misreading and non-consideration of the material evidence on records. The Court of revision when acts beyond its jurisdiction in setting aside the concurrent findings of fact, this Division obviously interfere in the judgment of the High Court Division to secure the ends of justice. [73 DLR (AD) 360] Non Reading of Evidence The High Court Division while reversed the judgments did not even discuss the case on the basis of evidence on record nor opined that the plaintiffs of the suit for specific performance of contract was able to satisfy that the execution of bainapatra and deed were proved, consideration was passed and transaction was found genuine, even if, reversed the concurrent findings of fact which calls for interference by this Division. [73 DLR (AD) 361] Specific Relief Act (1 of 1877) Section 22 In a suit for specific performance of contract where the agreement for sale is not reduced to writing, the burden is heavily upon the plaintiff to prove by oral evidence that there was such an agreement; that consideration money was paid and any unpaid portion of the consideration was offered; and that in spite of the offer of the remainder of the consideration amount and request to execute and register the deed of sale, the defendant refused. [73 DLR (AD) 376] Misreading and non-consideration That appellate Court as the final Court of fact on consideration of the material evidence on record allowed the appeal and decreed the suit. The High Court Division can interfere only if the judgement of the appellate Court is based on misreading and non-consideration of the material evidence on record but the High Court Division nowhere in its judgement held that the judgement of the appellate Court is misreading and non consideration of material evidence on record and as such, the High Court Division erred in law in making the Rule absolute. The Appellate Division observed that the High Court Division reversed the judgment and decree of the appellate Court upon quoting part of the deposition of P.W.5 and finding that P.W.5 admitted that the defendant and the plaintiffs have been in joint possession of the suit land. Upon scrutiny of the deposition of P.W.5, we find that the reference of a fish gher in the joint possession of the plaintiffs and defendant Shahnaz Siraj relates to land which is adjacent to the suit land. Therefore, the finding of the High Court Division that the plaintiffs were not in exclusive possession of the suit land is clearly misreading of the evidence. Moreover, it is not the defendants' case, as pleaded in their written statement that the suit land was a fish gher. The defendants stated in their written statement that they farmed the land. They did not say it was fish gher. We find from the evidence of P.W.2 that the suit land was homestead. The High Court Division clearly did not assess all the evidence on record and decided the case upon misreading evidence. There are by now many decisions of the Supreme Court regarding sections 91 and 92 of the Evidence Act; notable amongst them is the case of Feroza Majid and another Vs. Jiban Bima Corporation, 39 DLR (AD)78. In that case it was held that "Section 92 of the Evidence Act, which is in fact the continuation of section 91, prohibits the consideration of any oral or extraneous evidence to contradict the terms of an instrument when it is proved under section 91, subject, of course, to certain exceptions." In the facts of the instant case, the exception in proviso (5) to section 92 is attracted. This provides that "Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract." [(2022) 25 ALR (AD) 38] Constitution of Bangladesh, 1972 Article 102 Citizens' right to privacy in correspondence and other means of communication is guaranteed under article 43 of the Constitution which cannot be easily violated at the instance of any interested quarter.[73 DLR (2021) 514] Additional Evidence 15 BLC 165: Shamsuzzoha (Md) & another Vs. Khandaker Saidur Rahman & others: Section 107, Order 41 Rule 27 of the Code of Criminal Procedure read with Section 101 of the Evidence Act, 1872 and read with Section 31 of the Contract act, 1872: When no fact of delivery of possession of the suit property or the actual position of the possession thereof was stated in the plaint then how such fact can be noticed or taken into consideration in deciding the merit of the appeal and the documents to that effect can be permitted to be adduced as additional evidence. (Para-8, Mr. Justice Md. Abdul Wahhab Miah). Additional Evidence by recalling PW in appeal 21 BLC 55: Standard Insurance Ltd Vs. Maq Enterprise Ltd.: Order 41 Rule 27 of the Code of Civil Procedure: When the judgment and decree was passed as admitted position of the surveyors report we do not find any reason for additional evidence to enable the Court to dispose of the appeal. (Para-67, Mr. Justice Md. Nuruzzaman). Ref: 27 DLR(AD)133, 44 DLR(AD)162, 15 MLR(AD)478=63 DLR(AD)5, 27 DLR(AD)129. 17 BLT 571: Moulavi Abdul Khair Mollah Vs. Golafernessa & others: Order 41 Rule 27 and Order 18 Rule 17 of the Code of Civil Procedure: There is no material to show that the plaintiffs had ever approached to the trial Court for admitting the plaint of pre-emption case in evidence and the same was refused by the trial Court. So, in view of the provisions laid down in Order 41 Rule 27 of the Code of Civil Procedure, that document cannot be admitted in evidence by re-calling PW.1. (Para- 15, Mr. Justice Syed Md. Ziaul Karim). Ref: 1 MLR(AD)233, AIR 1928(PC)208, AIR 1948(PC)100, AIR 1996(SC)2358, 55 DLR 228. Application for additional evidence in Civil Revision 20 BLT 407: Most. Rafida Bewa & others Vs. Umaruddin being dead his legal heirs 1(a) Md. Abdul Gani & others: Order 41 Rule 27 of the Code of Civil Procedure: The provisions of Order 41 Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up the omissions in the revisional Court and as such the application for additional evidence is not necessary at this point of time to pronounce judgment. (Para-5, Mr. Justice Borhanuddin). Ref: 22 DLR 359 & 451, 26 DLR 45, 32 DLR(AD)170, 42 DLR 434, 49 DLR(AD)151, 51 DLR(AD)81, 54 DLR(AD)7, 10 BLT(AD)173, 1 MLR(AD)210, 2 MLR(AD)363, 4 MLR 273. Admitted Evidence Requirement of law After filing a document it is necessary to prove the same in accordance with law. 13 MLR 01: Tajul Islam & others Vs. Chini Miah & others: Sections 67 and 68 of the Evidence Act, 1872: Unless a document is proved in accordance with law such document cannot be admitted in evidence and mere filing of the document is not sufficient to satisfy the requirement of law. (Para-29, Mr. Justice A.K. Badrul Huq). Ref: 2 All ER 165, 179, 6 MLR(AD)46, 17 Indian Appeal 122, AIR 1918(PC)92, AIR 1963(SC)302, 29 DLR(SC)268, 30 DLR(SC)81, 37 DLR(AD)205, 41 DLR(AD)3, 42 DLR(AD)289, 47 DLR(AD)45, 15 BLD(AD)237, 16 BLD(AD)280, 319 US 533, 308 US 267, 331 US 284. 60 DLR 296: Sultana Jakia Vs. Asadullah: Order 41 Rule 27 of the Code of Civil Procedure read with Section 67 of the Evidence Act, 1872: It appears that the appellant simply filed a photocopy of the so-called Talaknama and some registered postal receipts without making any obligation for acceptance of the same into evidence at the Appellate stage as required under Order XLI Rule 27 of the Code of Civil Procedure and without proving the same by examining any witness competent to prove the documents. Unless a document is proved in accordance with law such document cannot be admitted into evidence forming the basis so far decree which precisely (যথাযথভাবে) has happened in the instant case. (Para-13, Mr. Justice Afzal Hossain Ahmed). Ref: 6 MLR(AD)46, 9 DLR(PC)682. Presumption unfavourable from non- examination of evidence or document. It is hardly necessary to stress the great importance which attached to non-production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non-production is established. It is true that the prosecutor is not bound to produce before the Court a witness who is expected to give true evidence, but he cannot escape the duty of causing such a witness, if his evidence be of importance, to be present at the trial in case the opposite party should wish to examine him. Khairdi Khan Vs. Crown (1953) 5 DLR (FC) 185 (204 left. h. col. bottom). Prosecution is not required to place in the witness box witnesses on whom the prosecution does not rely as witness of truth and as the witnesses in this case are related to the accused, failure of the Crown to examine them as witnesses did no in any failure of justice. A Barik Vs. Crow 2 DLR 120. When persons specifically mentioned in the FIR as also those who were closer neighbours than the witnesses examined were not examined, the Sessions Judge correctly explained to the jury that under the law they were entitled to draw a presumption that the evidence which a party intentionally with- held would, if produced, go against the party and whether they would draw that presumption or not in the particular case before them depended entirely on them. Hazrat Ali Vs. Crown (1949) 1 DLR 142. Failure to examine disinterested witnesses makes the prosecution case shaky. State Vs. Basirullah (1964) 16 DLR 189. In a case where the parties are closely related it is not unlikely that some of the common relations will either try to bring about a settlement or refuse to depose on one side or the other. In these circum- stances the mere fact that they were not examined does not affect the prosecution or entitle the defence to ask for any adverse inference. Ishaque Vs. The State, (1970) 22 DLR 431 Burden of proof as regards adverse inference-On the defence. Before an adverse inference can be drawn for the non-examination of a witness, the onus is on the accused to show that the witness was a material witness. The prosecution is not bound to produce each and every witness. State Vs. Badsha Khan (1958) 10 DLR 580. Prosecution case will not fail merely because of the non-examination of a material witness. The mere fact that the prosecution has failed to examine a material witness will not mean that the entire prosecution case will fail on account of such non-examination. In a case like this, all that a court of law is entitled to do is to "take into consideration the absence of the witness whose testimony would be expected and judge the rest of the evidence as a whole and arrive at a conclusion State Vs. Badsha Khan (1958) 10 DLR 580. Witness: Non-examination of witness who is considered important-Presumption. Non-examination of independent witnesses, particularly some of the neighbours, raises a presumption against the prosecution to the effect that had they been examined, they would not have supported the prosecution case. Alkas Mia Vs. State. (1973) 25 DLR 398. Important witness withheld by the prosecution. Presumption is, if he had been produced in Court, he would not have supported the prosecution case. S.M.Farooque Vs. The State (1976) 28 DLR 192. None of the brothers and sons of the deceased was examined. Not a single neutral neighbouring people was examined. Due to their non-examination presumption would be had they been examined they would not have supported the prosecution story. Non-production of the wife of the deceased, an alleged injured witness, raises serious doubt as to the truth of the prosecution case. Abul Kalam & Ors. Vs. The State 14 BLT (HCD)214 Adverse presumption Unless it is shown that the witnesses named in the charge sheet were material witnesses in the case, no adverse inference against the prosecution should be drawn under section 114(g) of the Evidence Act for non-examination of all those witnesses. Md. Reazuddin Sardar alias Md. Reazuddin and others Vs. The State, 14BLD (AD)178 Non-examination of important witnesses, particularly some of the neighbours, without reasonable explanation raises a presumption against the prosecution to the effect that had they been examined, they would not support the prosecution case. Benefit of doubt—Even if there may be elements of truth in the prosecution case against the accused, that by itself is not sufficient for conviction. Between “may be true” and “must be true” there is inevitably a long distance to travel and whole of the distance must be covered by the prosecution by legal and reliable evidence. Dula Mm alias Nurul Islam and others The State, 14BLD(HCD)477 Non-examination of material witness and the adverse presumption against the genuineness of the prosecution case Convict-petitioner was convicted for the offence under section 19(3) of the Narcotics Control Act, 1990 and conviction and sentence were also affirmed by the Sessions judge in Appeal. The learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any evidence on record showing that the land wherefrom the ganja plants were recovered actually belongs to the convict-petitioner. Shasher Ali Vs. The State 12 MLR (2007) (HC) 38. Adverse presumption for non-examination of material witness Onus of proving the charge against the accused beyond all reasonable doubt entirely lies upon the prosecution. Non-examination of material witness without satisfactory explanation raises adverse presumption against the prosecution case resulting in the acquittal of the convict-appellant on benefit of doubt. Linckon Dewan @ Dewan Nurul Huda Vs. The State 11 MLR (2006) (HC) 432. Before the trial court from the side of the plaintiff 2 witnesses have been examined. P.W. I is the Plaintiff himself and P.W. 2 is one Chand Mia who is an attesting witness of the questioned document. The scribe has not been examined and no explanation has been given from the side of the plaintiff for his non- examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non- examination of the scribe led to an adverse presumption against the plaintiff to the fact that had he been examination. The scribe ought to have been examined to prove that when the document was written and executed the last portion indicating the mortgage was there in the kabala and that has not been subsequently inserted as alleged by the defence. This non-examination against the plaintiff to the fact that had he been examined he would not have supported the plaintiff version of the case of mortgage. Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9BLT (AD)-77 We upon considering the materials on record and considering that none of tile witness including the husband Tuli and Moina was examined and due to their non-examination presumption would be that had they been examine they would not have supported the prosecution stow raises a serious doubt as to the truth of the prosecution case. Khan Yeakub Ali Vs. The State & Ors 16 BLT (AD)255 Non-examination of witnesses For non-examination of witnesses mentioned in the charge-sheet, the Court can be called upon to draw an adverse inference against the prosecution only when it can be shown that they were material witnesses in the case. Evidence Act, 1872, Ss. 114(g) Md. ReazuddinSardar alias Md Rea- zuddin and others Vs. The State, 14BLD (AD)176 If there is possibility of presence of other witnesses, it is the prosecution to explain why other witnesses have been withheld. If no explanation is given and if the witness is not wholly believable and if it is found that there is long standing animosity between the parties, the court will be left with no option other than to discard the evidence of the said witness. The Appellate Division held that conviction in a murder case can be based even on testimony of a single witness if the same is found acceptable after subjecting his testimony to a critical and objective test in the light of the principles laid down by the superior courts. A corroboration of other witnesses depends upon the facts and circumstances of each case. If there is possibility of presence of other witnesses, it is the prosecution to explain why other witnesses have been withheld. If no explanation is given and if the witness is not wholly believable and if it is found that there is long standing animosity between the parties, the court will be left with no option other than to discard the evidence of the said witness. These are the established jurisprudence and we are not inclined to depart from the views taken by the superior courts in this regard. Kazem Uddin alias Kazi Vs. The State (Criminal) 15 ALR (AD) 54-59 যদি অন্যান্য সাক্ষ্য উপস্থিত থাকার সম্ভাবনা থাকে, তাহলে অভিযোগকারীপক্ষকে ব্যাখ্যা করতে হবে কেন অন্যান্য সাক্ষ্যকে প্রত্যাহার করা হয়েছে। যদি কোন ব্যাখ্যা না দেওয়া হয় এবং যদি সাক্ষ্য সম্পূর্ণভাবে বিশ্বাসযোগ্য না হয় এবং যদি দেখা যায় যে পক্ষগুলির মধ্যে দীর্ঘস্থায়ী শত্রুতা রয়েছে, তাহলে আদালতের কাছে উক্ত সাক্ষ্যের প্রমাণ বাতিল করা ছাড়া কোন বিকল্প থাকবে না। আপিল বিভাগ রায় দিয়েছেন যে একটি হত্যা মামলায় দোষী সাব্যস্তকরণ এমনকি একটি মাত্র সাক্ষীর সাক্ষ্যের উপরও ভিত্তি করে হতে পারে যদি তার সাক্ষ্যকে উচ্চ আদালত দ্বারা নির্ধারিত নীতিমালার আলোকে একটি সমালোচনামূলক এবং উদ্দেশ্যমূলক পরীক্ষার পরে গ্রহণযোগ্য পাওয়া যায়। অন্যান্য সাক্ষীর সমর্থন প্রতিটি মামলার ঘটনা এবং পরিস্থিতির উপর নির্ভর করে। যদি অন্যান্য সাক্ষ্য উপস্থিত থাকার সম্ভাবনা থাকে, তাহলে অভিযোগপক্ষকে ব্যাখ্যা করতে হবে কেন অন্যান্য সাক্ষ্যকে প্রত্যাহার করা হয়েছে। যদি কোন ব্যাখ্যা না দেওয়া হয় এবং যদি সাক্ষ্য সম্পূর্ণভাবে বিশ্বাসযোগ্য না হয় এবং যদি দেখা যায় যে পক্ষগুলির মধ্যে দীর্ঘস্থায়ী শত্রুতা রয়েছে, তাহলে আদালতের কাছে উক্ত সাক্ষ্যের প্রমাণ বাতিল করা ছাড়া কোন বিকল্প থাকবে না। এগুলি প্রতিষ্ঠিত আইনবিজ্ঞান এবং আমরা এই বিষয়ে উচ্চ আদালতের গৃহীত মতামত থেকে সরে আসতে ইচ্ছুক নই। কাজেম উদ্দিন উপাধ্যায় কাজি বনাম দ্য স্টেট (ক্রিমিনাল) 15 ALR (AD) 54-59। With holding the vital witnesses without any satisfactory explanation an adverse presumption under Section 114(g) of the Act must be drawn against the prosecution. Abul Hashem Vs. State (Criminal), 18 BLC (2013)-HCD-16. Non examination of witnesses-Withholding of prosecution witnesses deems that if they would have been examined they would not have supported the prosecution case. Ishaque Ali (Md) Vs. State (Criminal), 18 BLC (2013)-HCD-453. Consequences of withholding of prosecution witnesses: The withholding of the Chairman Towhidul Islam and the other alleged eye witnesses to the occurrence, namely, Moslem, Lutfor, Alamgir, Jalal and Azizar have affected the prosecution case on merit. In this connection, the defence has rightly invoked Section 114-Illustration (g) of the Evidence Act, 1872. Abdul Mazid and ors Vs. State, 1 Counsel (2013)-HCD-149. Non-examination of important witnesses creates presumption under section 114(g) of the Act and raises doubt about the prosecution case and benefit of doubt would always go in favour of the accused. Hasanul Islam Hanif Vs. State (Criminal), 18 BLC (2013)-HCD-237. S. 114(g)-Though prosecution did not examine the of in this case but for not drawing the attention of PW I and the other witnesses in respect of any particular statement given to the of the defence has not been prejudiced in any way. State Vs. Matiur Rahman (Criminal), 18 BLC (2013)-HCD-89. No independent witness was examined by the Investigating Officer nor cited as witness in this case, thus creating doubt. The Appellate Division finds that it is true that a case where section 106 of the Evidence Act is applicable, i.e. when the victim was last seen with the alleged accused, the accused has a duty to explain how the victim died. However, in the instant case there is no independent corroborative witness with regard to the deceased being in the company of the accused in spite of the fact that the houses of the victim's father and that of her husband are near to each other and they are surrounded by many other houses of persons who would be independent witnesses, but no independent witness was cited in the charge sheet or examined by the prosecution in support of the prosecution case. Moreover, the allegation of the victim having been killed by her husband on account of non-payment of dowry is belied by the fact that the victim was apparently killed after having been gang raped as indicted in the post mortem report and supported by the inquest report. The defence suggestion that the victim went out of her father's house to watch a show at the local school or that she may have been taken out of her father's house and raped and killed thereafter cannot be overlooked in view of the finding of the post mortem examination that the victim was gang raped. The fact of the victim having been gang raped is not commensurate with the prosecution claim that the accused, being the husband, killed his wife for dowry. The Appellate Division also note from the cross examination of P.W. 3 Md. Mofazzel Hossain, who is a brother of the informant that he stated ""আমার মেয়েকে অজ্ঞাত লোকে ধর্ষণ করে মারিয়াছে আমি বলতে পারিব না।" (emphasis added) which is clearly prevarication, particularly in view of the fact that the post mortem examination report clearly indicates gang rape prior to murder. Accordingly. the criminal petition for leave to appeal is dismissed. The State VS Md. Akinur Rahman, [1 LM (AD) 537] The principle laid down in the said case along with the provision of 114(g) of the Evidence Act is applicable in the present case where the prosecution suffers for non-examination of dis-interested and independent witnesses as though the occurrence is alleged to have taken place in the broad day light on the busy pathway. Alamgir Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590. In this case admittedly there are dwelling houses on all sides of the place of occurrence but no owner of these dwelling houses was examined in this case by the prosecution without any explanation. Non-examination of these natural, probable and disinterested witnesses calls for an adverse presumption against the prosecution under section 114(g) of the Evidence Act. Tomezuddin Biswas alias Kalu and another Vs The State, 17BLD(HCD)174 Ref :40DLR348; 1 1BLD(1991)23 1—Cited. Non-examination of independent witness- Non-examination of independent witnesses, especially some of the close neighbours, calls for an adverse presumption against the prosecution under section 114(g) of the Evidence Act to the effect that had they been examined, they would not support the prosecution case-Evidence Act, 1872, S. 114(g). Kawsarun Nessa and another Vs. The State, 15 BLD(HCD) 21 Ref: 25 DLR 398; AIR 1936 (AJII) 833; 41DLR(HCD) 349; 31 DLR (AD) 75—Cited নিরপেক্ষ সাক্ষীকে পরীক্ষা না করা-নিরপেক্ষ সাক্ষীকে পরীক্ষা না করা, বিশেষ করে কিছু প্রতিবেশীদের পরীক্ষা না করা বাদীপক্ষের বিরুদ্ধে এই অনুমানের জন্ম দেয় যে যদি তাদেরকে পরীক্ষা করা হতো তাহলে তারা বাদীপক্ষের মামলাকে সমর্থন করতো না। [নেপোলিয়ন খন্দকার ওরফে লেপু এবং অন্য একজন বনাম রাষ্ট্র ৫৪ ডিএলআর ৩৮৬] Prosecution must prove the charge against an accused beyond any shadow of reasonable doubt– In a criminal case the prosecution must prove the charge brought against an accused beyond any shadow of reasonable doubt. Criminal cases are not like civil cases. In criminal case the accused may only take the plea of not guilty and the burden is entirely upon the prosecution to prove its case. Cross-examination is not also necessary on the entire deposition of a witness as it may damage the defence case. Non-cross-examination on a certain fact would not make the deposition of a witness on that point admitted facts. (Minority View), (Per Madam Justice Zinnat Ara). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, (Criminal), 2020 [9 LM (AD) 593] Approver who had given a detailed narrative before the committing Court, when examined in the Session Court, denied all the facts to which he had deposed before the committing Magistrate and said that he knew nothing about the crime. Held: Apart from the suspicion which always attaches to the evidence of an accomplice, it would plainly be unsafe to rely implicitly on the evidence of a man who had deposed on oath to two different stories, Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39. Corroboration of approver's evidence-Rule to follow. Majority-The rule as regards corroboration of the approver's evidence does not require the prosecution to prove by independent evidence that the pris- oner committed the crime but only to produce such reliable and independent evidence as shows or tends to show that part of the approver's testimony where- in he states that the prisoner was one of the persons who took part in the commission of the crime is true hay Vs Crown (1955) 7 DLR (FC) 37 (43 rt. k.col.) Standing by itself corroborative evidence may not be criminating at all and may be susceptible of an entirely innocent explanation but considered with the story of the approver it may produce on the mind of the Court or the jury a profound conviction that the accused must have acted in the manner alleged by the approver. Ishaq Vs. Crown (1955) 7 DLR (FC) 37 A piece of cloth worn by the murdered man at the time of his assault was found in the place pointed out by the approver who deposed that it was thrown over there by the accused and beyond this statement of the approver there was nothing to connect the accused with the cloth. Held: The fact that the piece of cloth was re- covered from the place pointed out by the approver was of a value as supporting the credibility of the approver's story; but the statement made by the ap- prover that it was the accused who threw the cloth to the place where it was found is of no more, or no less, value than his statement that the accused took an active part in the murder. (1950) 2 DLR (PC) 39. Evidence as to affairs of State-Unpublished official record relating to affairs of State are privileged and no one is permitted to give evidence relating to such save with permission of the head of department concerned-Decision regarding preliminary question whether particular document belongs to class of unpublished record relating to affairs of State or not must rest with court. Syed Abul A'ala Moududi Vs. The State Bank of Pakistan, (1970) 22 DLR (WP) 59. Understanding of document-The party taking advantage under the document must show to the Court that the deed was explained to and understood by the executant and she adopted it with full knowledge and comprehension. The fact whether independent advice was available to a pardanashin lady at the time when she entered into a transaction can be taken into consideration in order to determine whether she thoroughly comprehend and deliberately of her own free will, carried out the transaction. If it is found that the document was conceived and executed by her free will, it shall be upheld. PLD 1985 Karachi 431. However, if subsequently the executant makes declaration that he nor she had not understood what he or she was doing, that by itself is not conclusive.must be a question whether, having regard to the proved personality of the executant, the nature of the transaction, the circumstances under which it was executed and the whole history of the parties, it was reasonably proved that the document was the free and intelligent act of the executant or not. If the answer was in the affirmative, the person relying on the document had discharged the onus.resting upon him. PLD 1985 Karachi 431 (DB). Where the ladies who executed a document were illiterate. They Knew only how to sign but that too in Gujrati. The burden lay heavily on the appellant-Bank to prove that not only the ladies executed the documents in question but also fully understood their contents. PLD 1985 Karachi 431. Distinction between "disproved" and "not proved". The Evidence Act has drawn a clear distinction between the words "disproved" and "not proved". A fact is said to be disproved when after considering matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought under a circumstances of the particular case, to act upon the supposition that it does not exist. On the other hand a fact is said to be not proved when it is neither proved nor it is disproved. Shri Kishan v. Banwari Lal, AIR 1974 Raj 96. Admission-Stray sentences in cross examination. Stray sentences of cross-examination do not constitute admission. Parameshwari Bai v. Muthojirao Scindia, AIR 1981 Kant 40 DB. Admissions in pleading and judicial admissions.-Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleading or judicial admissions, admissible under Section 8 of the Evidence Act, made by the parties or their agents at or before hearing of the case stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constituted a waiver of proof. They by themselves can be made foundation of the rights of the parties. On the other hand, evidentiary admissions which are receiveable at the trial as evidence are by themselves not conclusive. They can be shown to be wrong. Nagindas Ramdas v. Calpatram Inchharam alias Brijram, AIR 1974 SC 242. Admission in pleadings. The admission in pleading stands on a higher footing. Rama Nand Rai v. Dy. Dir. of Consolidation, 1977 Revenue Decisions 419: AIR 1978 NOC 100 (All). Admission-Evidentiary value. Admission, unless explained, furnishes the best evidence. Ramji Dayawala & Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2084. Admission-Meaning of - The word "admission" has a technical meaning in law. It has been defined in Section 17 of the Evidence Act as a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact. The compromise does not show that the appellants admitted that their water was not used to flow towards Plot No. 403 and well of the respondents. On the other hand the compromise shows that in future the appellants could not flow water towards Plot No. 403. Therefore, precisely speaking there is no admission of the appellants to show that there was no flow of the water of the plaintiff's house towards Plot No. 403 and the will of the respondent. Jag Narain v. Ram Dularay, AIR 1979 All 71. Adnission in documents. Admission of the documents means admission of facts contained in the document. No provision of law makes the admissions admissible against a person other than the person making them, unless such person can be said to be bound by the admission. Sita Ram v. Satanu Prasad, AIR 1966 SC 1697: 1966 Mah LJ 881: (1966) 1 SCWR 974: 68 Bom LR 489. To make an admission a confession. To make an admission a confession, it must amount to a clear acknowledgement of guilt. A confession must relate to the particular crime with which the accused is charged. Any admission which is not connected with any of the ingredients of offence charged would not amount to a confession. Gadhapurni v. State, 1980 Cri LJ 188 DB. Admission and estoppel. Admission is a piece of evidence but estoppel creates a title. The Supreme Court further observed-Ex 2 was relied on as an admission and not as an estoppel. We agree with the High Court that Ex 2 affords satisfactory evidence to prove the first defendant's title to the suit properties. It further proves the alienation effected by the first defendant in favour of the plaintiffs. Dattatraya v. Rang Nath, AIR 1971 SC 2548: 1970 SCD 366: (1971) 1 Civ App J 328 (SC). Admission in favour of person making. Surpeme Court observed- Reliance was placed by the District Judge on the counterfoil where the plaintiff- landlord tried to make out a case of monthly tenancy but the entry in counter- foil being an admission in his own favour was not admissible against the appellant. Idandas v. Anant Ramchandra, AIR 1982 SC 127. No distinction between admission in pleading and other admission of the party. Section 17 of the Indian Evidence Act, 1972, makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law no admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits this admission cannot be regarded as conclusive and it is open to the party to show that it is not true. Basant Singh v. Janki Singh, AIR 1967 SC 341. Admission of execution. Where a party only admits the signature and also explains the circumstances which led to his signing the document without knowing its contents it cannot be said that the party has admitted its execution. Execution implies conscious execution and knowledge of its contents. There is a catena of authorities for the proposition that where a party merely admits the thumb impression or his signature on a document but does not admit that he executed the document in the sense that he subscribed to the contents thereof, it can be said that the party has admitted the execution. Brij Mohan v. Amarnath, AIR 1980 J & K 54 DB. Admissions not conclusive proof-Adverse inference can be drawn. The law by no means regards admissions as conclusive proof of the matters admitted. This is because to a Court of law admissions are but statements which do not more than suggest an inference as to some fact or facts in issue. It is, there- fore, important that the Court should examine any given admission inside out to see if it suggest any clear inference on the fact in issue against the party making it. For a Court to draw an adverse inference against a party on the basis of what he is stated to have admitted, the admission must be unequivocal. It must also be comprehensive. M. M. Chetty v. C. Coomarswamy Naidu & Sons, AIR 1980 Mad 212. Truncated admissions. Where a party's admission falls short of the totality of the requisite evidence needed for legal proof of fact in issue such a an admission would be only a truncated admission. It follows that in such a case it cannot support a valid judicial determination, unless it be that the Court is in a position to find other evidence before it to make up for the deficiencies in the admission. M. M. Chetty v. C. Coomarswamy Naidu & Sons, AIR 1980 Mad 212. Admission-Propio vigore substantive evidence. It is well-settled that a party's admission as defined in Sections 17 to 20 fulfilling the requirements of Section 21, Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be estalished. Thiru John v. Returning Officer, AIR 1977 SC 1724: (1977) 3 SCC:40. Deliberate ante litem admissions. In Thiru John's case the Supreme Court observed that in the instant case, here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John. These admissions were made ante litem motam during the decade preceding the election in question. These admissions were entitled to great weight. They had shifted the burden on the appellant (Shri John) to show that they were incorrect. Thiru John v. Returning Officer, AIR 1977 SC 1724: (1977) 2 SCWR 295. Party's amission on law point.-Party's admission on law point is held not binding on it. Dr. Het Ram Kalia v. Himanchal Pradesh University, AIR 1977 NOC (HP) 246: ILR 1977 HP 17. Self-serving statement in previous proceedings. Self-serving statement in previous proceedings cannot be used as substantive evidence against that party in subsequent proceedings. Krishnawati v. Hansraj, AIR 1974 SC 280: (1974) 1 SCC 289. Proving of Admission needs no confrontation. The object of Section 145 of the Evidence Act is to give the witness a chance of explaining the dis- crepancy or inconsistency and to clear up the broad point of ambiguity or dispute but this procedure is not followed in regard to the admission in view of Sections 17 and 21 of the Evidence Act. Admissions are substantive evidence by themselves though they are not conclusive proof of matters admitted. In Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405, has been held that the admissions duly proved are admissible in evidence irrespective of whether the party making them appeared in the witness-box or not and whether such party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is quite different from the purpose of proving the admission. Arjun Mahato v. Monda Mahatain, AIR 1971 Pat 215 DB. What weight to be attached to a admission is different from its admis- sibility. The Supreme Court observed that what weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. Bharat Singh v. Bhagirathi, AIR 1966 SC 405: 1966 SCD 153: (1966) 1 SCWR 222: (1966) 2 SCJ 53. Admission though not conclusive yet decisive. The Division Bench relying on Supreme Court case reported in Narayan Bhagwant Rao v. Gopal Vinayak, reported in AIR 1960 SC 100, observed that undoubtedly, the admission is the best evidence that an opposite party can rely upon and though it is not conclusive, yet it would be decisive of the matter unless it were successfully withdrawn or proved to be erroneous. B. S. B. Religious Trust v. H. Das, AIR 1971 Pat 363 DB. Admission by a person in joint character. When several persons are jointly interested in the subject-matter of the suit, an admission of any one of them is receivable against him and fellows, whether they be all jointly suing or be sued, provided the admission related to the subject-matter in dispute and is made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered. Vide, Tikoo Ram v. Jhabar, ILR (1960) 10 Raj 6: AIR 1961 Raj 81. Bhura v. Bahadur Singh, AIR 1976 Raj 249: 1976 Raj LW 212: 1976 Ren CR 546: 1976 WLN 44. Party's Admission-Proved-Need not to be confronted. The Supreme Court observed- It has been held by this Court in Bharat Singh v. Bhagirathi, (1966) (19 1 SCR 606: AIR 1966 SC 405, that an admission is substantive evidence of the fact admitted and that admissions duly proved are admissible evidence irres- pective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The view taken in Bhargava v. Bhawani Shankar, AIR 1957 All 1, FB, has been noticed. Union of India v. Moksh Builders & Financiers, AIR 1977 SC 409: (1977) 1 SCC 60: 1977 SCC (Tax) 132: (1977) 1 SCWR 358: (1977) 9 Lawyer 156. Admission in previous proceedings. In order to bind a party by his admission in previous proceedings, the admission must be clear, precise and unambiguous. Ram Prasad v. Kalyani, AIR 1973 Raj 208: 1972 Raj LW 522. Cases relied on- Nagubai Ammal v. Shama Rao, AIR 1956 SC 593: 1956 SCR 451: C. Koteshwara Rao v. C. Subba Rao, AIR 1971 SC 1542: 1970 SCD 380. Admission by party-Value of. It is no doubt true that admission are not conclusive but what a party himself admits to be the true state of affairs may reasonably be presumed to be so unless the admission is satisfactorily explained or successfully withdrawn. S. T. Thimmappa v S.L. Prasad, AIR 1978 Kant 25 (DB). Admission-Best available support for adversary. An admission in pleading is certainly available to be used. Their Lordships of the Supreme Court observed that the admission contained in a pleading in a former litigation, it is indeed an admission in the true sense is certainly to be used for all purposes and it cannot be kept out by saying that it was an admission in a former litigation and was meant for that proceeding alone and cannot be taken to be an admission binding in any other suit or for all times to come. Such a distinction is not open in law to be made. If it is an admission. it is so and is certainly an admission for all times to come. Unless explained away properly, an admission is the best available support for the adversary, vide N. B. Gosavi v. G. V. Gosavi, AIR 1960 SC 100. Biswanath Rana v. Laxman, AIR 1971 Ori 267. Admission of signature is not the admission of the contents of documents.- The execution of a document implies intelligent and conscious appreciation of the contents thereof and the facts connected therewith; and where the defendants admitted only that he had put his signature in a blank piece of paper, which, he alleged, had possibly been utilised for fabricating Ex A. 1, it cannot be regarded as his having admitted the execution of the document. Ethirajulu Naidu v. K. R. C. Chettiar, AIR 1975 Mad 333 (DB). Admission-Several persons interested in the subject-matter-Admission by one of them-Relevancy. The value of admission must depend upon the circumstances in which they are made and possible motives for incorrect state- ment by interested persons should not be ignored. Where several persons are jointly interested in the subject-matter of the suit the general rule is that the admission of any one of these persons is receivable against himself and follows, whether they be all jointly suing or sued or whether an action be brought in favour of or against one or more of them separately provided the admission relate to the subject-matter in dispute and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered. Ambika Devi v. Bal Mukund Pandey, AIR 1981 Pat 111 (DB). Admission by father when not binding upon son. Section 18 of the Evi- dence Act no doubt provides that statements made by persons from whom the parties to the suit have derived interest in the subject-matter of the suit, are admissible if the are made during the circumstances of the interest of the per- sons making the statements. Held, but the respondents (sons) cannot be bound by the admission made by their father for they are not claiming the suit property through him but are claiming the same as coparceners by virtue of their birth in the joint family to which the suit property belonged. Avatar Singh v. Th. Atma Singh, AIR 1982 J & K 141 (DB): 1982 Srinagar LJ 247: 1982 Kash LJ 263. Admission-Binding-Unless explained. An admission is not conclusive but unless it is explained suitably by a party who has made such an admission or who is bound by such an admission, it will have to be used against him. Veerbasavaradhya v. Devotees of Lingadaqudi Mutt, AIR 1973 Mys 280; Radha Nath Singh v. Ram Prasad Agrawalla, AIR 1978 NOC 228 (Pat). Value of admission. It is will-settled that the effect of an alleged admis- sion depends upon the circumstances in which it was made. P. Ex. S. Co-op. T. S. F. v. State of Haryana, AIR 1974 SC 1121: 1974 MPLJ 629. Privity of title or of obligation. It is not by virtue of a person's relation- ship to the litigation that the admission of one can be used against the other, It must be as used because of some privity of title or obligation. In order to utilise the statement of defendents 6 to 8 against defendents 1 to 3, the plaintiff has to establish that they were all persons jointly interest in the dis- puted property, and the admission of defendents 6 to 8 would affect their own if they say that the plaintiff had been adopted away and did not continue to be the son of defendant No. 3. The general rule is that an admission can only be taken in evidence against the party making it and not against any other party. The statment in defence by one defendant cannot be read in evi- dence either for or against his co-defendant unless they have joint interest. Jagbandhu v. Bhagu, AIR 1974 Ori 120 (DB): (1973) 1 Cut WR 809. Admission made by vendor after sale not binding on vendee. The admission of vendor after sale of the property in favour of the third person relating to the sold property is not binding upon the vendee. Radhey Shyam v. Smt. Prem Kanta, 1982 WLN 81 (Raj): AIR 1982 NOC 244 (Raj). Admission in correction of paper case. The correction of papers case is mainly decided on the basis of possession. The order passed in correction of papers case is certainly not binding in regular suit. But any admission made in correction of papers case is admissible on the question of possession. Sahdeo v. Board of Revenue, AIR 1980 All 408. Admission in Mutation cases. Where in a particular case an admission or consent is in relation to possession at the time of the compromise, that admission or consent is admissible even in the title proceeding, when a Court is called upon to decide or adjudicate the title of the parties, it regular can take into consideration. The fact that in mutation proceedings, one party had admitted or consented in respect of their possession. Rajpati v. Dy. Director of Consolidation, 1979 All WC 302: 1979 All LJ 640; Algu v. Dy. Director of or of Cansolidation, 1979 All WC 299. Person making admission in his pleading. A person making any admis- sion in his pleading cannot take an advantage of the same. Suraj Nath v. Union of India, AIR 1975 Cal 203 (DB). Admission by counsel of accused-Binding effect. The sworn testimony of the counsel for the accused, related to something which happened in con- nection with the proceedings in Court with respect to thumb-impression of P. W. can be relied upon and is binding on the accused. Raghunath v. State of U. P., AIR 1973 SC 1100. Admission by Co-defendant. Co-defendant admitted plaintiff's claim in his written statement. He does not appear in witness-box so that the contesting defendant can get opportunity to crose-examine him on this point. Such admission, held not binding on contesting defendant. Braham Raj Singh v. Braham Raj Devi, AIR 1982 HP 57: ILR (1981) HP 272: 1931 Sim LC 361. Admission of execution-Mere putting signature on blank paper. Precedent relied on- Thakur Lal v Ram Adhar, 1968 All LJ 480. Mere admission of putting signature or thumb-impression mark on a blank sheet of paper does not amount to an admission of execution. Birbal Singh v. Harphool Khan, AIR 1976 All 23. Admission-Compromise by counsel for on behalf of his client.-Division Bench observed- The counsel for the plaintiff in his statement did aot prescribe any special oath nor any special form of the oath but merely offered the defendant-appel- lant to take oath and make statement on the two crucial points in issue in a particular Gurudwara. He was not required to swear by the Gurudwara or by Guru Granth Sahib or in any other special manner. In these circumstances it appears to us that the compromise arrived at between the counsel for the plaintiff on behalf of his client and the defendant-appellant would be covered by Section 20 of the Evidence Act and the plaintiff would be bound by the statement made by the defendant on the two crucial issues if the same is found to have been made strictly in accordance with the terms offered by him. Thakur Singh v. Inderjit Singh, AIR 1976 P & H 287 (DB): 1978 Pun LR 801: 1976 CurLJ (Civ) 409: 1976 Rev LR 567. Admission by person referred to by party to suit. From the facts of the instant case, it would be seen that Pt. Satya Narain was expressly empowered to make his own enquiries into the dispute and then to make his statement. The Court had to pass the judgment in accordance with such statement. The High Court observed: It seems to me that it is hard to describe it a case to which Section 20 of the Evidence Act can be said to be applicable. But on a true construction of the application (Paper No. 33-C) it has to be held that Sri Misra was appointed the sole arbitrator by the parties. The so-called statement (Paper No. 39-B) was really in the nature of an award. In the circumstances of the case it can be said that the Courts below have mis- directed themselves in passing the judgment and decree in favour of the plaintiff-respondent by treating the said statement (Paper No. 39-B) as one under Section 20 of the Evidence Act. Ramji Lal v. Ramsanehi Lal, AIR 1978 All 351. Admission-Earlier statement of a witness party to the proceedings.- Where the witness is a party to the proceedings, the earlier statement to which his attention is drawn, and which if admitted or otherwise proved may amount to an admission. The difference between what follows in such circumstances if the witness himself is a party to the proceedings and where he is not a party requires to be kept sharply differentiated. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of the proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to be contradict a witness does not become substantive evidence and merely serves the purpose of throw- ing doubt on the veracity of the witness. Vide, Bharat Singh v. Bhagirathi, (1966) 1 SCR 606 AIR 1966 SC 405. B. S. Vidhyapith, Bangalore v. G. Parthasarathy, AIR 1977 Kant 113: (1977) 1 Kant LJ ant LJ 87: ILR (1977) 1 Kant 275. Admission Statement of winess being agent of landlord. In the present case the petitioner tenant by alleging that Ex. R. 27 is the act of an agent of the landlord implying thereby that Ex. R. 27 is attributable to the landlord as his own statement, the petitioner has referred to and relied upon Ex. R. 27 as a piece of substantive evidence. Even assuring as the Court below assumed, that it was used in cross-examination only for the purpose of shaking. The credit of P. W. 3 it cannot be said that Ex. B. 27 was only to that purpose alone in the case. In either event, it is to be held that it was open to the petitioner to seek to prove the said document in accordance with or in a manner recognised by law. For Ex, R. 27 to be a piece of substantive evidence in the case against the landlord, the petitioner has not only to prove that Ex. R. 27 was a document in the writing of R.W. 3 but also has to establish further that R.W. 27 was an agent and authorised by the landlord and that Ex. R. 27 came into existence in the course and exercise of such authority by the said R. W. 3. B. S. Vidyapith, Bangalre v. G. Parthasarathy, ILR (1977) 1 Kant 275: AIR 1977 Kant 113: (1977) 1 Kant LJ 87. Admission in judgment. Normally a statement in judgment of a Court must be accepted to be true unless if properly challenged. Even mere cor- poration of a ground in the memorandum of an appeal had been held not to constitute a sufficient challenge to the correctness of such a statement. Nrusinghanath v. Banmali, AIR 1970 Ori 218. Admissions are substantive evidence but not conclusive. Admissions are substantive evidence by themselves in view of Sections 17 and 21 of the Evidence Act though they are not conclusive proof of the matter admitted. The Supreme Court has expressed its opinion in Bharat Singh's case, (1966) 1 SCR 606, that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in a witness- box or not or whether the party when appearing that witness was confronted with those statements in case, it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of throwing dout on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. H. S. Abbas v. Balaji, AIR 1976 Bom. 219. Distinction between admission of a party and of a witness. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of Section 21 of the Evidence Act, in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former case there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him as required by Section 145 of the Evidence Act. Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117: 1974 Pat LJR 437: 1974 SCD 134: (1974) 1 SCJ 554. Admission-Its proof-And object of Section 145. The purpose of con- tradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Sita Ram v. Ram Chandra, AIR 1977 SC 1712: (1977) 2 SCC 49: (1977) 2 SCR 671. Admission regarding nature of possession. The admission incorporated in Exhibit 54, the declaration given by the defendant, is being relied upon by the plaintiffs to show that the defendant was in permissive possession of the property. As held by the Supreme Court in Bharat Singh v. Mst. Bhagi Rathi, AIR 1966 SC 405, the admission duly are admissible in evidence. In the pre- sent case the said ahmission has been culy proved and the evidence in this behalf adduced by the plaintiff has been rightly accepted by the trial Court. Madho v. Yeshwant, AIR 1974 Bom 12: 1973 Mah LJ 771: ILR (1974) Bom 752. Admissibility of admissions. It has been held by the Supreme Court in Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405 that the admissions duly proved are admissible in evidence irrespective of whether the party making them appeared in the witness box or not and whether such party when appearing as witness was confronted with those statements in case it made contrary to those admissions. Arjun Mahto v. Monda Mahatain, AIR 1971 Pat 215 (DB). Value of Admission. Law is that an admission is a substantive piece of evidence. This was stated by the Supreme Court in the case of Bharat Singh v. Mst. Bhagirathi reported in AIR 1968 SC 405 at page 410. It has been stated in that case that an admission is substantive evidence even though the parties are not confronted with such statement, but what weight should be attached to it is a different matter. Of course, there is a dissenting note in the judgment of Sita Ram v. Ram Chandra, reported in AIR 1977 SC 1712. That case is distinguishable because in that case a certified copy of a state- ment of the witness was sought to be used as his admission. In that view of the matter it has been stated in that case that an admission cannot be admitted in evidence unless the previous statements be made first put to him and liberty is given to him to explain the same. It may be pointed out that in that case of Sita Ram, the Supreme Court decisions reported in AIR 1977 SC 409 and in AIR 1974 SC 117 were not considered. It has been clearly stated in those cases that when there is an admission it is not necessary to cofront the person concerned with his previous statement. Mahabir Saha v. Haripad Saha, AIR 1982 Cal 353 (DB). Admissiblity of self-serving admissions. A self-serving admission in evidence, unless it comes within any exceptions under Section 21 of the Evidence Act, is not admissible in evidence. Jag Bandhu v. Bhagu, AIR 1974 Ori 120: (1973) 1 Cut WR 809: ILR (1973) Cut 553. Admission binding unless explained-Precedents relied on- (1) AIR 1936 PC 264. (2) AIR 1960 SC 335. (3) AIR 1917 PC 169. (4) AIR 1960 SC 100. Admission is binding upon the person making it unless sufficiently explained. Radh Nath Singh v. Ram Prasad Agrawala, AIR 1978 NOC 228 DB (Pat). Admission regarding seeking apology in a letter-Nature of document.-The letter was written during the period when the compromise talks were going on in respect of the case pending under Section 9 of the Hindu Marriage Act, at a time when the parties agreed that no evidence would be given regarding it. That being so, the case will be covered by the second condi- tion laid down in Section 23 of the Evidence Act and as such the husband could claim privilege regarding the same. It has been ruled in a Bench decision of the Allahabad High Court in Shibcharan l'as v. Firm Gulab Chand Chhotey Lal, AIR 1936 All 15, that where negotiations were being conducted with a view to a settlement, it should be held that those negotiations were so conducted without prejudice. Surjit Kaur v. Gurucharan Singh, AIR 1973 P & H 18: 1974 Pun LR 726. Mere proof of handwriting is not proof of contents The Supreme Court observed that the mere proof of the handwriting of a document would not tantamount to proof all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the hand writing and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i. e, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Ramji Dayawala & Sons (P.) Ltd. v. Invest Imports, AIR 1981 SC 2085. Where evidence of parties is unreliable It is well-settled principle of criminal law that an accused can be convicted only when on the evidence produced the Court is in a position to come to definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on mere possibilities. Nor is it permissible for the Court to speculate as to what had really happened. If both the parties come to Court with untrue facts and conceal the real truth they have themselves to blame and they can not expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the Court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. Om Prakash v. State of U. P., 1982 All WC 89, DB. Proof of fact by preponderance probabilites to establish defence-Standards of proof stated.-The Supreme Court observed- Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issue involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to temper or has tempered with the witnesses. Proving by the test of balance of probabilities rhat the accused hos abused his liberty or that there is a reasonable apprehension that he will inter- fere with the course of justice is all that is necessary fot the prosecution to do in order to succed in an application for cancellation of bail. Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961. Contradictions in Evidence Contradictions in evidence.-(1) The evidence of both witnesses cannot be relied upon because they are making contradictory statements and their written statement is at variance with their verbal evidence particularly regarding management of the property during Protima's life time and Harmohan's share. It is also strange that no independent corroboration of their evidence was avail- able before the Court. Jyotirmoyee v. Durga Das, AIR 1976 Cal 238. (2) The Supreme Court observed that the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and having regard to the large number of contra- dictions in his evidence, contradictions not on mere matters of detail but on vital points, we do not think it would be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of the accused. N. D. Dhayagude v. State of Maharashrta, AIR 1977 SC 381: 1977 Cri LJ 238: 1977 SCC (Cri) 10: 1976 Guj Cri R 327: 1976 Cri LR (SC) 409. (3) The Supreme Court observed that where some of the prosecution witnesses have contradicted their earlier statements under Section 164, Cr.P.C. and contradictions suggest that the defence version might be true. On cross- examination by public prosecutor the witness answered that the statement made before the police was correct. If he remembered that the earlier statement was cortect then it is not possible to explain how he could make a mistake on the point of a particular fact in his examination-in-chief. Such material con- tradiction caused infirmities in the prosecution case and legitimate doubt on the truth of the prosecution story. Bhajan Singh v. State of Punjab, AIR 1977 SC 674. (4) In cases where the transanction consists of a single act of payment of money, contradictions on the main issue like payment of money, cannot be elicited. Even false witnesses never falter on the principal question, i. e., the payment of the sum and its quantum. It is, therefore, usual to attack the credibility of such witnesses by by eliciting their answers on minors details related to the alleged transaction. It is only by questioning the witnesses on the various details that seemingly solid wall of falsehood can be breached. In the present case the contradictions were not minor. On the contrary they were quite revealing when one witness said that the transanction took place in the evening while the other chance witness said that it took place in the morn- ing by no means it can be called a minor or flimsy discrepancy. V. R. Avdi v. Mariana Colaco, AIR 1976 Goa 60. (5) It is well-settled that where witnesses make two inconsistent state- ments in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and untrustworthy of credence and in the absence of special circumstance no conviction can be based on the evidence of such witnesses. Suraj Mal v. State (Delhi Admn.), AIR 1979 SC 1408. (6) The Supreme Court states that we are unable to agree with the High Court that these contradictions were "trival" and of no consequence whatever. We cannot overlook the fact that all the eye witnesses were highly interested in the prosecution and atleast two of them, namely PW 1 and PW 4 were iminically disposed towards the appellants. While such witnesses never fail to denounce the real culprits they cannot be said to be absolutely immune from the tendency of roping in some innocent persons along with the guilty. It is in this context the contradictions in the evidence assume importance. R. Kondaiah v. State of A.P., AIR 1975 SC 216: 1975 Cri LJ 262: 1975 SCC (Cri) 213: (1975) 3 SCC 752. (7) The Supreme Court observed that minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in cases of trained and educated persons, memory some times plays false and this would be much more so in case of ignorant and rustic women. Boya Ganganna v. State of A. P., AIR 1976 SC 154111976 Cri LJ 1158: 1976 UJ (SC) 122: 1976 All Cri C 27: (1976) 1 SCC 584: 1976 SCC (Cri) 102: 1976 Cri LR (SC) 3: (1976) 2 SCJ 284: (1976) An WR (HC) 15: 1976 Mad LJ (Cri) 503. (8) The Supreme Court observed- The particular right on which the incident took place was cloudy and it was drizzling. On question whether witnesses were able to identify the respondents, it is very difficult to take them as their word then their evidence suffers from various contradictions to which the High Court has referred. The witnesses were deposing to the incident nearly nine years later and it appears that they made good the lapses of memory by giving a free play to their imagination. Their evidence leaves much to be desired and is insufficient to establish the complicity of the respondents in causing the death of Ranjit and Samir Chrakraborty. Benoy lodged his complaint more than a moath and yet there are material discrepancies between what he stated in the complaint and what he said in his evidence. State of W. B. v. Shew Mangal, 1981 All Cri R 368. (9) Where in a case prosecution adduced two sets of evidence contra- dictory to each other, held, it is difficult to rely either of them to found the conviction. Harchand Singh v. State of Haryana, AIR 1974 SC 344: 1974 SCD 81: 1973 SCC (Cri) (Cri) 962: 1974 Cri LJ 366: (1974) 6 SCC 397. Oral evidence contrary to proved facts. Cross-examination is not the only method of discrediting a witnesses. If oral testimony of certain witnesses is contrary to proved facts their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable, Courts are not bound to accept their testimony merely there because was no cross-examination. Juvar Singh v. State of U. P., AIR 1981 SC 373. Omission-Probative value of. It is not possible to lay down a general rule as to what effect a particular omission from a previous statement should have on the probative value of what was so omitted by a witness. The effect will depend upon the totality of proved facts and circumstances in which the omission might have taken place. It will often will be determined by the im- portance of by the importance of what was omitted. Laxman v. State of Maharashtra, AIR 1974 SC 308: (1974) 1 SCC 309. Discrepancy in timings. Supreme Court observed that the evidence of eye witnesses cannot be rejected on the sole ground of discrepancy in the timings noted at various places. Somappa v. State of Mysore, AIR 1979 SC 1831. Discrepancy regarding the distance of the house of the accused. Where the distance of the house of the accused is not relevant to the case, the discrepancy between the two witnesses regarding the distance of the house of accused has no relevance and their testimony on this very ground cannot be discredited. State of U. P. v. Samman Dass, AIR 1972 SC 677: 1972 Cri LJ 487. Discrepancies do not necessarily demolish testimony.-Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. Narotam Singh v. State of Punjab, AIR 1978 SC 1542. Discrepancies-Witnesses examined after 17 months after incident- Natural. The occurrence took place on August 4, 1973 while Resham Singh (PW 2) and Bachan Singh (PW 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident. Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happend long before their examination. Such discre. pancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case. State of Punjab v. Wassan Singh, AIR 1981 SC 697. Discrepancy between the statement of Medical Officer and sole eye-witnesses on a point-Effect-Appreciation of testimony. The Supreme Court observed that the Doctor who conducted the autopsy did not note or find any imprints of a rope on the wrists of the dead body, is hardly a ground for rejecting the evidence of Munshi that the hands of the deceased had been tied at his back when he was forcibly taken by the accused into the Arhar field and shot dead there. The wrist around which the rope had been tied are not flabby limbs of the body. The deceased was a rustic, hard skinned villager. The rope was, therefore, not likely to leave any distinct imprints on the wrists. In any case they might be disappeared or become extremely faint at the time of post- mortem examination which was conducted about 24 hours after the string had been untied by the investigating officer. Held, that the mere fact that the Doctor did not note the imprints of rope on the wrist of the deceased and the cye-witness Munshi has stated that the hands of the deceased was tied with string, is not such a discrepancy on which the testimony of the eye-witness might be rejected. Maharaj Singh v. State of Rajasthan, AIR 1981 SC 936. Omission of injuries in F. I. R.-Failure to mention injuries in F.I.R. is fatal to prosecution which the case based on F.I.R. and there is enmity between the parties-held, the conviction cannot be based on such evidence. Wahid v. The State, 1980 All Cri R 20: 1980 All. Cri C 40: 1980 Cri LJ NOC 51 (All.) Omission of names in F. I. R.--The Supreme Court remarked- "In regard to the seven persons whose names were not mentioned in the First Information Report, P. W. 1 was unable to explain why she failed to mention their names in the report. She frankly stated that she cannot state the reason as to why their names were not mentioned. We think that these seven persons are entitled to benefit of doubt and should be acquitted. Juwar Singh v. State of M. P., AIR 1981 SC 373. Material discrepancy. Where there are variations relating to the vital part of the prosecution in the statement of the eye-witnesses, their statements cannot be made base of conviction. 1976 Cri LJ 837 SC) relied on. Lal Singh v. State, 1980 Cri LJ NOC 51 (Raj): 1980 Raj Cri C 213: 1979 Raj LW 214: 1979 WLN 80. Discrepancies-Comparatively of minor character-Effect. It is contended before the Supreme Court that testimony of eye-witnesses was full of dis- crepancies and in fact indicated that three different versions were put forward by the prosecution from time to time. The Supreme Court observed that this aspect of matter fully engaged the attention of the trial court and the High Court and we find ourselves in agreement with them in the view that the discrepancies printed out are comparatively of a minor character which do not go to the root of the prosecution story and need not be given undue importance. Jagdish v. State of M. P., AIR 1981 SC 1067.1 Where the witness materially improved his earlier statement. In view of the fact that the witness has materially improved upon his earlier statement only with the object of involving the appellant, held, the testimony of the witness ought to have been altogether rejected. Randhir Singh v. State, 1980 Cri LJ 1397 Del (DB). Statement of witness contains minor discrepancies. Minor discrepancies rather indicates truth than making the statement unreliable. Minor discrepancies are not the indication of falsehood. State of Assam v. Krishna Rao, AIR 1973 SC 28: 1973 Cr LJ 169: 1973 Cri LR 304: 1973 SCC (Cri) 222. Discrepancies and contradictions in statement of eye-witnesses. In S. T. Shinde's case it was pointed out by the learned counsel, some discrepancies and contradictions in the statements of the eye witnesses which according to him, are a good ground for discarding their evidence in toto. The Supreme Court observed that these discrepancies pertain to the precise number of blows given to the assailant, the standing of lying posture of the victim at the time of the assault etc. Such discrepancies in matters of detail always occur even to the evidence of the truthful witnesses. Such variations creep in because there are always natural differences in the faculties of different individuals in the matter of observation, perception and memorisation of details. They are hardly a ground for rejecting their evidence when there is consensus as to the substratum of the case. S. T. Shinde v. State of Maharashtra, AIR 1974 SC 791: 1974 Cri LJ 674: 1974 SCC (Cri) 382: (1974) 4 SCC 213. Inconsistencies and discrepancies-When fatal. It is no doubt true that prosecution evidence does suffer from inconsistencies here and discrepancies their but that is a short coming from which no criminal case is free. The main thing to be seen whether those inconsistencies etc., go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies obtaining in defence. In the latter, however, in no such benefit may be available to it. Krishna Pillat v. State of Kerala, AIR 1981 SC 1237. Normal and material discrepancies. The discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and he like. Material discrepancies are those which are not normal, and not expected of a normal person. State of Rajasthan v. Kalki, AIR 1981 SC 1390. Child Witness Witness-A boy of 5 years old A starving youth was given shelter by a kindly couple. The reward of that kindness is the murder of the woman and her child. In the case the only witness was a child of 5 years whose mother and also younger brother were murdered. He was also injured. The accused was the house-servant of young age. The Supreme Court observed that "the basic evidence in the case is of a child of five who answers many vital questions with a nod of the head, one way or the other. A witness, who by reason of his imonatur understanding was not administered oath and who was privileged, by reason of his years, not to make his answer in an intelligible and coherent manner is unsafe to be trusted wholesale. The Supreme Court further observed that children, in the first place, mix up what they see with what they like to imagine to have seen and besides a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life. Suresh v. State of U. P., AIR 1981 SC 1122. Witness-Young boy. The Supreme Court observed- The High Court adopted the correct approach in finding that though there were no infirmities in the evidence of the witness as it stood but in view of the fact that he was a young boy it would be prudent to seek corroboration of the evidence of such witness. B. Bhikha v. State of Gujrat, AIR 1971 SC 1064. Child witness-Does not know the name of the accused. A child witness, aged 12 years old, came into witness-box, he did not know the name of the accused but in other aspects he corroborated the prosecution story, held by Division Bench his testimony can not be discarded on the point that he did not name the accused. State of H. P. v. Hiranjit, 1980 Cri LJ NOC 11 HP. Nature and testimony of child witness. The Lucknow Bench observed- Love, hatred, ambition, hypocrisy, consideration of religion, rank, fortune, caste, creed are as yet unknown to the children. Préconceived notions, nervous irritation or long experience normally do not lead them to form an erroneous impression or to formulate complicated scheme for false implication. These great advantages accompany certain correspondings drawbacks. They use same words as we do but they convey to them a different idea. They perceive things differently. Their conception of magnitude, pace, beauty, distance etc., is not like that of elders. What we ignore they fear or to take delight. Their horizon is limited. They cannot perceive many things which we are able to note easily. They are easily susceptible to tutoring. They may easily borrow from imagination. They may easily believe what they are told. They can be easily tought stories. They live in,a world of make believe so that they often become conceived that they have really seen the imaginary incident which they are taught to relate. As such conviction can be based the statement of a child but the testimony must undergo strict judicial scrutiny- a-cautions approach. Budhram v. State, 1982 All Cri R 528: 1982 All WC 892. Witness-Child-To be approached with caution. Supreme Court obser- ved that it may be pointed out staightway that he was a child witness aged only 6 years at time when he gave evidence. His evidence is, therefore, to be approached with great caution. He was according to the prosecution the only eye witness to the crime. We have carefully gone through his evidence, but we are constrained to observe that even after making the utmost allowance in his favour in view of the fact he is a child witness. We find it difficult to accept his testimony. There are several contradictions from which his evidence suffers, such as who had which weapon, but it is not merely on account of these contradictions of a minor character that we are inclined to reject his evidence. There are serious infirmities affecting his evidence and of them, the most important is that he is supposed to have given the name of appellant No. 2 as the assailant of the deceased even though he had never seen him before the date of the incident. C. P. Fernandes v. Union Territory, Goa, AIR 1977 SC 135: 1977 Cri LJ 167: 1977 SC Cri R 111: 1977 SCC (Cri) 154. Witness-Child-Intelligent-No observed- infirmity. The Supreme Court observed- No doubt she is a child witness but she is an unusually intelligent child. We do not think her evidence suffers from any infirmity which would entitle us to discredit her. Sadhu Singh v. State of U. P., AIR 1978 SC 1506: 1978 All LJ 887: 1978 SC Cri R 403. Witness-Child-A girl of 10 years old-Infirmities found in her statement -Unsafe to base upon her statement. Supreme Court observed, as regards P.W. Kamala Kumari sole eye-witness aged 9 or 10 years, the High Court has found her statement highly unsafe to convict the appellant on the uncorrobo- rated testimony of this child witness. The High Court has pointed out infirmities in her evidence and given cogent reasons why they think it unsafe to act upon her uncorroborated statement. The circumstances also destroy her testimony and claim of being eye-witness. The Supreme Court has agreed with views of the High Court. State of Delhi v. Vijay Pal, AIR 1980 SC 1621. Witness-Boy of rural area of 13 years old having mature understanding- His testimony-The Supreme Court observed- Hardip Singh is a lad of 13 years. In our country and particularly in the rural areas it is difficult to think of a lad of thirteen years as a child. A vast majority of boys round about that age go to the fields and do men's work. They are certainly capable of understanding the significance of the oath and the necessity to speek the truth. A persual of his evidence also shows that he has certainly attained a measure of mature understanding. We do not think we can accept Dr. Chitalcy's argument and proceed on the basis that Hardip Singh is a child witness. Even otherwise having gone through his evidence we are satisfied that his evidence does not suffer from any infirmity. Tehal Singh v. State of Punjab, AIR 1979 SC 1347. Child and tutored witnesses. The Supreme Court observed that the third criticism against the evidence of these two witnesses was that they were tutored witnesses and had given the prosecution version parrot like. Both of them were teensaged children of Teja Singh and their version was so truthful that it was rightly believed by the Courts below. Dalip Singh v. State of Punjab, AIR 1979 SC 1173. Child Witness At this juncture, we are tempted to advert to the case of Suryanarayana vs State of Karnataka, (2001) 9 SCC 129. In the said case at paragraph-5, it has been stated as under: "5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eye-witness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eye-witness. The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the Court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not." [73 DLR (AD) 245] In the case of Dattu Ramrao Sakhare vs State Maharashtra, (1997) 5 SCC 341, it has been held that a child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.[73 DLR (AD) 246] As regards competency of a child to depose in a case, it is now well settled by the reported cases cited above that a child as young as 5/6 years can depose evidence if she understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinised and caution has to be exercised in each individual case. The Court has to satisfy itself that the evidence of a child is reliable and untainted. Any sign of tutoring will render the evidence questionable if the Court is satisfied, it may convict a person without looking for corroboration of the child's evidence. As regards credibility of child witness, it is now established that all witnesses who testify in Court must be competent or able to testify at trial. In general, a witness is presumed to be competent. This presumption applies to child witnesses also. [73 DLR (AD) 247] In the case of the State vs Badiuzzaman, 25 DLR 41, it has been held that testing of intelligence of a witness of tender age is not a condition precedent to the reception of his evidence. Preliminary examination of the child witness before receiving his evidence is not imperative. A person who can understand questions and can give rational answers to them is a competent witness to testify in Court. [73 DLR (AD) 247] In view of the principle laid down in the cases referred to above and the provisions of section 118 of the Evidence Act, 1872, there is no room for doubt that testing of intelligence of a witness of a tender age is not a condition precedent to the reception of his evidence. Therefore, preliminary examination of a child witness is not at all necessary. [73 DLR (AD) 247] Only when it appears to the Court that a person charged with an offence is a child, the Court is required to direct an enquiry to ascertain his age. When an accused is above 16 years of age when charge is framed against him, he is not entitled to the benefit of the Children Act, 1974. Section-66(1) Bimal Das Vs. The State, 14BLD(AD) 218 Child witness Before examining a child of tender age as a witness, the Court should satisfy itself that the child is intellectually developed enough to comprehend what he has seen and to give an intelligent account of it to the Court. If the child is found sufficiently intel- ligent to understand the questions put to him and he is capable of giving rational answers to those questions, then he is as good as any other adult witness. Fazlul Haq Sikder Vs. The State, 15BLD (HCD)364 Child witness A child witness who is himself a victim of assaults and saw the accused persons killing his father and testifies in the Court to the said effect and remains unshaken in cross- examination, is a competent and reliable witness. Forkan alias Farhad and another Vs. The State, 15BLD(AD)163 Child witness A child witness is a competent witness to give evidence in Court provided it appears from its deposition that it could understand the question put and give rational answers thereto. Evidence Act, 1872 (1 of 1872), Section-118 The State vs. Ali Hossain, 18BLD (HCD) 655 Ref: AIR 1937 (Patna) 662; 1BLC (1996) 173; 43DLR(AD)(1991)234;AIR 1953 (Patna) 246;-Cited ৫ বছরের শিশুর সাক্ষ্য-একজন অন্নহীন যুবককে একটি সদয় দম্পত্তি আশ্রয় দিয়েছিলো। উক্ত দয়ার পুরস্কার হিসেবে মহিলা ও তার সন্তানকে হত্যা করা হলো। এই মামলায় ৫ বছরের একটি শিশু একমাত্র সাক্ষী যার মা ও ছোট ভাইকে হত্যা করা হয়েছিলো। সেও আহত হয়েছিলো। আসামী যুবক বয়সের গৃহকর্মী ছিলো। সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে এই মামলার মৌলিক সাক্ষ্য একজন ৫ বছর বয়সী শিশুর যে অনেক গুরুত্বপূর্ণ প্রশ্নের উত্তর মাথা নেড়ে দিয়েছে। একজন সাক্ষী যাকে তার অপরিপক্ক বোধশক্তির জন্য শপথ পাঠ করানো হয় না এবং যাকে তার বয়সের কারণে বোধগম্য ও সুস্পষ্ট পদ্ধতিতে উত্তর না দিতে সুবিধা দেয়া হয় তার সাক্ষ্য গ্রহণ করা সামগ্রিকভাবে নিরাপদ নয়। [সুরেশ বনাম স্টেট অবস ইউপি, এ আই আর ১৯৮১ এসসি ১১২২] অল্প বয়স্ক তরুনের সাক্ষ্য- সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে হাইকোর্ট সঠিক সিদ্ধান্ত নিয়েছেন যে যদিও সাক্ষীর সাক্ষ্যে কোন ধরণের দূর্বলতা পাওয়া যায়নি, কিন্তু সে বয়সে তরুন হওয়ায় তার সাক্ষ্য অন্য সাক্ষ্য দ্বারা সমর্থনের চেষ্টা করা সমীচীন হবে। [বি ভিক্ষা বনাম স্টেট অব গুজরাট, এ আই আর ১৯৭১ এসসি ১০৬৪] শিশু সাক্ষী-আসামীর নাম না জানা- একজন ১২ বছর বয়সী শিশু সাক্ষী সাক্ষী দিতে সাক্ষীর কাঠগড়ায় আসলো, সে আসামীর নাম জানে না। কিন্তু অন্যদিকে সে বাদীপক্ষের ঘটনাকে সমর্থন করেছিলো। দ্বৈত বেঞ্চ সিদ্ধান্ত নিয়েছেন যে সে আসামীর নাম বলতে পারেনি বিধায় তার সাক্ষ্য বাতিল করা যায় না। [স্টেট অব এইচপি বনাম হিরনজিত, ১৯৮০ ক্রিএলজে এনওসি ১১ এইচপি] শিশু সাক্ষী- সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন এটা সোজাসুজি বলা যায় যে যখন তিনি সাক্ষ্য দিয়েছিলেন তখন তার বয়স ছিলো ৬ বছর। তিনি একজন শিশু সাক্ষী। তার সাক্ষী খুব সতর্কতার সাথে বিবেচনা করতে হবে। [সি.পি. ফারনানদেস বনাম ইউনিয়ন টেরিটোরি, গোয়া, এআইআর ১৯৭৭ এসসি ১৩৫; ১৯৭৭ ক্রিএলজে ১৬৭] শিশু সাক্ষী- সন্দেহ নেই সে একজন শিশু সাক্ষী কিন্তু সে অস্বাভাবিকভাবে মেধাবী শিশু। আমরা মনে করি না যে তার সাক্ষ্যে কোন দূর্বলতা আছে যার কারণে আমরা তাকে সন্দেহ করতে পারি। [সাধু সিং বনাম স্টেট অব ইউপি, এ আই আর ১৯৭৮ এসসি ১৫০৬; ১৯৭৮ অল এলজে ৮৮৭] ১০ বছর বয়সী শিশুর সাক্ষী- সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে, ৯-১০ বছর বয়সী একমাত্র চাক্ষুস সাক্ষী কমলা কুমারীর সাক্ষ্যকে হাইকোর্ট অন্য কোন সাক্ষ্য দ্বারা সমর্থিত না হওয়ায় আপীলকারীকে উক্ত সাক্ষ্যের উপর ভিত্তি করে সাজা দেয়া অনিরাপদ মনে করেছেন। হাইকোর্ট তার সাক্ষ্যে দূর্বলতা পেয়েছেন এবং দৃঢ় কারণ দেখিয়েছেন কেন তার অসমর্থিত সাক্ষ্য অনিরাপদ। পরিস্থিতিও তার এই সাক্ষ্যকে বাতিল করে। হাইকোর্টের মতামতের সাথে সুপ্রীম কোর্ট একমত পোষণ করেন। [স্টেট অবস দিল্লী বনাম বিজয় পাল, এ আই আর ১৯৮০ এস সি ১৬২১] ১৩ বছর বয়সী গ্রাম্য এলাকার একজন বালকের সাক্ষ্য-হার্দিপ সিং ১৩ বছর বয়সী একজন বালক। আমাদের দেশে বিশেষ করে গ্রাম্য এলাকায় একজন ১৩ বছর বয়সী বালককে শিশু হিসেবে বিবেচনা করা কঠিন। এমন বয়সের বিশাল সংখ্যক বালক মাঠে যায় এবং প্রাপ্ত বয়স্ক মানুষের মত কাজ করে। তারা নিশ্চিতভাবে শপথের তাৎপর্য এবং সত্য বলার প্রয়োজনীয়তা বুঝতে সক্ষম। তার সাক্ষ্য পর্যালোচনা করেও এটা বোঝা যায় যে সে পরিপক্ক বোধশক্তি সম্পন্ন। আমরা বলতে পারি না যে হার্দিপ সিং একজন শিশু সাক্ষী। এমনকি তার সাক্ষ্য পড়ে আমরা এ ব্যাপারে সন্তুষ্ট যে তার সাক্ষ্যে কোন ধরণের দূর্বলতা নেই। [তেহাল সিং বনাম স্টেট অব পাঞ্জাব, এ আই আর ১৯৭৯ এস সি ১১৭৩] শিশু এবং শেখানো সাক্ষী-সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে, এই সাক্ষীর সাক্ষের বিরুদ্ধে তৃতীয় সমালোচনা হলো যে তারা শেখানো সাক্ষী এবং তারা তোতা পাখির মত বাদীপক্ষে সাক্ষ্য দিয়েছে। তাদের উভয়ই তেজা সিং এর কিশোর বয়স্ক সন্তান এবং তাদের সাক্ষ্য এতটাই সত্য যে নিম্ন আদালত তাদের সাক্ষ্যকে যথাযথভাবে বিশ্বাস করেছেন। [ দালিপ সিং বনাম স্টেট অব পাঞ্জাব, এ আই আর ১৯৭৯ এস সি ১১৭৩] Witness-Not cross-examined-Testimony Where no cross-examination has been made and the witness is left uncross-examined, even no suggestion has been put to him, the testimony of such witness is to be accepted as it is accepted by the opposite party by not-Cross-examining him on any point. State v. Ram Avtar, 1980 Cri LJ NOC 100 (Del). Oral Evidence- Considerations The Supreme Court says where no evi- dence is produced in rebuttal of the Oral evidence but that does not mean that the Court is bound to accept that evidence. The Judges are not computers. In asserting the value to be attached to Oral evidence, they are bound so call into aid their experience of life. As Judges of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities. Chaturbhuj Pande v. Collector, Raigarh, AIR 1969 SC 255. Reliance on oral evidence of the interested witnesses in utter disregard of the principles of law of evidence deprecated. Abani Mohan Saha vs Asstt. Custodian 39 DLR (AD) 223. Muslim Marriage is a socio–religious contract between a man and a woman and as such signatures of the parties in the Kabinnama are essential for proving marriage. No amount of oral evidence can cure the deficiency and no amount of oral evidence is sufficient to prove marriage when the plaintiff fails to prove the Kabinnama according to law. Khodeja Begum and others vs Md Sadeq Sarkar 50 DLR 181. Reconveyance–On the face of registered instrument and in the absence of any contemporaneous written instrument, the oral evidence is not at all sufficient to hold that there was any agreement between the parties for reconveyance of the suit land. The established rule of evidence to be relied is that oral evidence is inadmissible for the purpose of asserting the intention of the parties in the face of the written instrument. Budhiswar Biswas vs Akbar Ali Sheikh 43 DLR 183. Since the Hukumnama shows that Firoz is the only recipient of the land oral evidence to prove that the same is not correct cannot be allowed. Abu Ashed Bhuiyan and others vs Abu Taher Bhuiyan and others 54 DLR 209. What sections 91 and 92 provide–It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing terms of a document or of ascertaining the intention of the parties thereto. Feroza Majid vs JB Corporation 39 DLR (AD) 78. Although oral evidence contradicting the contents of a document is not generally admitted, such evidence is admissible in exceptional circumstance when the validity of the document itself on the ground of fraud is in issue. Tuglak Khan vs Sultan Nasiruddin 45 DLR 615. Oral evidence when inadmi¬ssible–It is surprising to notice that the subordinate Judge could be oblivious of the provision of law and decide a question of fact on the basis of inadmissible oral evidence of no worth at all contrary to admitted documentary evidence on record and could also decide the question of fact without consideration of the contents of the relevant documentary evidence. Pragati Industries Ltd vs Shahida Khatun 43 DLR 429. Written terms of the contract cannot be altered or varied by oral evidence. Serajul Islam (Md) vs Binoy Bhusan Chakraborty and others 47 DLR 248. There is nothing in section 92 of the Evidence Act to prevent the admission of oral evidence to prove that a mortgage has been discharged partly by payment and partly by release of debt. Tafzal Ahmed Contractor vs Abdur Rahim and others 48 DLR (AD) 94. The onus lies heavily on the plaintiff to prove that his predecessor got delivery of possession of the property and he inherited the same by producing documentary and oral evidence but the plaintiff failed to prove that and even no secondary evidence was attempted to be taken hence no interference with the impugned judgment is called for. Aftabuddin Sarkar vs Ashek Ali Mothers 7 BLC (AD) 97. The lower appellate Court has rightly observed that a written registered document cannot be altered or varied by oral evidence. It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing terms of a document or of ascertaining the intention of the parties thereto. Abdul Mannaf vs Joynal Abedin and another 10 BLC 361. The oral evidence is not admissible in varying or contradic ting the recitals contained in the registered sale deed in view of the sections 91 and 92 of the Evidence Act which clearly excludes oral evidence for the purpose of varying or contradicting the terms contained in a registered document. The trial Court has committed wrong and error in granting one-third share to the plaintiffs accepting the oral evidence of the DWs overlooking the provision of sections 91 and 92 of the Evidence Act. Begum Jan and others vs Moklesur Rahman and ors 6 BLC 580. Evidence —Its admissibility in a preemption case — No evidence is admissible to vary the contents of the documents by any oral evidence — In a pre-emption case it is the transfer which is sought to be pre-empted. Jaynal Abedin Molla Vs. Aliar Rahmax and others; 3BLD (AD) 105 Admissibility of oral evidence? In a pre-emption case sale or exchange can be decided — Whether evidence can be adduced to prove that the document is not what it purports to be When the disputed Kabala is between stranger to the document in question and a party thereto, there is no bar in leading oral evidence to prove that the document in question is not what it purports to be but when it is between the parties to the document such evidence is not admissible — There is no error of law in holding that the transaction is an exchange and not a sale and as such exempted from preemption — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96 Brindaban Das and another Vs. Ershad Ali Mondal, 6BLD (HCD)85 Ref. 17 DLR 15; 26 DLR(SC) 59; 35 DLR(AD)230; A.I.R. 1958 (SC)448 — Cited. Admissibility of oral evidence — Whether a sale deed can be declared a mortgage deed solely on oral evidence — Oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible — It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto — Evidence of the witnesses that the document is not a sale deed but is a mortgage deed is clearly inadmissible. Mrs. Feroza Majid and another Vs. Jiban Biina Corporation, represented by its Managing Director, 7BLD(AD)124 Ref. 27 l.A. 58 — Cited. Exclusion of oral evidence—Admission of oral evidence of the acts and conducts of the parties in determining the true nature of the transaction does not infringe upon the provision of section 92 of the Evidence Act — it can be shown by oral evidence that though a document in a particular form was executed, in fact it is different from what it appears to be — When a docuriient is meant merely as an informal memorandum of transaction and not as a document embodying disposition of a property, oral evidence is not excluded. A.M. Abul Kashim Vs. Nasiruddin Ahmed and others; 8BLD (HCD) 33 Ref. 37 DLR 87 — Cited. Evidence — whether it is admissible to vary the terms of a written and registered document — Oral evidence though not admissible to vary, modify or alter the terms of a written registered document, will however be admissible to prove that the nature and character of the instrument is different from what it is alleged to be or that the instrument was a mere paper transaction that it was never intended to be given effect to or acted upon. Mozem Par and others Vs. Fazie Karim Biswas and others; 4BLD (HCD) 173 Ref. 19 DLRI7; 38 l.A. Page-85; (1924) 51 l.A. Page-305; 38 C.W.N. Page — 883; 20 C.W.N. Page-347; 16 DLR(SC)629; PLl968(Karachi) 307; A.LR. 1936 (PC) 61 — Cited. Onus to prove parentage — When oral evidence was inconclusive to decide the question of parentage whether the Court can decide the same on the basis of the documents showing dealings with the property — The onus was on the plaintiff to prove that his father Nagar was the son of Gour Majhi — In view of the inconclusive testimony of the witnesses as to parentage of the plaintiff, the appellate Court rightly dismissed the suit when the documentary evidence as to the ownership, use and mode of transfer of the impartibly property clearly indicated that the plaintiff had at no point of time raised any claim or had any possession in the suit property. Sree Gopal Chandra Mondal and another Vs. Lasman Dasi and others; 7BLD (AD) 107 Documentary evidence- Exclusion of oral evidence— As provided under section 91 no evidence other than the document itself is admissible when the terms of contract or disposition of property are reduced to a document. Similarly section 92 prohibits contradiction of the contents of documents by oral evidence. Nadabipatra neither creates any interest nor it transfers title. Khorshed Ali Bhuiyan being dead his heirs Shamsun Nahar and others Vs. Gunjor Ali and others. 2, MLR (1997) (HC) 38. Exclusion of oral evidence by documentary evidence— Deeumentary evidence excltides oral evidence as contemplated under section 94 of the Evidence Act, 1872. Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd. 4, MLR (1999) (HC) 158. When a disputed deed is evidently an out and out Sale deed, Sections 91 and 92 of the Evidence Act stand as bar against interpretation it as a deed of gift. Oral evidence cannot alter or change the contents of the document. Mosammat Saleha Bibi V. Taib Ali Mollah and others, 13 BLD (HCD) 677. Exclusion of oral evidence It is settled by consistent judicial pronouncements that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the Intention of the parties thereto. Thus no oral evidence to transform a nadabi-patra deed into a deed of gift is admissible. Khorshed Ali Bhuiyan Vs. Gsjan Ali, 17 BLD (HCD) 470. No oral or extraneous evidence to contradict or vary the terms of the contents of the document is admissible under section 92 of the Evidence Act. It is thus clear that the written terms of a contract cannot be altered or varied by oral evidence. Md. Serajul Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241. Oral Evidence barred under all circumstances? For proving his plea that the disputed sale deed under preemption was, in fact, a deed of release the pre-emptee is not debarred from adducing oral evidence to prove the real nature of the transaction. Under the circumstances, sections 91 and 92 of the Evidence Act do not stand in the way. Abul Hashem Vs Sheikh Ahmed and another, 17 BLD (HCD) 385. Ref: 39 DLR(AD)78; 44DLR(AD)270; 3 BLD(AD) 105; 43DLR 429; 35 DLR(AD) 334; PLD 1960 (Lahore) 231; 12 DLR 149; 19 DLR 17 and 654; 8BLD33; 6BLD88; AIR 1950(SC)15; AIR 1958(SC)448; AIR 1955 (Bombay) 320; 3BLD (AD) 105; PLD 1960 (1.,ahore)231; A1R1936(PC) 70; AIR 1931 (Orissa)177; DLR 1958 (SC) 448; AIR 1962 (Madras) 360; AIR 1958(SC) 50; AIR 1938(Nagpur) 335; 95 Indian Cases 512; 37 DLR87—Cited. Section 92 of the Evidence Act does not preclude the admissibility of extrinsic evidence to show that the three disputed documents purported to be separate sale deeds are in reality part and parcel of the same transaction and are deeds of exchange. Patan Khan and others Vs. Amud Ali Sheikh and others, 14 BLD (HCD) 461. Ref: Ismail Shah Vs. Saleh Muhammad Shah A.I.R. 1925 (Lahore) 326; Ram Badan Lal and others Vs. Kunwar Singh and others, A.I.R. 1938 (AII)229; Randhir Singh and another Vs. Randhir Singh and others; A.I.R. 1937 (All) 665; Prabhu Dayal and another Vs. Shadi Ram and another, A.I.R. 1919 (Lahore) 246; Kishen Lal Vs. Ram Lal and others; A.I.R. 1927 (All) 696; Hanif-un-nisa Vs. Faiz-un-nisa, I.L.R. 33 (All) 340 = It IC.398-Cited. Although under Section 92 of the Evidence Act oral evidence is inadmissible for the purpose of contradicting, varying, adding to, or subtracting from the terms of a written contract, Proviso (2) to Section 92 provides that the existence of any separate oral agreement as to any matter, on which the document is silent and which is not inconsistent with its term, may be proved. Tafzal Ahmed Contractor Vs. Abdur Rahim and others 16 BLD (AD) 160. Ref: Mohammad Ahmed Saeed Khan Vs. Kishori Lal, A.I.R. 1932 (Allahabad) 375; Kamala Sahai Vs. Babu Naridan Mian, 11CLJ 39; LalaBihari Lal Vs. Abdul Aziz, 119 I.C. 92;—Cited. In a suit for specific performance of contract where the agreement for sale is not reduced to writing, the burden is heavily upon the plaintiff to prove by oral evidence that there was such an agreement; that consideration money was paid and any unpaid portion of the consideration was offered; and that in spite of the offer of the remainder of the consideration amount and request to execute and register the deed of sale, the defendant refused. [73 DLR (AD) 376] Restitution of conjugal rights Restitution of conjugal rights is a reciprocal right of both the husband and wife. It is thus neither discriminatory nor violative of any of the provisions of the Constitution. The view taken by a Single Judge of the High Court Division in the case of Khodeja Begum and ors. Vs. Md. Sadeq Sarker, reported in 1 8BLD3 1 that no amount of oral evidence is sufficient to prove the marriage unless the marriage is attendant with a duly executed kabinnama or that restitution of conjugal rights is violative of social justice and repugnant to Article 27 of the Constitution is not a correct proposition of law. Md. Chan Mia Vs. Rupnahar, 18 BLD (HCD) 329 Onus – in the instant case the specific case of the plaintiff being that he neither executed or registered the deed in question nor received the consideration money as mentioned in the kabala, he was entitled to adduce oral evidence to prove his said case. As the plaintiff adduced evidence to prove his case of non-execution and non-registration of the kabala by him and non-receipt of the consideration as well, the onus shifted upon the defendant to prove that it is the plaintiff who on receipt of the total consideration of taka 15,000/- executed and registered the deed which he failed. Foez Ahmed Vs. Joynal Abedin & Ors 12 BLT (HCD) 476 Exclusion of oral evidence—Admission of oral evidence of the acts and conducts of the parties in determining the true nature of the transaction does not infringe upon the provision of section 92 of the Evidence Act — it can be shown by oral evidence that though a document in a particular form was executed, in fact it is different from what it appears to be — When a document is meant merely as an informal memorandum of transaction and not as a document embodying disposition of a property, oral evidence is not excluded. A.M. Abul Kashim Vs. Nasiruddin Ahmed and others; 8BLD (HCD) 33 Ref. 37 DLR 87 — Cited. Admissibility of oral evidence — Whether a sale deed can be declared a mortgage deed solely on oral evidence — Oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible — It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto — Evidence of the witnesses that the document is not a sale deed but is a mortgage deed is clearly inadmissible. Mrs. Feroza Majid and another Vs. Jiban Biina Corporation, represented by its Managing Director, 7BLD(AD)124 Ref. 27 l.A. 58 — Cited. Exclusion of oral evidence It is settled by consistent judicial pronouncements that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the Intention of the parties thereto. Thus no oral evidence to transform a nadabi-patra deed into a deed of gift is admissible. Khorshed Ali Bhuiyan Vs. Gsjan Ali, 17 BLD (HCD) 470. When a disputed deed is evidently an out and out Sale deed, Sections 91 and 92 of the Evidence Act stand as bar against interpretation it as a deed of gift. Oral evidence cannot alter or change the contents of the document. Mosammat Saleha Bibi V. Taib Ali Mollah and others, 13 BLD (HCD) 677. Mere suggestion is not evidence Division Bench of Karnataka High Court observed that a mere suggestion made and denied is not evidence at all. Parmeswari Bai v. Muthoji Rao Scindia, AIR 1981 Kant 40, DB. Importance of legal principles lies in their application to given facts.- Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. Shankar Lal v. State of Maharashtra, AIR 1981 SC 765. Positive Evidence Positive evidence in the case is that of the eye witnesses who had seen and narrated the entire occurrence. Piara Singh v. State of Punjab, AIR 1977 SC 2274: 1977 Cri LJ 1941: 1977 SC Cri R 418: 1977 All Cri C 374: 1977 SCC (Cri) 614. Evidence-Depends power of observation The Supreme Court observed that it must also be remembered that the evidence given by a witness would very much depend upon his power of observation and it is possible that some aspects of an incident may be observed by one witness while they may not be witnessed by another though both are present at the scene of occurrence. Boya Ganganna v. State of A. P., AIR 1976 SC 1541: 1976 Mad LJ (Cri) 503: 1976 UJ (SC) 122: 1976 Cri LJ 1158: 1976 All Cri C 27: 1976 SCC (Cri) 102: (1976) An WR (HC) 15: (1976) 1 SCC 584: (1976) 2 SCJ 284: 1976 Cri LR (SC) 3. Suspicion and doubts cannot take place of legal proof. It is now well- settled, observed by the Supreme Court, that strong suspicion, strange coinci- dences and grave doubts cannot take place of legal proof. State of Kerala v. M. M. Mathew, AIR 1978 SC 1571. Effect of grave suspicion.-Division Bench of the Orissa High Court held that the suspicion, however grave, could not take the place of proof. State of Orissa v. Tri Nath Dash, 1982 Cri LJ 942, DB. Strict rules of evidence-Not applicable to departmental proceedings. The Supreme Court observed that departmental proceedings are not governed by strict rules of evidence as contained in Evidence Act. Reliance was placed on the decision in State of Mysore v. Shivabasappa, AIR 1963 SC 375, where it was held that domestic tribunals exercising quasi-judicial function are not courts and, therefore, they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. K. L. Shinde v. State of Mysore, AIR 1976 SC 1080. Applicability of Evidence Act under domestic enquiry The Supreme Court observed that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal can not be held good. State of Haryana v. Rattan Singh, AIR 1977 SC 1512: 1977 Lab IC 845: 1977 Serv LC 58: 1977 UJ (SC) 298: (1977) 1 Serv LR 750: (1977) 2 SCC 491: 34 Fac LR 264: 1977 SLWR 182: 1977 SCC (Lab) 298: 1977 Serv LJ 408. Enquiry Officers are not bound by the technical rules of evidence. The Supreme Court observed that it is true that in numerous cases it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act, but it has no where been laid down that even substantive rules which would form part of principles of natural justice also can be ignored by the domestic tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of pro- cedure contained in the Evidence Act. Central Bank of India v. P. C. Jain, AIR 1969 SC 983: (1969) 2 SCJ 583: 1969 MLJ (Cri) 748. Relied on- 14 ds Khardah Co. Ltd. v. Their Workmen, (1964) 3 SCR 506: AIR 1964 SC 719 M/s. Kesoram Cotton Mills Ltd. v. Gangadhar, (1964) 2 SCR 809: AIR 1964 SC 708. There is a distinguishing feature between the evidence before the Court in a judicial proceeding and before any other person not being a Court and not dealing with a judicial proceeding. Ayub Ali vs Bangladesh 46 DLR 191. When a fact already stands proved according to the requirements of section 3 of the Evidence Act and there being no particular method specified for proving a fact any demand to require a higher standard of proof is an error of law. Md Shahadat Hossain vs Khohiladdi Shaikh 37DLR126. Failure of witnesses to identify accused persons who are strangers to the witnesses- Identification if made without naming them Court's duty to sift evidence in that circumstance -Any statement, express or implied, made by a witness identifying the accuseds but without naming them, it qualifies as substantive evidence -Test of. Ratan Kha vs State 40 DLR 186. Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480. A partisan witness is no doubt a suspect, but he cannot be discarded without finding any inherent infirmity and/or contradictions in the evidence making the same unworthy of credence. Dulal Miah alias Dulal alias NurunNabi Vs Ruhul Amin and others, 18BLD (HCD)485 When enmity is admitted between the parties and the witnesses and the whole prosecution case depends on a dying declaration, the Court as a matter of caution has to insist on corroboration of the prosecution case by independent evidence. Md. AbulKashem Vs. The State, 15BLD (HCD)205 Ref: 42 DLR (AD) 200-Cited In a case where there is bitter enmity between the parties, the rule of prudence re- quires that there must be some sort of corroboration of the evidence of interested wit- nesses in order to find the accused guilty of the charged with. Fazlul Haq Sikder Vs. The State, ISBLD (HCD)364 Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564. PWs though relations they are natural and competent witnesses. Their evidence cannot be discarded only because they are relations. Shadat Ali vs State 44 DLR 217. Mere relationship cannot be a ground for discarding the evidence of a witness unless he is found to be biased and resorting to any falsehood. Siraj Mal vs State 45 DLR 688. মৃতের আত্মীয়ের সাক্ষ্য-কোন সাক্ষীর মৃতের সাথে সম্পর্ক আছে বলেই এটা ধরে নেয়া যাবে না যে তিনি একজন স্বার্থহীন স্বাধীন সাক্ষী নন। [ লাভ সিং বনাম স্টেট অব পাঞ্জাব, এ আই আর ১৯৭৬ এস সি ৮৩] মৃত ব্যক্তির স্ত্রী-সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে মৃত ব্যক্তির স্ত্রী হওয়া তার সাক্ষ্য বাতিল করার কোন কারণ নয়। তার সাক্ষ্য গুরুত্বের সাথে নিরীক্ষা করা উচিত। [স্টেট অব ইউ.পি. বনাম সুরেশ, ১৯৮২ ক্রি এলজে ৮৫০ (এসসি)] পারিবারিক সদস্যদের সাক্ষ্য-সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে এরকম পরিস্থিতিও সৃষ্টি হতে পারে যখন শুধুমাত্র আগ্রহী সাক্ষী ছাড়া অন্য কোন সাক্ষী খুজে পাওয়া যায় না। যেমন- যখন গভীর রাতে কোন বাড়িতে কোন ঘটনা ঘটে তখন উক্ত ঘটনা একমাত্র পারিবারিক সদস্যগণই দেখতে পারেন। এই ধরনের ক্ষেত্রে এটা জোর দেওয়া ঠিক হবে না যে পরিবারের সদস্যদের সাক্ষ্য কেবল তাদের আগ্রহের কারণে অবিশ্বাস্য হওয়া উচিত নয়। [সারবান সিং বনাম স্টেট অব পাঞ্জাব, এ আই আর ১৯৭৬ এসসি ২৩০৪; ১৯৭৬ ক্রি এলজে (এসসি) ৩৬২] নিহত ব্যক্তির সাথে সাক্ষীর সম্পর্ক-নিহত ব্যক্তির সহিত সম্পর্ক থাকাটা কোন সাক্ষীকে অযোগ্য সাক্ষী বানায় না। [সুরাচরণ সিং (১৯৫৭) পিএলডি এসসি (ইন্ডিয়া) ৫৮] Value of Evidence of closely related to the informant. Merely because PWs are closely related to the informant, in other words, they are related to each other, their evidence cannot be disbelieved if it is found that they are natural and trust worthy witnesses. The State -Vs. Tajel Sheikh @ Md. Tajul Sheikh and others (Criminal) 19 ALR (AD) 87-94 সম্পর্ক-শুধুমাত্র সম্পর্ক থাকাটা কোন সাক্ষীর সাক্ষ্য বাতিল করার কোন কারণ হতে পারে না যদি না এটা দেখানো যায় যে সাক্ষী পক্ষপাতিত্ব প্রবণ এবং তিনি মিথ্যার আশ্রয় নিয়েছেন। [নুরে আলম এবং অন্যান্য বনাম রাষ্ট্র ৫৪ ডিএলআর ২৪২] Statements in FIR which do not come in evidence cannot be used in finding the accused guilty of charge. Self-exculpatory confes- sion of an accused cannot be legally used in finding co-accused guilty as it is no evidence as defined in section 3 of Evidence Act. Moniruddin Sana vs State 40 DLR 402. প্রাসঙ্গিক ঘটনার অস্তিত্ব বিষয়ক সাক্ষ্য-অত্যন্ত গুরুত্বপূর্ণ বিষয় হলো দলিলটি রেজিষ্ট্রি করা হয়েছিলো এবং বিবাদী ইচ্ছা করলে বিক্রয় দলিলের সহিমুহুরী নকল দাখিল করে প্রমাণ করতো পারতো যে এটা জাল। তাহলে মূল দলিলের সাথে সহিমুহুরী নকলের তুলনা করলে এটা বোঝা যেত যে রেজিষ্ট্রেশনের পরে মূল দলিলে কোন পরিবর্তন করা হয়েছিলো কিনা। বাদী আপীলকারী যখন সাক্ষীর ডকে ছিলো তখন দলিল জাল বিষয়ে কোন প্রশ্ন রাখা হয়নি। তিনি ব্যাখ্যা করতে পারতেন কিভাবে এবং কখন Over-writing করা হয়েছে এবং এটা সরল বিশ্বাসে করা হয়েছিলো কিনা [ফতে বনাম বংশিলাল, এআইআর ১৯৭৪ এমপি ১৬; ১৯৭৩ এমপিএলজে ৬১৭; ১৯৭৩ এমপিডাব্লিউএন ৬০৫] কোন সাক্ষ্য যদি প্রাসঙ্গিক হয় তাহলে আইন দ্বারা অস্বীকৃত পাবলিক পলিসির অজুহাতে উক্ত সাক্ষ্য বাদ দেয়া যাবে না। [কাটিকিনেনি ভেনকাটা গোপালা নারাসিম্ব রামা রাও বনাম সিতলুরি ভিকাতারাম্য, ১৯৪০ এআইআর (মাদ্রাজ) ৭৬৮; আইএলআর ১৯৪০ (মাদ্রাজ) ৯৬৯] সাক্ষ্য সম্পর্কে আপত্তি প্রাসঙ্গিকতা সম্পর্কে বা প্রমাণের ধরণ সম্পর্কে কখন আপত্তি উথাপন করা যাবে- আদালত কর্তৃক সাক্ষ্য সম্পর্কে আপত্তি তাৎক্ষণিকভাবে নিষ্পত্তি করা উচিত এবং ভবিষ্যতের জন্য ফেলে রাখা উচিত নয়। [বিন্দেশরী সিং বনাম রাম রাজ সিং, ১৯৩৯ এআইআর (অল) ৬১; ১৭৯ আইসি ৯৭৪; রামুনাজ রাজ, ইত্যাদি বনাম দক্ষিণেশ্বর রায়, ইত্যাদি ৩৯ আইসি ১০১; ১৯২৬ এআইআর (কলকাতা) ৭৫২] Death of a witness after examination-in-chief and before cross-examination When a witness died after he had been examined-in-chief and before his cross examination had been concluded, his evidence was admissible, but the degree of weight to be attached will depend on the circumstances of the case. There is no provision in the Evidence Act that the evidence of witness which is admissible at the time he gave it should become inadmissible for the simple reason that he could not be cross-examined for some unavoidable reason. Chowdhury Mia Vs. Dhanindra Kumar Skil (1993)13BLD(HCD)216 Ref: Davies Vs. Otty(1865)55 E.R.875; W. Strewart Vs. New Zealand Insurance Co. Ltd.(1912)16C.W.N.991=17 IC. 188; Narsing Das Vs. Gokul Prasad, A.I.R.1928 All 140 =50 All.113; Ahmed Ali Vs. Joly Prosad, 1944 All. 188—Cited Amalnama and Dakhila Since the appellate Court did not reverse the finding of the trial Court with regard to the amalnama and dakhila, they stand as evidence of title of the defendants. In this regard the SA record in the name of the defendants is consonant with the amalnama and dakhila, both issued by the landlord. The reasons attributed by the appellate Court for not believing the veracity of the amalnama and dakhilas, namely that they were not registered or written on stamp paper or on printed form, is not tenable, since there is no legal necessity for those documents to be in the form mentioned by the appellate Court. The reasons given by the appellate Court for disbelieving the documents are flimsy and not tenable. Another reason given by the appellate Court for disbelieving those documents is that the name of the witnesses deposing in support of those documents was not mentioned in the plaint. However, such a requirement is not contemplated by Order VI, rule 2 of the Code of Civil Procedure, which does not require the names of witnesses to be specified in the plaint. The observation of the appellate Court is, therefore, contrary to law. [73 DLR (AD) (2021) 124] The plaintiff's claimed that the amalnama and dakhilas, were claimed by them to be forged. But no step was taken by the plaintiffs to prove that those documents were indeed forged. When document is produced by a party to a suit and marked exhibit, especially when a presumption under the Evidence Act is attracted by that document, it is incumbent upon the contesting party to lead evidence in order to substantiate the claim that the document is a forgery or is not genuine. [73 DLR (AD) (2021) 124] The learned Advocate for the respondents submitted that the amalanama is neither a lease nor agreement to lease and therefore need not be registered and is admissible in evidence even though it is not registered. In support of his contention, the learned Advocate referred to Lakshan Chandra Mandal vs Takim Dhali and others, Calcutta Law Journal 90. In this context we are inclined to the view that the amalnama and dakhilas were correctly considered by the trial Court in finding title and possession in favour of the defendants. [73 DLR (AD) (2021) 124] Misreading or Non-reading of Evidence To believe or disbelieve a witness is within the domain of the Courts below and the High Court Division in exercise of its revisional jurisdiction cannot interfere in such domain unless there is misreading or non-reading of evidence on record by the Courts below. The High - Court Division reversed the concurrent findings of facts of the Courts below without pointing out any misreading or non-reading of evidence on record. Having considered the findings of the Courts below, we find that those are based on evidence on record. [73 DLR (AD) 159] Concurrent Findings of Fact In this connection, reliance may be placed on the case of Srimati Bibhabati Devi vs Kumar Ramendra Narayan Roy. 51 CWN 98; (this case is popularly known as Bhawal Sanayasi case). In that cited case, he suit was decreed by the First Additional District Judge, Dhaka, Mr Pannal Lal Bose. It was a very long trial lasting for 608 days. The decree was affirmed by the High Court of Judicature at Fort William, Kalkata. The decree was challenged before the Judicial Committee of Privy Council which also affirmed the decree. In this case the Privy Council has held that to interfere with concurrent findings of fact, there must be some miscarriage of justice or violation of some principles of law or procedure. That miscarriage of justice means such a departure from the rules which permeates all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding is such a question of law. [73 DLR (AD) 255] The Privy Council also held that the practice not to interfere with concurrent findings of fact is not a cast-iron one and there must be cases which will justify departure that there must be cases of such an unusual nature as will constrain the Privy Council to depart from the practice. [73 DLR (AD) 256] In the case of Srinivas Ram Kumar vs Mahabir Prasad, AIR 1951 SC 177 it has been held that when the Courts below have given concurrent findings on pure questions of fact, this Court would not ordinarily interfere with these findings and review the evidence for the third time unless there are exceptional circumstances justifying departure from this normal practice. The position may undoubtedly be different if the inference is one of law from facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure. The practice adopted by this Court is similar to what has always been acted upon by the Judicial Committee. To quote the words of Lord Thankerton in Bibhabati vs Ramendra Narayan, 51 CWN 98: AIR (34) 1947 PC 19 "it is not by any means a cast iron practice"; there may occur cases of unusual nature which might, constrain us to interfere with the concurrent findings of fact to avoid miscarriage of justice. [73 DLR (AD) 256] From the cases cited above, it appears that the principle not to interfere with concurrent findings of fact is not a cast-iron practice and that the High Court Division in appropriate cases may depart from that principle where there is any violation of any rule of law or procedure or where there have been misreading or non consideration of evidence affecting the ultimate decision of the Courts below. [73 DLR (AD) 256] খারাপ চরিত্রের সাক্ষী দ্বৈত বেঞ্চ পর্যবেক্ষণ করেছেন যে এই সাক্ষী কোন কিছু দেখেননি এবং তিনি একজন কূট সাক্ষী ছাড়া কিছুই নন। তিনি খারাপ চরিত্রের অধিকারী কেননা তার বিরুদ্ধে তিনটি ভিন্ন মামলা চলমান আছে- একটি চুরির মামলা, একটি অপহরণের মামলা এবং একটি হত্যা মামলা। এরকম খারাপ চরিত্রের ব্যক্তি যেকোন ব্যক্তির বিরুদ্ধে যা কিছু বলতে পারে। [ ওমপ্রকাশ বনাম স্টেট অব ইউপি, ১৯৮২ অল ডব্লিউ সি ৮৯, ডিবি] Police Witness পুলিশ সাক্ষী-দ্বৈত বেঞ্চ পর্যবেক্ষণ করেছেন যে, অন্যান্য সাক্ষীর মতই পুলিশ সাক্ষীর সাক্ষ্যও মূল্যায়ন করা উচিত ছিলো। সে শুধুমাত্র একজন পুলিশ সাক্ষী বলেই তার সাক্ষ্য বাতিল করা যায় না। [ এম.পি. জয়রাজ বনাম স্টেট অব কর্ণাটক, আই এল আর (১৯৮০) ২ কান্ট ৮২৯; ১৯৮০ ক্রিএলজে, এ আই আর ১৯৭৯ এস সি ১১৭৩] পুলিশ সাক্ষীর সাক্ষ্য বিচার বিশ্লেষণ করে যদি তা বিশ্বাস যোগ্য মনে করেন তবে স্থানীয় সাক্ষী অভিযোগকারী পক্ষের সমর্থনে সাক্ষ্য না দিলেও বা সাক্ষ্য দিলে তা সত্য না হলে পুলিশ সাক্ষীর সাক্ষ্যের উপর নির্ভর করে আসামীকে দোষী সাব্যস্ত করতে আইনতঃ কোন বাধা নেই। Abdul Razzak Talukder vs State, represented by the Deputy Commissioner, Barisal 51 DLR 83. There is no bar to find an accused guilty on the basis of testimonies of police personnels if their testimonies appear to be reliable. Nizam Hazari vs State 53 DLR 475. It is unsafe to base a conviction only put- ting reliance on the evidence of interested official/police witnesses. Non-obtaining the sanction from the appropriate authority in prosecuting the appellant vitiated the order of conviction. Waziullah Bhuiyan alias Khokon Vs The State, 20BLD (HCD)110 Police personnel-Interested witness The public witness did not support the prosecution case and the prosecution failed to come with reasonable explanation as to why they did not support the prosecution case nor there is any enmity with the informant of the instant case. So, the persistent evidence of the public witnesses regarding denial of their presence at the time of alleged recovery in no way can be cured by the official witnesses (police personnel) who are none but interested in the case. Aslam Jahangir Vs. The State, 20BLD (HCD)426 বিরোধীয় সাক্ষী-বোম্বে হাইকোর্ট পর্যবেক্ষণ করেছেন যে দলাদলি থাকলে বা সাক্ষীগণ শত্রু ভাবাপন্ন হলেই তাদের সাক্ষ্য বাতিল করতে হবে আইন এমন নয়। তাদের সাক্ষ্যের গুনাগুন বিবেচনা করতে হবে এবং সতর্কতার সাথে গ্রহণ করতে হবে। [স্টেট অব মহারাষ্ট্র বনাম শ্রী রাম, ১৯৮০ ক্রি এলজে ১৩ (বোম্বে)] Falsus in uno falsus in omibus- Falsus in uno falsus in omibus অর্থাৎ এক জিনিসে মিথ্যা মানে সকল জিনিসেই মিথ্যা মতবাদটি আইনের কোন নিয়ম নয় এবং আমাদের দেশে চৎধপঃরপব এর কোন নিয়মও নয়। [ফুলা বনাম স্টেট অব রাজস্থান, ১৯৭৯ রাজ এলডাব্লিউ ১০৩; ১৯৮০ রাজ ক্রি সি ১৯৩] Falsus in uno falsus in omnibus-এটি আইনের কোন নীতি নয় বরং সতর্কতার নীতি। [নিসার আলী (১৯৫৭) পিএলডি এসসি (ইন্ডিয়া) ২৯৭] Hired Witness Credibility ভাড়া করা সাক্ষী- সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে, বাদীপক্ষের ১৪ নং সাক্ষীর গল্প অবিশ্বাস্য। খুব সম্ভবত ১৪ নং সাক্ষী নির্বাচনের সময় জনাব মোরারকা এর জন্য কাজ করতেন যেটা তাকে জেরার সময় জানা যায়। তাকে একজন ভাড়াটে সাক্ষী বলে মনে হয়। [মেঘরাজ পাতোদিয়া বনাম আর.কে. বিরলা, এ আই আর ১৯৭১ এসসি ১২৯৫; (১৯৭১) ২ এসসিআর ১১৮] Eyewitnesses and Neighbourhood Bias একই বর্ণের প্রতিবেশী সাক্ষী-সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে, হাইকোর্ট এই মত পোষণ করে ভুল করেছেন যে চাক্ষুস সাক্ষীগণ মৃতের বর্ণের হওয়ায় এবং তার আশেপাশে বসবাস করায় তাদের সাক্ষ্য বিশ্বাস করা যাবে না। যারা কোন ঘটনার চাক্ষুস সাক্ষী হিসেবে দাবি করে তাদের সাক্ষ্যকে অবিশ্বাস করার ক্ষেত্রে বর্ণ বা প্রতিবেশিত্ব কোন কারণ হতে পারে না এবং হাইকোর্ট এটা ভেবে ভুল করেছেন যে সেই কারণে তাদের সাক্ষ্যের সমর্থন খোজা জরুরী। [স্টেট অব ইউপি বনাম বাব্বু, এ আই আর ১৯৭৮ এসসি ১০৮৪] Credibility of Weak Witness Testimony দূর্বল সাক্ষী- এটা মৌলিক যে একজন দূর্বল সাক্ষীর সাক্ষ্য একই রকম আরো অনেক সাক্ষী দ্বারা সমর্থন হয়েছে শুধুমাত্র এই কারণে নির্ভরযোগ্য হয় না। সাক্ষ্যের মূল্যায়ন করা হয় সংখ্যা গণনা করা হয় না। [মুলুওয়া বনাম স্টেট অব এম.পি., এ আই আর এসসি ৭৮৯] Injury Description Missing in FIR FIR এ আঘাতের বর্ণনা না থাকা- FIR এ আঘাতের উল্লেখ করতে ব্যর্থ হওয়াটা বিচারের ক্ষেত্রে মারাত্মক এবং পক্ষগণের মধ্যে শত্রুতা আছে-এরূপ সাক্ষ্যের উপর নির্ভর করে দন্ড দেয়া যায় না। [ওয়াহিদ বনাম রাষ্ট্র, ১৯৮০ অল ক্রি আর ২০; ১৯৮০ অল, ক্রি সি ৪০; ১৯৮০ ক্রি এলজে এনওসি ৫১ (অল)] Exclusion of Names in FIR FIR এ নাম বাদ পড়া- ৭ জন ব্যক্তি যাদের নাম FIRএ উল্লেখ করা হয়নি তাদের নাম কেন FIR এ উল্লেখ করতে ব্যর্থ হয়েছেন সে বিষয়ে পিডাব্লিউ-১ ব্যাখ্যা দিতে অক্ষম। তিনি খোলাখুলি বলেছেন যে তিনি বলতে পারবেন না কেন তাদের নাম উল্লেখ করা হয়নি। আমরা মনে করি যে এই ৭ জন ব্যক্তি সন্দেহের সুবিধা পেতে হকদার এবং বেকসুর খালাস দেয়া উচিত। [জুবার সিং বনাম স্টেট অব এম.পি., এআইআর ১৯৮১ এসসি ৩৭৩] FIR এ আসামীর নাম না উল্লেখ করা-যখন তথাকথিত চাক্ষুস সাক্ষী দুর্বৃত্তেকে সনাক্ত করে এবং FIR দায়ের এর পূর্বে এজাহারকারীকে তাদের নাম বলে এবং তারপরও এজাহারকারী FIR এ তাদের নাম উল্লেখ করে না। এরূপ সাক্ষীর সাক্ষ্য অবশ্যই বিবেচনার বাইরে রাখতে হবে। [রাষ্ট বনাম তাজুল ইসলাম ৪৮ ডিএলআর ৩০৫] Photograph A photograph cannot be taken as foundation for deciding a disputed fact- The Appellate Division observed that the findings of the High Court Division basing upon photographs is misconceived one. A photograph cannot be taken as foundation for deciding a disputed fact. So, those in- consistent observations should not allowed remain in the judgment for ends of justice. In view of what stated above, The Appel- late Division expunged the observations made by the High Court Division as quoted above from the judgment. একটি তর্কিত বিষয় বা প্রশ্নের ওপর সিদ্ধান্ত দিতে হলে কোন ফটোগ্রাফকে ভিত্তি হিসেবে ধরে নেয়া যায় না। আপীল বিভাগ লক্ষ্য করেছেন যে, হাইকোর্ট বিভাগের ফটোভিত্তিক সিদ্ধান্তটি সঠিক নয় বিভ্রান্তিকর। একটি তর্কিত বিষয় সন্ধা প্রশ্নের উপর সিদ্ধান্ত দিতে হলে কোন ফটোগ্রাফকে ভিত্তি হিসেবে ধরে নেয়া যায় না। কাজেই ন্যায় বিচারের স্বার্থে রায়ের মধ্যে ঐ সব অসামঞ্জস্যকর সিদ্ধান্ত রাখা ঠিক নয়। অতএব, ওপরে প্রদত্ত আলোচনার প্রেক্ষিতে আপীল বিভাগ হাইকোর্ট বিভাগের উপরোক্ত সিদ্ধান্তটুকু ফটোগ্রাফ বিষয়ে বাদ দেন। Hazi Md. Abul Hashem -Vs.- Bangladesh Represented by the Secretary. Ministry of Cultural Affairs, Bangladesh Secretariat, Ramna, Dhaka and others (Civil) 9 ALR (AD) 104-107 Admissibility of the Document Court of Appeal-If the objection re- lates to the admissibility of the document itself under the law, such an objection is available to the party even at the appellate stage. But an objection that a document, which per se is not inadmissible in evi- dence has been improperly admitted in evi- dence in the trial Court can not be enter- tained for the first time in the Court of Ap- peal. Hajee Abul Hossain and others: -Vs.- Md. Amjad Hossain and others: (Civil) 11 ALR (AD) 24-28 Production of documents by either of the parties to the suit without amending the pleadings is not permissible in law- The High Court Division held that intro- duction of new story by deposition and by production of documents by either of the parties to the suit without amending the pleadings is not permissible in law and is liable to be expunged in view of provisions under Order VI Rule 7 of CPC which fol- lows that matters not specifically raised in pleadings parties cannot be allowed to lead evidence on such matters. Md. Abdus Sobhan. -Vs. Ministry of Finance, Bangladesh Secretariat, Ramna, Dhaka and others. (Spl. Origi- nal) 10 ALR (HCD) 221-224 Production of documents by either of the parties to the suit without amending the pleadings is not permissible in law- The High Court Division held that intro- duction of new story by deposition and by production of documents by either of the parties to the suit without amending the pleadings is not permissible in law and is liable to be expunged in view of provisions under Order VI Rule 7 of CPC which fol- lows that matters not specifically raised in pleadings parties cannot be allowed to lead evidence on such matters. Md. Abdus Sobhan. -Vs. Ministry of Finance, Bangladesh Secretariat, Ramna, Dhaka and others. (Spl. Origi- nal) 10 ALR (HCD) 221-224 There is no authority of law to suggest that if a part of the evidence of a case is disbelieved, the remaining part cannot be believed without independent corroboration, particularly when it supported by the attending circumstances of the case. Hazrat Khan @ Hazrat Ali Khan vs State 54 DLR 636. Although all questions in a civil case are to be determined on preponderance of probability, an allegation of criminal nature in a civil case is to be proved with a higher degree of probability. Islami Bank and others vs Dewan Md Yusuf 55 DLR 624. Evaluation of evidence of witnesses and conclusion from facts–On the face of direct evidence of four eye–witnesses, the High Court Division acted wrongly in acquitting the principal accused by entertaining doubts in mind as to the place, time and occurrence. State vs Mohammad Kha 42 DLR (AD) 192. সাক্ষীর বিশ্বাসযোগ্যতা-হাইকোর্ট বিভাগের বিচারক চাক্ষুস সাক্ষীদের গুরুত্বপূর্ণ বৈষম্য, অসঙ্গতি এবং ফাকফোকর বিবেচনায় আনেননি যার কারণে রায়ে ভুল হয়েছে এবং ফলশ্রুতিতে আপীলকারীগণকে দন্ডপ্রাপ্ত হয়েছে। সাক্ষ্য বিবেচনা করে বিশেষ করে চাক্ষুস সাক্ষীগনের সাক্ষ্য বিবেচনা করে, আপীলকারীগণ সন্দেহের সুবিধা এবং খালাস পাইতে হকদার। [নুরুল ইসলাম বনাম রাষ্ট্র ৪৩ ডিএলআর (এডি) ৬] Unnatural conduct of witnesses Although the absence of any hue and cry by the eye witnesses when the assailants were carrying on their attacks on their preys is un- derstandable, yet the failure of the witnesses to raise hue and cry even after the retreat of the assailants is totally inconsistent with standard reaction of ordinary villagers witnessing a murder. Nowabul Alam and others Vs The State, 15BLD(AD)54 Ref: 15DLR (SC)65; 14DLR(SC)81: A.LR. 1965 (SC)202; 14DLR (SC) 159; PLD 1960 (SC)387; A.LR. 1954 (SC)2; A.LR. 1952(SC)2; 167:A.IR. 1973(SC)1073-Cited Conviction based on the evidence of sole eye-witness When the sole witness Jobura Khatun saw accused Badsha Mia dealing a dao blow on the abdomen of her daughter victim Halima Khatun and accused Badsha Mia dealt her dao blows on the shoulders when she tried to save her daughter and she reported the occurrence to witnesses as soon as they came to the scene of occurrence and her testimony is supported by medical evidence, conviction on the evidence of such a sole eye-witness can safely be based. Mohammad Badsha Miah Vs. The State, 16BLD(AD)283 Discrepancies in the evidence of witnesses. Discrepancies in the evidence of eye- witnesses regarding the details of the incident may occur but that do not belittle their evidence. Eyewitnesses cannot be expected to enumerate photographic picturisation of an attack. In the absence of any evidence of enemity or of any motive, they may be treated as truthful witnesses. Ataur Rahman and others Vs. The State, 14BLD(HCD)391 Moreover, 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 vs State, 43 DLR (AD) 95. [73 DLR (AD) 295] Minor Discrepancies in Testimony Unsophisticated আদিবাসী মহিলা সাক্ষী-সুপ্রিম কোর্ট পর্যবেক্ষণ করেছেন যে, আপীলকারীপক্ষের বিজ্ঞ কৌশলি বাদীপক্ষের ১নং সাক্ষীর সাক্ষ্যে কিছু বৈসাদৃশ্যতা দেখিয়েছেন। আমাদের মতে নির্দেশিত বৈসাদৃশ্যতা ছোটখাটো এবং নামেমাত্র। এটা মনে রাখা দরকার যে ১নং সাক্ষী একজন Unsophisticated আদিবাসী মহিলা সাক্ষী। হাইকোর্ট তার সাক্ষ্য গ্রহণ করে সঠিক কাজ করেছেন। হাইকোর্টের সাথে ভিন্নমত পোষণ করার মত আমরা কোন বৈধ যুক্তি খুজে পাই না। [বেটি পাদিয়া বনাম স্টেট অব উরিষ্যা, এ আই আর ১৯৮১ এসসি ১১৬৩] সামান্য বৈষম্য-প্রভাব-সুপ্রীম কোর্টের সামনে যুক্তি দেখানো হয় যে, চাক্ষুস সাক্ষীর সাক্ষ্য বৈষম্যই ভরপুর এবং প্রকৃতপক্ষে সময়ে সময়ে বাদীপক্ষ কর্তৃক ৩টি ভিন্ন ভিন্ন বর্ণনা রাখা হয়েছে। সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে বিষয়টি বিচারিক আদালত এবং হাইকোর্টের নজরে ছিলো এবং আমরা তাদের সাথে একমত যে বৈষম্য তুলনামূলকভাবে সামান্য প্রকৃতির এবং এগুলোকে অযথা গুরুত্ব দেওয়ার দরকার নেই। [জগদিশ বনাম স্টেট অব এম.পি., এআইআর ১৯৮১ এসসি ১০৬৭] সাক্ষ্যে সামান্য বৈষম্য-সামান্য বৈষম্য বক্তব্যকে অনির্ভরযোগ্য করার তুলনায় বরং সত্যকে নির্দেশ করে। ছোটখাটো বৈষম্য মিথ্যার কোন ইঙ্গিত নয়। [স্টেট অব আসাম বনাম কৃষ্ণ রাও, এআইআর ১৯৭৩ এসসি ২৮; ১৯৭৩ ক্রি এলজে ১৬৯; ১৯৭৩ ক্রি এলআর ৩০৪; ১৯৭৩ এসসিসি (ক্রি) ২২২] অসঙ্গতি এবং বৈষম্য-যখন মারাত্মক-এটা সন্দেহাতীতভাবে সত্য যে বাদীপক্ষের সাক্ষ্যে অসঙ্গতি এবং বৈষম্য বিদ্যমান কিন্তু এটা এমন একটি ত্রুটি যা থেকে কোন ফৌজদারী মামলাই এটা থেকে মুক্ত নয়। কিন্তু দেখার বিষয় হলো যে অসঙ্গতিগুলো বিষয়টির গভীরে প্রবেশ করে কিনা বা এটার তুচ্ছ বিষয়ের সাথে সম্পর্কিত কিনা। এরূপ অসঙ্গতি বিষয়টির গভীরে প্রবেশ করলে আসামীপক্ষ সুবিধা পেতে পারেন কিন্তু তুচ্ছ বিষয়ের সাথে সম্পর্কিত হলে আসামীপক্ষ এরূপ সুযোগ পাবেন না। [কৃষ্ণ পিল্লাই বনাম স্টেট অব কেরালা, এআইআর ১৯৮১ এসসি ১২৩৭] স্বাভাবিক এবং গুরুত্বপূর্ণ বৈষম্য এর সংজ্ঞা-স্বাভাবিক বৈষম্যগুলি হলো পর্যবেক্ষণের স্বাভাবিক ভুল, সময়ের ব্যবধানে স্মৃতির স্বাভাবিক ভুল, মানসিক প্রবণতা যেমন ঘটনার সময়ের ভীতি এবং মানসিক আঘাত ইত্যাদি। গুরুত্বপূর্ণ বৈষম্য হলো এমন বৈষম্য যেগুলি স্বাভাবিক নয় এবং একজন স্বাভাবিক ব্যক্তির নিকট থেকে যেটি প্রত্যাশা করা যায় না। [ স্টেট অব রাজস্থান বনাম কালকি, এআইআর ১৯৮১ এসসি ১৩৯০] সাক্ষ্যের মূল্যায়ন- যদি সময় সম্পর্কে সাক্ষীদের বক্তব্যে গুরুত্বপূর্ণ বা বড় ধরণের বৈষম্য থাকে এবং অন্যান্য অবস্থা দ্বারা প্রমাণিত হয়, তাহলে ঘটনার সময় সন্দেহজনক হয় এবং আদালত বাদীপক্ষের মামলা অস্বীকার করতে পারে। [রাষ্ট্র বনাম আব্দুস সাত্তার ৪৩ ডিএলআর (এডি) ৪৪] যেখানে সাক্ষী প্রকৃতপক্ষে তার পূর্বের বক্তব্যের উৎকর্ষ সাধন করে-সাক্ষী প্রকৃতপক্ষে আপীলকারীকে জড়িত করার জন্য তার পূর্বের বক্তব্যের উৎকর্ষ সাধন করেছে। সিদ্ধান্ত হয় যে, সাক্ষীর সাক্ষ্য সম্পূর্ণভাবে বাতিল করা উচিত ছিলো। [রানধির সিং বনাম রাষ্ট্র, ১৯৮০ ক্রি এলজে ১৩৯৭ ডেল (ডিবি)] Rural Witnesses and Testimony Discrepancies গ্রামবাসী সাক্ষী-এটা একটি সাধারণ গ্রাউন্ড যে গ্রামবাসী কোন একটি ঘটনার সাথে নিজেদেরকে জড়ানোর ক্ষেত্রে উদাসীন হয় বিশেষ করে যখন আসামীরা হিংস্র প্রকৃতির হয়। অধিকন্তু স্বাধীন সাক্ষীগণকে পরীক্ষা করা হয়েছে এবং বাদীপক্ষ সন্তোষজনকভাবে মামলা প্রমাণ করতে সক্ষম হয়েছে। কিন্তু ১নং সাক্ষীর সাক্ষ্যে একটি ত্রুটি হলো যে তিনি এফআইআর এ উল্লেখ করেননি যে তিনি তার মাতা শ্রীমতি ঝাব্বুকে হত্যার ঘটনাকে নিজ চোখে দেখেছেন কিন্তু তিনি তার সাক্ষ্যে উল্লেখ করেছেন যে তিনি ২০-২৫ কদম দুর হতে তার মাতাকে খুন হতে দেখেছেন। সাক্ষ্যের এই অংশটুকু ১নং সাক্ষীর এফআইআর এর গল্পের পরিবর্ধন এবং বিচারিক আদালত কর্তৃক সঠিকভাবে বাতিল করা হয়েছে। হাইকোর্ট গল্পের এই অংশটুকু না গ্রহণ করে সঠিক করেছেন কিন্তু এটার অর্থ এই নয় যে ১নং সাক্ষীর পুরো সাক্ষ্যই বাতিল করা উচিত। [স্টেট অব ইউ.পি. বনাম লাল্লা সিং, এ আই আর ১৯৭৮ এসসি ৩৬৮; ১৯৭৮ ক্রি এলজে ৩৫৯; ১৯৭৭ ক্রি এলজে এলআর (এসসি) ৫২৯; ১৯৭৮ এসসি ক্রি আর ৪৬] Chance Witness Testimony দৈবক্রমে সাক্ষী-সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে ঘটনার সময় ও স্থানে বাদীপক্ষের ৪ ও ৫নং সাক্ষীর উপস্থিতি সম্পর্কে বিচারিক আদালত গুরুত্বর সন্দেহ পোষণ করেছেন। যদি কোন ব্যক্তি দৈবক্রমে কোন ঘটনা ঘটার সময় সেখানে উপস্থিত হয় তাহলে সেই ব্যক্তিকে দৈবক্রমে সাক্ষী বলা হয়। যদি উক্ত সাক্ষী ভিকটিমের বন্ধু বা আত্মীয় হয় বা আসামীর বিরুদ্ধে সাক্ষী দেয় তাহলে এরূপ সাক্ষী দৈবক্রমে সাক্ষী হওয়ায় তার সাক্ষ্যকে সন্দেহের চোখে দেখা হয়। এরূপ সাক্ষ্য অবিশ^াস্য নয় কিন্তু এরূপ সাক্ষ্যকে অতি সাবধানতার সাথে নিরীক্ষা করতে হবে। [বাহল সিং বনাম স্টেট অব হরিয়ানা, এ আই আর ১৯৭৬ এসসি ২০৩২] দৈবক্রমে সাক্ষী-দৈবক্রমে বা হঠাৎ তাকে ঘটনাস্থলে পাওয়া যায় ঠিক সেই সম্য়ই অপরাধ সংঘটিত হয়। তার সাক্ষ্য সরাসরি বাতিল করার দরকার নেই, কিন্তু তার সাক্ষ্যকে অতি সাবধাণতার সাথে বিবেচনা করতে হবে এবং সন্দেহের সাথে দেখা যেতে পারে যদি সাক্ষী পক্ষপাতিত্ব হয় বা আসামীর প্রতি শত্রুতামূলকভাবে সাক্ষ্য দেয়। [রাষ্ট্র বনাম মোঃ শফিকুল ইসলাম ৪৩ ডিএলআর (এডি) ৯২] Chance Witness- A chance witness is one who claims to be present at the place of the occurrence at a time when he is not normally expected to be there. The evidence of a chance witness is a weak type of evidence and is not considered worthy in coming to a decision in a Criminal Case. Jharna Begum Vs. The State (Criminal), 2 ALR (2013)-HCD-43. Injured Witness আহত সাক্ষী-সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে ঘটনাস্থলে যে সাক্ষী গুরুত্বর আহত হয়েছেন ঘটনাস্থলে তার উপস্থিতি সন্দেহ করা যায় না। এটা গ্রহণ করা যায় না যে তাদের শরীরে যে আঘাত রয়েছে তা তাদের নিজেদেরই তৈরী। [নান্দ সিং বনাম স্টেট অব পাঞ্জাব, এ আই আর ১৯৮০ এসসি ২১২৮; ১৯৮০ ক্রি এলজে ১৪৭৮; ১৯৮০ ক্রি এলআর (এসসি) ৬৫৮] আহত ব্যক্তির সাক্ষ্য-আহত ব্যক্তির সাক্ষ্য অধিক গুরুত্ব বহন করে কারণ আহত ব্যক্তি সাধারণত আসল অপরাধীকে নিষ্কৃতি দেয় না এবং মিথ্যাভাবে নিরাপরাধ ব্যক্তিকে জড়িত করে না। [আতাউর রহমান বনাম রাষ্ট্র ৪৩ ডিএলআর ৮৭] আহত ব্যক্তির সাক্ষ্য- এটা প্রতিষ্ঠিত নীতি যে যখন আহত ব্যক্তি আক্রমণকারীকে সনাক্ত করে তখন এটা বলা যায় না যে তিনি আসল অপরাধীকে বাদ দিবেন এবং এমন এক ব্যক্তিকে মিথ্যাভাবে মামলায় জড়াবেন যার সাথে কোন শত্রুতা নেই। [আতাউর রহমান বনাম রাষ্ট্র ৪৩ ডিএলআর ৮৭] Under section 118 of the Evidence Act the victim of a sexual offence is a competent witness in the case and she is entitled to re- ceive the same weight as is attached to an injured person in a case of physical violence. Once the Court is satisfied that the evidence of the prosecutrix is trustworthy and it does not suffer from any basic infirmity, her evi- dence can safely be relied upon for convict- ing the accused without any corroboration to her evidence-Evidence Act, 1872, S.118 Jahatigir Hossain Vs. The State, 16BLD(HCD) 238 Ref: (1960) 12 DLR (SC) 165: (1967)19 DLR (SC) 259,13 BLD(AD)79; 1952 SCR 377: A.LR. 1983(SC)753; A.LR. 1980 (SC)) 658; 47 DLR 54: 15 BLD 34 Cited When the injured witness marked the assailant, it is inconceivable that he would give up the real assailant and falsely implicate per- sons with whom he has no enmity. Ataur Rahman and others Vs. The State, 14BLD(HCD)391 Ref: 37 DLR 157 Cited In the case of State vs Azharul Islam, 2011 (19) BLT (AD) 166 this Division held: "Injured witnesses' evidence carries much weight and since there is no contradiction in his as well as in his statement given to the Magistrate and also to the investigating officer as to the material particulars and regarding the nature of injuries as inflicted upon the victim is consistent with the medical report". [73 DLR (AD) 295] In the case of State of Uttar Pradesh vs Naresh, (2011) SCC 324 it has been observed by the Supreme Court of India that: "The evidence of an injured witness must be given due weightage because such witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence." [73 DLR (AD) 295] Taught Witness Testimonies শেখানো সাক্ষী-কলকাতা হাইকোর্টের বিশেষ বেঞ্চ পর্যবেক্ষণ করেছেন যে শেখানো সাক্ষীগণের সাক্ষ্যকে বিশ্বাস করা খুব ঝুকিপূর্ণ। [সুব্রত কুমার বনাম দিপ্তি ব্যানার্জি, এ আই আর ১৯৭৪ ক্যাল ৬১, এ.বি.] দূরবর্তী এলাকার সাক্ষী- এলাহাবাদ হাইকোর্টের দ্বৈত বেঞ্চ পর্যবেক্ষণ করেছেন যে, শ্রীমতি পিয়ারা ভুঝৈন এর বাড়ির আশেপাশে আরো অনেক বাড়িঘর রয়েছে। ঐ সকল বাড়ির বাসিন্দাদের মধ্য থেকে কোন স্বাধীন সাক্ষী খুজের পেতে বাদীর ব্যর্থ হওয়া এটা নির্দেশ করে যে, সম্ভবত গ্রামের কোন স্বাধীন সাক্ষীই বাদীর মামলাকে সমর্থন করার জন্য প্রস্তুত ছিলো না। কারণ মামলাটি একটি বানোয়াট মামলা। [জাগদিও সিং বনাম রাষ্ট্র, ১৯৭৯ ক্রিএলজে ২৩৬; ১৯৭৯ অল ক্রি আর ৩৭৭] Delayed Witness Examination ঘটনার ১৭ মাস পরে পরীক্ষিত সাক্ষী- ঘটনা ঘটেছিলো ১৯৭৩ সালের ৪ আগস্ট এবং রিশাম সিং (পি ডাব্লিউ ২) ও বচন সিং (পি ডাব্লিউ ৩) ১৯৭৪ সালের ডিসেম্বর মাসের ২৭ তারিখে বিচারের সময় পরীক্ষা করা হয়েছিলো অর্থাৎ ঘটনার ১৭ মাস পরে। সহায়ক ঘটনার বিষয়ে বা বিস্তারিত বর্ণনার বিষয়ে এরূপ বৈষম্য সত্য সাক্ষীর জবানবন্দিতেও দেখা যায় বিশেষ করে যখন ঘটনার অনেক পরে তাদেরকে পরীক্ষা করা হয়। এরূপ বৈষম্য কোন সাক্ষীর সাক্ষ্য বাতিল করার ক্ষেত্রে কোন ভিত্তি হতে পারে না বললেই চলে বিশেষ করে যখন বাদীপক্ষের মামলার ভিত্তি সম্পর্কে একটি সাধারণ মতাকৈ এবং সামঞ্জস্যতা থাকে। [স্টেট অব পাঞ্জাব বনাম ওয়াসান সিং, এ আই আর ১৯৮১ এসসি ৬৯৭] Declaratory Suits and Section 145 CrPC জবানবন্দির সহিমুহুরী নকল- ফৌজদারী কার্যবিধির ১৪৫ ধারার কার্যধারায় একজন সাক্ষীকে পরীক্ষা করা হলে উক্ত সাক্ষীর জবানবন্দির সহিমুহুরী নকল ঘোষণামূলক মোকদ্দমার কার্যধারায় প্রাসঙ্গিক নয় যদি না তাকে উক্ত মোকদ্দমায় সাক্ষী হিসেবে পরীক্ষা করা হয়। [সাধু সিং বনাম রামেশ^র সিং, ১৯৮১ বিএলজে ৬৪৬] Rural Witness পুলিশ দ্বারা প্রভাবিত গ্রাম্য সাক্ষী-সুপ্রীম কোর্ট পর্যবেক্ষণ করেছেন যে- আসামী এই কারণে সাক্ষীর বিশ্বাসযোগ্যতা চ্যালেঞ্জ করেছেন যে সে তাদের শস্য চুরি করছিলো এবং তাদের দ্বারা ভৎসর্না করার কারণে সে তাদের বিরদ্ধে সাক্ষী দিচ্ছে। কিন্তু আসামী এবং সাক্ষীর মধ্যে কোন শত্রুতা আছে এমন বিষয়ে কোন সাক্ষ্য উপস্থাপন করা হয়নি। বিচারিক আদালত সাক্ষীর সাক্ষ্যকে এই কারণে বাতিল করেছেন যে রামোশী গ্রাম হওয়ার কারণে সে পুলিশের প্রভাবে ছিলো। তার সাক্ষ্যকে বাতিল করার জন্য এটা কোন কারণ হতে পারে না। হাইকোর্ট তার সাক্ষ্য গ্রহণ করেছেন এবং হাইকোর্টের মতের সাথে ভিন্নমত পোষণ করার কোন কারণ দেখছি না। [এস.জি. মোহিত বনাম স্টেট অব মহারাষ্ট্র, এআইআর ১৯৭৩ এসসি ৫৫; ১৯৭৩ ক্রি এলজে ১৫৯] Interested Witness Testimony আগ্রহী সাক্ষী-সাক্ষ্যের সমর্থন প্রয়োজন। [মঙ্গল সিং (১৯৫৭) পিএলডি এসসি (ইন্ডিয়া) ১৭৯] Value of evidence of the interested witnesses. The Appellate Division observed that the evidence of the interested and partisan witnesses should not be discarded for the reason only that they are partisan and interested witnesses if their credibility is not shaken by the defence. In the present case the P.Ws.2 to 8 though have been blamed to be interested and partisan witnesses by the defence but by cross- examining these witnesses at length the defence could not shake their varacity or make their evidence false or unbelievable. It is now settled by the decisions of the apex courts that the evidence of partisan witnesses need not always be discarded only for the reason of their relationship, when their evidence are found to be reliable that can be basis for convicting the accused. [ স্বার্থ সংশ্লিষ্ট ও দলীয় সাক্ষীর প্রদত্ত সাক্ষ্য অগ্রাহ্য করা যায় না কেবলমাত্র এই অজুহাতে যে, তারা স্বার্থসংশ্লিষ্ট ও দলীয় সাক্ষী বিশেষ করে যেখানে তাদেও প্রদত্ত সাক্ষ্য অপর পক্ষ কর্তৃক খন্ডন করা সম্ভব হয় নি। বর্তমান মামলায় বাদী পক্ষের ২-৮ নং সাক্ষীকে উবভবহপব পক্ষ স্বার্থসংশ্লিষ্ট ও দলীয় লোক বলে দাবী করলেও জেরায় উবভবহপব পক্ষ ঐ সব সাক্ষীর প্রদত্ত সাক্ষ্যকে খন্ডন করতে পারেনি কিংবা তাদেও প্রদত্ত সাক্ষ্য মিথ্যা কিংবা অবিশ্বাসযোগ্য তা প্রমান করতে পারেননি। এখন তাই "Apex Court"-এর সিদ্ধান্তে এটি প্রমানিত সত্য যে, একমাত্র বা কেবলমাত্র পরস্পর আত্মীয় বা সম্পর্কযুক্ত হওয়ার কারণে দলীয় সাক্ষীদের প্রদত্ত সাক্ষ্যকে অগ্রাহ্য করা যাবেনা বিবেচনা করে যখন দেখা যাবে যে, তাদেও সাক্ষ্য বিশ্বাসযোগ্য এবং সেটিতে আসামীকে দন্ডদানের পক্ষে ভিত্তি হিসেবে কাজ করছে।] Shafiul Azam Dafader-Vs.-The State 6 ALR (AD) 2015 (2)224 আগ্রহী সাক্ষী-পুলিশ এজাহারকারীর অসমর্থিত সাক্ষ্যের উপর নির্ভর করে দন্ড দেয়া যায় না। কারণ তিনি চরমভাবে মামলার ফলাফলের ব্যাপারে আগ্রহী। [মতি মিয়া বনাম রাষ্ট্র ৪৪ ডিএলআর ৫৫৪] আগ্রহী সাক্ষী-আগ্রহী সাক্ষীর সাক্ষ্য অবশ্যই খুব সুক্ষ্মভাবে বিশ্লেষণ করতে হবে। আক্ষরিক অর্থে তাদের সাক্ষ্য গ্রহণ করা যাবে না। তারা আগ্রহী সাক্ষী বলেই তাদের সাক্ষ্য সরাসরি বাতিল করা যাবে না। [নওয়াবুল আলম এবং অন্যান্য বনাম রাষ্ট্র ৪৫ ডিএলআর (এডি) ১৪০] আগ্রহী সাক্ষী-অত্র মামলায় যেখানে পক্ষগণের মধ্যে তিক্ত শত্রুতার বিষয়টি স্বীকৃত, সেখানে বিচক্ষণতার নীতি হিসেবে আগ্রহী সাক্ষীর সাক্ষ্যে কিছু সমর্থন প্রয়োজন। [আব্দুল কাদের ওরফে কাদু এবং অন্যান্য বনাম রাষ্ট্র ৪৯ ডিএলআর ৫৭৭] আগ্রহী সাক্ষী-আদালতের উচিত হয়নি সাক্ষীর সাক্ষ্য শুধুমাত্র এই ভিত্তিতে বাতিল করা যে তারা নিরপেক্ষ সাক্ষী নয় যখন তাদের জবানবন্দিকে আসামী কর্তৃক জেরার দ্বারা দূর্বল করা যায়নি। [সামাদ শিকদার ওরফে সোমেদ শিকদার বনাম রাষ্ট্র ৫০ ডিএলআর (এডি) ২৪] The evidence of interested and partisan witnesses must be closely scrutinized before it is accepted. It should not be accepted on its face value. Their evidence has to cross the hurdle of critical appreciation. As their evidence cannot be thrown out mechanically, so also their evidence cannot be accepted me chanically without critical examination. The rule that the evidence of interested witnesses requires corroboration is not an in- flexible one. It is a rule of caution rather than a rule of law. When both the parties are equally power- ful and divided in two hostile groups, at the present day nobody likes to involve himself in group rivalry between two strong factions of people. In such a case, it is indeed difficult for the prosecution to examine independent wit- nesses as the villagers would be reluctant to side with any of the rival groups-Evidence Act, 1872, S.5 Nowabul Alam and others Vs. The State, 15BLD(AD)54) Interested witnesses Police personnels conducting the search and seizure are interested witnesses and as such the evidence of impartial and independent witnesses is necessary at least to lend corroboration to the evidence of the police personnels regarding search and seizure of incriminating articles. Habibur Rahman alias Jane Alam Vs. The State, 15BLD(HCD)129 Interested Witness Police personnels conducting the search and seizure are interested witnesses and as such independent corroboration to their evidence is necessary. Habibur Rahman alias Jane Alam Vs. The State, 15BLD(HCD)129 Interested and Partisan witnesses Where witnesses are related, partisan and interested in the prosecution case in the wake of enmity and litigations between the parties, the evidence of such witnesses requires corroboration from independent sources before it can be safely acted upon. This is not a rule of law but a rule of prudence usually adhered to by Courts. In such a case, the Court is required to take due care and caution in the assessment of evidence. The State Vs. Khalilur Rahman, 15BLD (HCD) 315 Interested and Partisan Witnesses Where bitter enmity is admitted between the parties, the rule of prudence requires that there must be some sort of corroboration of the evidence of interested and partisan witnesses. Fazlul Haq Sikder Vs. The State, 15BLD (HCD) 364 Public Policy and Evidence Act ফৌজদারী কার্যবিধির বিধান দ্বারা প্রাসঙ্গিকতা ক্ষতিগ্রস্থ হবে না- পাবলিক পলিসির বিবেচনা করা আইন দ্বারা স্বীকৃত নয়- যদি ফৌজদারী কার্যবিধিতে সুনির্দিষ্টভাবে বলা না থাকে তাহলে কার্যবিধির কোন বিধান দ্বারা সাক্ষ্য আইনের সাক্ষ্যের প্রাসঙ্গিকতা বিষয়ক বিধান প্রভাবিত হবে না। [কাম নারেশ বনাম ই. ১৯৩৯ এআইআর (অল) ২৪২] Evaluation of Evidence আপীল বিভাগ কর্তৃক সাক্ষ্যের মূল্যায়ন-সাক্ষ্যের মূল্যায়নের ক্ষেত্রে বিচারিক আদালতের মতকে বেশি গুরুত্ব দেওয়া হয় এবং যখন আপীল আদালত কর্তৃক সাক্ষ্যের পূণর্মূল্যায়ন করে বিচারিক আদালতের সিদ্ধান্ত গ্রহণ করা হয় তখন আপীল বিভাগ উক্ত সিদ্ধান্তে হস্তক্ষেপ করতে পছন্দ করেন না। কিন্তু সাক্ষ্য গ্রহণকালে এটা প্রতীয়মান হয় যে সাক্ষ্য মূল্যায়নের প্রতিষ্ঠিত নীতি অনুসরণ করা হয় নি, তখন আপীল আদালতের সিদ্ধান্ত সঠিক হিসেবে দাবি করা যায় না। [আবু তাহের চৌধুরী বনাম রাষ্ট্র ৪২ ডিএলআর (এডি) ২৫৩] সাক্ষ্যের মৌলিক বিষয়ে ঐক্যমত-পর্যবেক্ষণ, উপলব্ধি এবং মনে রাখার বিষয়ে বিভিন্ন সাক্ষী একে অন্যের সাথে ভিন্ন মত পোষণ করেন। কাজেই যাদের সাক্ষ্যের মৌলিক বিষয়ে ঐক্য আছে তাদের সাক্ষ্যকে গুরুত্ব দিতে হবে। যথার্থতা এবং সামঞ্জস্যতার বিষয়ে গ্রাম্য সাক্ষীর সাথে শহুরে সাক্ষীর মানের তুলনা করা উচিত নয়। [আতাউর রহমান বনাম রাষ্ট্র ৪৩ ডিএলআর ৮৭] There cannot be any bar for a person to witness an occurrence and give evidence merely because the accused has brought the case against that person-His evidence is to be tested, scrutinized and assessed along with all other evidence and circumstances. Shah Alam vs State 42 DLR (AD) 31. Examination and cross-examination of witnesses-Appreciation of evidence The proper procedure for appreciation of the evidence is to evaluate the evidence of a witness in its entirety and not to bank on a particular portion of it. The evidence of a witness in his cross-examination is as good as that of his examination-in-chief and it demands due attention of the Court. Any finding based on the examination-in-chief of a witness ignoring his cross-examination must be held to be no proper appreciation of evidence in the eye of law Tamal Biswas Vs. The State, 20BLD (HCD)322 Conduct of Witness সাক্ষীর আচার আচরণ-আপীল আদালত কর্তৃক সাক্ষীর আচার আচরণ বিষয়ক বিচারিক আদালতের পর্যবেক্ষণকে হালকাভাবে খারিজ করা উচিত নয় যদি না তাদের সাক্ষ্যে স্বাভাবিক দূর্বলতা এবং স্পষ্ট বৈষম্য না থাকে। [আব্দুল হাই শিকদার বনাম রাষ্ট্র ৪৩ ডিএলআর (এডি) ৯৫] সাক্ষীর আচার আচরণ-যখন কোন একটি বিষয়ের সিদ্ধান্ত সাক্ষীর আচার আচরণের মূল্যায়নসহ সাক্ষ্যের বিশ্যাসযোগ্যতার উপর ভিত্তি করে নেয়া হয় তখন বিচারিক আদালতের অভিমত অনেক গুরুত্ব বহন করতে অধিকারী। [রাষ্ট্র বনাম এম এম রফিকুল হায়দার ৪৫ ডিএলআর (এডি) ১৩] Witness Suggestions সাক্ষীর সাজেশন-এটা প্রতিষ্ঠিত যে আসামী কর্তৃক বাদীপক্ষের সাক্ষীকে প্রদত্ত সাজেশন দ্বারা বাদীপক্ষের মামলা প্রমাণিত হয় না। আদালত বাদীপক্ষের সুবিধাজনক বিষয়গুলি গ্রহণ করত: সাজেশনের আসল উদ্দেশ্য উপেক্ষা করতে পারেন না। [নওয়াবুল আলম এবং অন্যান্য বনাম রাষ্ট্র ৪৫ ডিএলআর (এডি) ১৪০] False Testimony মিথ্যা সাক্ষ্য-যদি মিথ্যার এমন মিশ্রণ থাকে যে উক্ত মিথ্যা থেকে সত্য বের করা অসম্ভব হয় তাহলে সাক্ষীর এরূপ সাক্ষ্যকে অবশ্যই সম্পূর্ণভাবে বাতিল করতে হবে। [বজলু তালুকদার এবং অন্য দুইজন বনাম ডেপুটি কমিশনার, মাদারীপুর ৪৮ ডিএলআর ৫০৯] সাক্ষ্যের কোন অংশ মিথ্যা মানে পুরোটাই মিথ্যা-এটা দুর্ভাগ্যজনক যে পিডাব্লিউ-০১ এর লুঙ্গি জব্দ না করার কারণে এই সাক্ষীর এবং অন্যান্য সাক্ষীর সন্দেহাতীত সাক্ষ্য যারা তাদের সাক্ষ্যে পিডাব্লিউ-০১ এর ঘটনাস্থলে উপস্থিত থাকার বিষয়টি বলেছেন তাদের সাক্ষ্য বাতিল করা হয়েছে। ‘সাক্ষ্যের কোন অংশ মিথ্যা মানে পুরোটাই মিথ্যা’ এই মতবাদটি বর্তমান সময়ে প্রাসঙ্গিক নয়। [মাহমুদুল ইসলাম ওরফে রতন বনাম রাষ্ট্র ৫৩ ডিএলআর (এডি) ১] Bias Witness বিদ্বেষপূর্ণ সাক্ষী-যখন সাক্ষীর আসামীর বিরুদ্ধে বিদ্বেষ থাকে উক্ত সাক্ষীর সাক্ষ্য জোরালো সমর্থন ব্যতীত গ্রহণ করা যায় না। [রাষ্ট্র বনাম রইসুদ্দিন এবং অন্যান্য ৪৮ ডিএলআর ৫১৭] Seizure List Witness জব্দ তালিকার সাক্ষী- এমনকি জব্দ তালিকার সাক্ষীকে পরীক্ষা না করা বা যদি জব্দ তালিকার সাক্ষী বাদীপক্ষের অনুুকুলে কথা না বলে তাহলে শুধুমাত্র এই কারণে দন্ড বাতিল করা যায় না। [মোশফিকুল ইসলাম ওরফে বিলু বনাম রাষ্ট্র ৫২ ডিএলআর ৫৯৩] Enmity Between Parties পক্ষগণের মধ্যকার শত্রুতা-পক্ষগণের মধ্যে শত্রুতা বিদ্যমান থাকায় এজাহারকারীর অসমর্থিত সাক্ষ্যের উপর নির্ভর করা নিরাপদ নয়। [আলতাফ হোসেন এবং অন্যান্য বনাম রাষ্ট্র ৫৪ ডিএলআর ৪৬৪] Power to Examine and Re-examine Witnesses Under Section 540 Cr.P.C. the Sessions Judge or any Court has the power to examine or re-examine a witness at any stage of the proceeding if the evidence of such a witness appears to him essential for just decision in the case. Md Abdul Khaleque Biswas and another Vs. The State, 16BLD(AD)108 Number of Witness Though it provides that no particular number of witnesses is required for proving any fact still then for convicting an accused solely on the basis of the evidence of the police personnels the Judge must ensure that their evidence is unimpeachable and un- shakeable in character and the public wit- nesses attending the search and seizure are unworthy of credit-Evidence Act, 1872, S. 134 Talebur Rahman alias Taleb Vs. The State, 16BLD(HCD) 86 Ref: 8BLD 106; 21 DLR 684; 44 DLR 159-Cited Solitary witness in a murder case Conviction on the evidence of a solitary witness in a case involving death sentence is unsafe. In such a case the evidence of a solitary witness requires corroboration. The State Vs. Manjur, 15BLD(HCD) 193 Number of witness It provides that no particular number of witnesses is necessary to prove any fact. Conviction can be based on the evidence of a solitary witness if it is free from all taints and it does not suffer from any infirmity. In the instant case, the evidence of the only witness seeing the infliction of the fatal blow on the neck of the victim suffers from infirmities and persons present in the vicinity do not support him in so far as it relates to the infliction of the fatal injury, it is highly unsafe to base conviction on his evidence. Discrepancy in the medical evidence makes the prosecution case all the more doubtful-Evidence Act, 1872; S. 134 The State Vs. Munshi Miah, 15BLD (HCD) 139 Ref: 29 (AD) 21 1-Cited There is no hard and fast rule to examine innumerable number of witnesses to prove a charge. The prosecution examines those witnesses whose deposition is relevant to prove a charge. The Appellate Division has thoroughly assessed the evidence of the witnesses both oral and documentary and found the petitioner guilty of the charge by majority. As regards non-examination of documents, those were not at all relevant for resolving the point in controversy. Other points raised by the learned counsel have already been answered in the appeal, and therefore, there is no scope for reconsideration of those facts. Allama Delwar Hossain Sayedee Vs. The Chief Prosecution (ICT) (Criminal) 16 ALR (AD) 206-208 Credibility of witness in a criminal case In a criminal case the credibility, the character and the conduct of a witness are relevant and these should be considered before accepting his evidence as worthy of credence. Hemayet uddin alias Aurunga Vs. The State, 16BLD(HCD)558 Credibility of a witness The credibility of a witness depends upon his knowledge of facts to which he testified, his disinterestedness, integrity and veracity. When a witness is found to be trustworthy. straight forward and reliable and his evidence intrinsically rings true, his evidence can be safely relied upon. Dalim and another Vs. The State, 15 BLD(HCD) 133 Credibility of witnesses When the alleged eye witnesses disclosed the names of the miscreants to the informant before lodging the F.I.R. and still then the informant does not mention in the F.I.R. the names of such witnesses and the miscreants. the evidence of these witnesses must be left out of consideration. The State Vs. Tajul Islam and others, 15BLD(HCD) 53 Credibility of a witness The credit to be given to the evidence of a witness is a matter which is not governed by rule of law. It depends upon his knowledge of facts to which he testified, his disinterestedness, integrity and veracity. In judging the credibility of a witness the Court has to consider the surrounding circumstances as well as the broad probabilities. When a witness is found to be trustworthy, straight forward and reliable and his evidence intrinsically rings true, the evidence of such a witness can be safely relied upon. Daliin and another Vs. The State,15BLD(HCD)133 Independent witness When enmity is admitted between the parties and the witnesses and the prosecution case depends solely on a dying declaration, the court has to insist on corroboration of the prosecution case by independent evidence. Md. AbulKhashem Vs. The State, 15BLD(HCD) 205 Re-calling of witnesses From the conduct of the learned Advocate representing the accused-appellant's in the court below is full of negligence and that as he was not only absent in the Court on 25.10.99, the day on which the P.W.I was examined. But on 3.1.2000 when his petition for recalling the said witness was taken up he merrily remained absent in the Court and thus allowed the application to be rejected on the ground that the engaged lawyer found absent on call. For the ends of justice a chance may be given to the accused appellants to get cross examination of the witnesses examined by the prosecution. Shamsul Hoque Ladu & anr. Vs. The State, 20BLD (HCD) 531 Witness Re-calling witness Section 540 Cr.P.C is expressed in the widest possible term and it has not been in- tended to limit its application to court witness only-The power is available to the Court- "if his evidence appears to be essential to the just decision of the case"-Cr.P.C S. 540 Hemayat uddin alias Auranga Vs. The State, 14BLD(AD)9 Expunction of Evidence Once a witness has deposed in the Court, his deposition has to remain on record for whatever it is and there is no law for expunction of his evidence at the instance of the prosecution. Md. Mainuddin Howlader Vs. The State, 14BLD(HCD)82 Conclusive Proof The law does not require conclusive proof; but only proof beyond reasonable doubt. The Appellate Division observed that the evidence of the witnesses relied on by the learned Sessions Judge has been established beyond the shadow of doubt that the convicts Fazlur Rahman Badal and Tutul are the perpetrators of the crime. In spite of such evidence being on record the High Court Division has entertained imaginary doubts and concluded that 'evidences are dubious and as such, the guilt of the accused are not conclusively proved'. The High Court Division overlooked that the law does not require conclusive proof; but only proof beyond reasonable doubt. Fazlur Rahman Badal and Monir Hossain Tutul. State -Vs.- Fazlur Rahman alias Badal (Criminal) 16 ALR (AD) 19-29 Partial Acceptance of Evidence There is no authority of law to suggest that if a part of the evidence of a case is disbelieved, the remaining part cannot be believed without independent corroboration, particularly when it is supported by the attending circums¬tances of the case. Hazrat Khan @ Hazrat Ali Khan vs State 54 DLR 636. Confessions of co-accused cannot be the substantive piece of evidence; it can only be used to confirm the conclusion drawn from other evidences. This Death reference under Section 374 of the Code of Criminal Procedure has been made by learned Judge of Druto Bichar Tribunal, Sylhet for confirmation of death sentences of condemned-prisoners. The High Court Division of the view that the impugned judgment and order of conviction and sentence suffers from no legal infirmities and the sentence of imprisonment for life will meet the ends of justice instead of death. State Vs. Sujon Deb and others (Criminal), 18 MLR (2013)-HCD-81. The confessional statement of a co-accused is much weaker than that evidence of an approve which fulfills all the three ingredients of evidence. Alam @ Md. Alam & Ors Vs. The State (Criminal), 33 BLD (2013)-HCD-162. The confession of an accused recorded under section 164 Cr.P.C. being a matter of serious consideration at the trial of a murder case, the Public Prosecutor acted in an irresponsible and negligent manner in not utilisilig the same. The learned Judge was also wrong in hastily rejecting the prosecution's prayer for examining the Magistrate. Mosammat Amena Khatun Vs. The State and others, 14BLD(HCD) 332 To be the basis of conviction a confession must be voluntary and true and it must also be inculpatory in nature. A retracted confession requires independent and reliable corroboration before it is accepted and acted upon. Confession of a co-accused is no evidence against other accused persons. It may, however, lend assurance to other evidence- Evidence Act 1872, Ss. 24.30.Dula Miah alia s Nurul Islam and others Vs. The State, 14BLD(HCD)477 Ref: 27 DLR(AD)29; 44DLR(AD) 10, I.L.R. Indian Appeals 147; 12 DLR(SC) 156; 12DLR(SC)217; 36 DLR 185; 16 DLR 147; 45DLR 171; A.LR. 1939 (PC) 47; 25 DLR 399; A.I.R. 1957(SC) 107;6BLD(AD)1-Cited Section 30 of the Evidence Act provides that the confession of a co-accused can be taken into consideration along with other evidence but it does not say that such a confession amounts to proof. In the absence of any substantive evidence on record, either direct or circumstantial, implicating the appellant in the alleged offence, the confessional state- ment of a co-accused can never be treated as a substantive evidence and no conviction can be based on such confessional statement. Evidence Act, 1872 (I of 1872), Section-30 Ustar Ali Vs. The State, 18BLD (AD) 43 Ref: ILR76 Indian appeals 147; 27DLR 29; 44DLR(AD)10—Cited Assurance or caution are necessary in case of long detention of the accused in the police custody before the confessional statement is recorded. In the absence of such assurance or caution rendered the confessional statement untrue and involuntary and as such it cannot be used against the accused- appellant nor against his co-accused-Section-164 The State Vs Ali Hossain, 18BLD (HCD) 655 It is an accepted proposition of law that the confession of a co-accused is no evidence against the other accused. Under section 30 of the Evidence Act, the court may take such a confession into consideration only to lend assurance to other evidence which by itself must be sufficient to support a conviction Evidence Act 1872, Ss. 3 and 30 Abdul Awal and others Vs. The State, 14BLD(HCD)187 Ref: 1952 S.C.R. (India)526-Cited Confession of a co-accused is no evidence against other accused persons and the same cannot be made the sole basis of their conviction. The court can however consider the confession of a co-accused to lend assurance to other independent evidence-Evidence Act, 1872, S. 3 The State Vs. Md. Musa, 15BLD (HCD)169 Under section 3 of the Evidence Act the 80 confession of a co-accused is no evidence against other accused persons but under section 30 of the said Act the confession of a co- accused can be taken into consideration against other accused persons only for the limited purpose of lending assurance to other legal evidence on record. Evidence Act, 1872, S. 3 and 30The State Vs. Tajul Islam and others, 15 BLD(HCD) 53 Confession of a co-accused, use of Even if the confessional statement of one accused is found to be true and voluntary, still his confession cannot be used against those who are co-accused in the case, as the basis for convicting them when there is no other evidence against them. Dr Ishaq Ali Vs The State (1993) 13BLD (HCD)236 Ref: 5DLR 369; 18 DLR (West Pakistan) 112 Cited It provides that the confession of a co- accused is not a substantive evidence but it can be used against the co-accused to lend assurance to other evidence on record-Evidence Act, 1872(I of 1872) Section.30. Moslemuddin and another Vs. The State, 16BLD(HCD)3 The evidentiary value of the confession of a co-accused is practically nil against other accused persons in the absence of any inde- pendent corroborative evidence. Faruk Mahajan and ors. Vs. The State, 17BLD(HCD) 15 Section 30 of the Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record, but it never says that such confession amounts to proof. In the instant case there being no substantive evidence, either direct or circumstantial, implicating Ansar Ali, Montaz, Bhola and Hormuz Ali in the alleged commission of dacoity, the learned Assistant Sessions Judge was wrong in convicting the appellants on the basis of the confessional statement of their two co- accused-Evidence Act, 1872, S. 30 Md. Ansar Ali Vs. The State, 19BLD (HCD)224 Ref: Ustar Ali Vs. The State, 18BLD (AD) (1998)43-relied upon Section 30 of the Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged dacoity except as to some evidence about the motive of the offence, the trial Court was wrong in treating the confessional statement of the co- accused as substantive evidence. Mojibar Vs The State, 20BLD (HCD) 273 The confession made by a co-accused 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. [73 DLR (AD) 264] Statement of co-accused. Statement of an accused cannot be used as a substantantive evidence against the co-accused. Though is is admissible but it cannot be made a basis of conviction. Brahmadeo Nunia v. The State, 1980 Cri LJ NOC 146 (Gau). Confession of a co-accused, even when corroborated, cannot be the foundation of a conviction. Confession of a co-accused is obviously evidence of a very weak type, and that, even when corroborated, it does not by itself "amount to proof" and, as such, "cannot be made the foundation of a conviction". State Vs. Badsha Khan (1958) 10 DLR 580. Consideration of proved confession affecting person making it and others jointly under trial for same offence. A confession may be taken into consideration not only against its maker, but also against a co-accused. Thus, though such a confession may not be evidence as strictly defined by Section 3 of the Evidence Act, it is an element which may be taken into consideration by the criminal court. Death reference under Section 374 of the Code of Criminal Procedure has been made by learned Sessions Judge, Narayangonj, for confirmation of death sentence of condemned-prisoner, convicting him under Sections 302, 34 of the Penal Code and sentencing him to death by hanging. In the light of preponderant judicial views emerging out of the authorities, the High Court Division is; of the view that the impugned judgment and order of conviction and sentence suffer from legal infirmities which calls for no interference by High Court Division. In result the death reference is rejected. The impugned Judgment and order of conviction and sentence passed by learned Sessions Judge, Narayangonj, is set aside. The condemned prisoner and the appellants are acquired from the charge leveled against them. All appeals preferred by the convict-appellants are allowed and they discharged from their respective bail bond. State Vs. Kashem (absconding) (Criminal), 18 MLR (2013)-HCD-20. The law is well-settled that the confession of a co-accused is not substantive evidence in the sense that conviction on that alone must stand and section 30 has merely given the Court a discretion to call it in aid in appropriate case. In the instant case the confessing accused did not acknowledge his guilt. He did not admit that he had in any manner of participation in murder. He did not connect him with the offence charged. The confession is out and out exculpatory in terms of the crime of murder. So the same was no confession in the eye of law and as such it is inadmissible and must be left out of consideration. The State Vs. Apel. (Criminal), 2 LNJ (2013)-HCD-321 The confession of co-accused can be considered to lend support to the other evidence, if any, but in this case there is no other evidence so far appellant Idris is concerned other than the confessional statement of the co–accused. Therefore the conviction of Idris is based on no evidence and is liable to be set aside. State vs Rajiqul Islam 55 DLR 61. Legality of the conviction given by the High Court Division under sections 302/109 and 120B of the Penal Code for the murder..(1) There is no dispute that a conspirator is an agent of his associates in carrying out the object of the conspiracy and that it has to be established by direct evidence the accused and other persons whose acts statements or writings are sought to be given in evidence against him entered into a formal consultation or agreement to commit the offence. It is also not disputed that direct evidence is seldom available in view of the fact that a conspiracy to commit an offence is hatched up in secrecy. Whenever a charge of criminal conspiracy is brought against an accused, the rules of evidence provided in section 10 of the Evidence Act will come into play...(10) The principle behind section 30 is that a confession may be true so far as it implicates the maker, but may be false and concocted through malice and revenge so far as it affect others. While such a confession is obviously evidence of a very weak type. It does not come within the definition of evidence contained in section 3 of the Evidence Act...(13) The acts done by any one in referrence to the common intention is considered to be the acts of all. So we find to prove a charge of conspiracy it is required to consider two circumstances: (a) that the act shall be in reference to their common intention; and (b) in respect of a period after such intention was first entertained by one of them. The object of the section is merely to ensure that one person shall not be made responsible for the acts or deeds of another until it is proved that (a) some bond, in nature of agency, has been established between them; (b) the acts words or writing which it is proposed to attribute vicariously to the person charged are in furtherance of the common design, and (c) those acts or deeds done, spoken or written after such design was entertained. The rule of excluding hearsay evidence to prove the charge of criminal conspiracy is not applicable to the statements admissible under this section... (14) We can review our earlier opinions if the circumstances require such reconsideration that is to say, such previous decision appears to be obviously erroneous or is contrary to law or is against public interest. In the majority opinion it has not been said that previous decisions are not sound or not in conformity with law that require reconsideration. The doctrine of precedents has become a part of our law. And precedents are given a constitutional sanction by Article 111. The binding nature of judicial decisions is derived from statutes or conventions... (26) Therefore, unless the prima facie evidence of the existence of a conspiracy is given and accepted, the evidence or statement or confession made by one conspirator in reference to the common object becomes in-admissible against all. Similarly, statements made by an accused person during a trial can hardly be regarded as statements by him as a conspirator in reference to the common intention of the persons who were members of the conspiracy they are therefore, not admissible under section 10 of the Evidence Act...(31) If the prosecution banks upon a charge of criminal conspiracy, the conspiracy being the sheet anchor of the incident, which was hatched up first and in pursuance of this conspiracy the murder was caused, it is the fundamental principle to consider whether the prosecution has been able to prove the charge of conspiracy...(36) This fact proved that any one can get mobile phone connection in the name of any other person. Therefore ext.16, can not be used by the prosecution as corroborating evidence, since it has not been legally proved and even if it is legally admitted, it can not be used against the appellant as corroborative evidence. These facts are not consistent, conclusive and sufficient to find the appellants guilty of the charge...(57) The distinction between the two offences, say the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit the offence is concerned, is that for abetment by conspiracy mere agreement is not enough, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for but in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of offence...(67) In the above case the motive for killing was rightly inferred by this Division but the facts of this case are quite distinguishable. The appellant did not make any confession and there is no eye witness to implicate him in the incident. His complicity has been revealed say, circumstances must be consistent and consistent only with the guilt of the in the confessional statements of co-accused. The case, so far the appellant is concerned, is entirely rests upon circumstantial evidence, the motive undoubtly plays an important part in order to till the scale against the appellant. The appellant can be convicted on circumstantial evidence only when his guilt is established excluding all other reasonable hypothesis and the circumstances are wholly inconsistenet with his innocence. The prosecution has clearly fallen short of proving this fact against the appellant. The evidence to justify a conviction of an offence of murder which involves the forfeiture of life, must be, best kind obtainable, that is to appellant. If the evidence is consistent with any other rational explanation, then there is an element of doubt of which, the benefit must be given in favour of the appellant...(116). Yasin Rahman @ Rahman Yasin @ Titu Vs. The State, (Criminal), 10 ADC (2013)-Page 731. When the cases, previous one and present one, arises out of same transaction or same fact, there is no reason that the evidence of the previous case cannot be used in the present case. The provisions of section 35 of the Act does not bar use of the evidence of the previous case in the present case. Gias Uddin al-Mamun Vs. State, 65 DLR (2013)-HCD-375. Evidence Act, 1872 read with Majority Act, 1875 Age of the victim School certificate—in the instant case doctors certificate as to age of the victim at 17 1/2-181/2 years of age and an opinion as to the age is no conclusive proof thereof and the declaration in the statement under section 164 Cr. P.C. of the victim that she was a major are no proof of age and that radiologist’s opinion cannot be preferred to psitive evidence like school certificate. Arun Karmaker Vs. The State 10 BLT (AD)-40 Oral Evidence in Criminal Case The statements under section 164 of the Code of Criminal Procedure recorded before an authority other than the Judge who tried the case was not the statement of the witnesses produced before him, and, as such, this could not be treated as oral evidence. Such statements could not be used as substantive evidence for arriving at any finding as to the guilt or innocence of the accused. Babloo and another vs State 47 DLR 337. Police witnesses are partisan or interested witnesses in the sense that they are concerned in the success of the raid. Their evidence must be tested in the same way as the evidence of the other interested witnesses by the application of diverse considerations which must vary from case to case. In view of the attitude as aforesaid of the learned Tribunal Judge regarding the police witnesses, we are at the outset required to settle the point. There cannot be any rigid consideration in this respect. In assessing oral evidence Judges may call in aid their experience in life and test the evidence on the basis of probabilities. Thus in a proper case, the Court may look for independent corroboration when it is found not safe to dispense with. Sirajul Islam (Md) vs State 48 DLR 301. Sufficiency of for Conviction- It appears that in this case excepting P.W. 2 there is no other eye witness of the occurrence, The prosecution has succeeded in proving that deceased Niru was found dead in the house of this condemned-prisoner while she was in his custody. In this case besides the oral evidence the prosecution also relied upon the circumstantial evidence. Admittedly Niru died at the house of this condemned-prisoner, her husband and naturally there cannot be any eye witness of the occurrence from the side of her father nor the someone from the house of the condemned-prisoner would depose in support of the murder or on the factum of assault by this prisoner upon the deceased. In such a situation the prosecution had no other alternative but to rely on the circumstantial evidence. In such circumstances when the wife met with her death while she was in the custody of her husband it is he who is to explain how she met with her death. The defence tried to impress that she was assaulted at her father's house by her relations who thereafter kept her forcibly at the house of this condemned-prisoner but none of the prosecution witnesses or even D. W. 1 has admitted this. No other defence witness was examined to prove this defence version of the case. According to the defence she was kept in the house of the condemned-prisoner at the date of occurrence which he stated in his statement recorded under section 342 of the Code of Criminal Procedure. He also stated that he saw his wife in injured condition. But he took no step for her treatment or inform any of the co-villager of the incident. It appears that he allowed his wife to die and even after her death he has not informed any of the co-villager or reported the matter to the police which is admittedly at a distance of 3 kilometers from his house. None of the inmates of the house also informed the police or took any medical help for saving the life of the deceased suggested that she was assaulted by the prosecution witnesses but no evidence was led in support of this suggestion. The witness produced by the condemned-prisoner also is silent as to the circumstances leading to the death of the deceased. Abdul Motleb Howalder Vs. The State 8 BLT (AD)-288 Oral Gift It is not disputed that Abdul Sattar got the suit property by transfer not from real owner namely, Sufia Begum but from Abdul Sattar to his son on the basis of oral gift confirmed by a declaration through a photostat copy of an affidavit sworn before a Notary Public which having not been corroborated by any witnesses and the same has not been attested with original or duplicate copy and the Notary Public attested the same merely collecting the execution of the affidavit from his memory cannot be said a declaration of oral gift has been proved as required by the Evidence Act. Government of Bangladesh & others vs Paper Converting & Packaging Ltd & others 6 BLC 467. Oral gift of non-agricultural land by a Muslim Oral gift of non-agricultural land by a Muslim is valid notwithstanding subsequent execution and registration of a deed of gift —- Muslim Law — Non-Agricultural Tenancy Act, 1946 (XXIII of 1946), S. 23(1). The provision of section 23 of the Non Agricultural Tenancy Act prohibiting transfer of non-agricultural tenancy without a registered document shall not apply to gifts of immoveable property by a Muslim. A valid gift of immoveable property with building and structures inter vivos can be made under the Muslim Law by oral gift. According to Muslim Law an oral gift is complete as soon as the declaration of gifts and the delivery of possession is given by the donor to the donee. When these essential conditions are complied with, the gift becomes perfectly valid and if a written deed is executed afterwards and registered, the oral gift would be valid notwithstanding the latter instrument of gift. Alhaj Aklima Khatun and another Vs. Shah Alam and another, 1 BLD (HCD) 34 Ref: 22DLR (SC)134; A.I.R. l949(Mad) 307; F.A.No. 79 of 1963 (Unreported);49 l.A. 195 (209-10); 39 C.W.N. 882; 6 C.L.J. 328; 1935 A.C. 24;— Cited. Oral gift by trustees—Trust not under Muslim Law—Gift is invalid for want of registration. Where the trustees of a Trust which was not created under Muslim Law made an oral gift of some property of the trust to another trust. It was held that the oral gift was invalid for want of registration. Standard Vacuum Oil Vs. Mir Laik Ali PLD 1962 Karachi 727 (BD). (Qadeeruddin, J). Since it is a gift under the Mohammedan Law it need not be registered in view of the exemption provided by section 129 of the Transfer of Property Act. KZ Alam vs Secretary, Ministry of Housing and Public Works 54 DLR 451. Ignoring Witness Evidence The Court has a right to believe or disbelieve a witness or a number of witnesses on assigning reasons but it has no right to ignore the evidence of the witnesses examined by the contending parties, irrespective of value that it may carry. In the instant case the Courts below evidently erred in law in decreeing the suit for permanent injunction without discussing and considering any evidence of the 10 witnesses examined by the contending parties proving the possession of the opposite parties. Satish Chandra Barua Vs Samir Kanti Barua and others, 19 BLD (HCD) 608. Recital in kabala — Question of admissibility — Plaintiff is not an executrix the kabala, she is a mere recipient of it — The recital of kabala per se shall not go into evidence unless the person who has made such recital raises any objection there for. Feroja Khatoon Vs. Brajalal Nath and others; 10 BLD (HCD) 218. Examination of Witnesses and Their Cross-Examination The right of the adverse party to cross-examine a witness is never confined to the facts deposed by the witness in their examination-in-chief but extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant to the suit. Md. Khalilur Rahman Vs. Md. Asgar Ali 7 BLT (HCD)-352 সাক্ষীদের জবানবন্দি এবং তাদের জেরা প্রতিপক্ষের সাক্ষীকে জেরা করার অধিকার শুধুমাত্র সাক্ষীর জবানবন্দিতে উল্লিখিত বিষয়গুলোর মধ্যে সীমাবদ্ধ নয়, বরং মামলার সঙ্গে সম্পর্কিত সকল বিষয় পর্যন্ত সম্প্রসারিত। প্রতিপক্ষের মামলার প্রাসঙ্গিক সকল বিষয়ে সাক্ষীকে জেরা করার অধিকার রয়েছে। মো. খলিলুর রহমান বনাম মো. আসগর আলী ৭ বিএলটি (এইচসিডি)-৩৫২ Unfortunate Rejection of Testimony It is unfortunate that for not seizing the lungi of PW I, the positive testimony of this witness and other witnesses who confirmed PW I's presence during the occurrence has been discarded. "Evidence false in part is false in entirety" As a matter of fact, this maxim is not supported by any authority and has no relevance in the present time. Mahmudul Islam alias Ratan vs. State, 53 DLR (AD) 1 সাক্ষ্য প্রত্যাখ্যান করা দুর্ভাগ্যজনক পিডব্লিউ ১-এর লুঙ্গি জব্দ না করার কারণে এই সাক্ষী এবং অন্যান্য সাক্ষীদের ইতিবাচক সাক্ষ্য, যারা ঘটনার সময় পিডব্লিউ ১-এর উপস্থিতি নিশ্চিত করেছিলেন, প্রত্যাখ্যান করা দুর্ভাগ্যজনক। "আংশিক মিথ্যা প্রমাণ পুরোপুরি মিথ্যা" বাস্তবে, এই নীতিটি কোনও কর্তৃপক্ষ দ্বারা সমর্থিত নয় এবং বর্তমান সময়ে এর কোনও প্রাসঙ্গিকতা নেই। মাহমুদুল ইসলাম ওরফে রতন বনাম রাষ্ট্র, ৫৩ ডিএলআর (এডি) ১