Penal Code, 1860

Section 120A and 120B- The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable.... (Surendra Kumar Sinha, J). ..... State VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Section 120A-Bazlu made the confessional statement after his arrest and that too after the alleged criminal cons- piracy culminated with the killing of deceased. So, the confessional statement of accused-Bazlu cannot be used as evidence against Mobile Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120A-Criminal conspiracy -Conduct of the accused both before and after the commission of offence is also relevant to prove the charge. No written or definite agreement is necessary to constitute a conspiracy-its existence being generally a matter of inference from the acts of the accused. It is sufficient to constitute the offence, so far as the combination is concerned, if there is a meeting of the minds, a mutual implied understanding or tacit agreement, all the accused working together, is with a single design, for the accomplishment of the common purpose. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120B-Criminal conspiracy -The circumstances before, during and after the occurrence about the complicity of the accused in the incident must be proved beyond shadow of doubt. The criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy for murder. Each one of the circumstances should be proved beyond reasonable doubt. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120B-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 120B- Criminal conspiracy It is well settled that in order to prove a criminal conspiracy which is punishable under Section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference agreement between two or more persons to commit an offence." (Per Md. Muzammel Hossain. J) Major Huda(Artillery)-VS-The Md Bazlul State (Banga Bandhu Murder Case), [9 LM (AD) 386] Section 120B- Criminal conspiracy- This Court observed that a conspiracy is a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose common between them. A criminal conspiracy consist not merely intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect the very plot of act itself, and the act of each of the parties capable of being enforced, if lawful, possible if for a criminal object or for the use of criminal means. The elements of criminal conspiracy are (a) an agreement between two or more persons, (b) to do an illegal act, or (c) to do a legal act by illegal means, and (d) an overt act done in pursuance of the conspiracy. A charge of criminal conspiracy for an offence under section 120B of the Penal Code, the prosecution need not prove that the perpetrators expressly agree to do or caused to be done the illegal act; the agreement may be proved by necessary implication. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581] Section 120B- Conspiracy or common design In criminal law a party is not generally responsible for the acts and declarations of others unless they have been expressly directed, or assented to by him; "nemo reus est nisi mens sit rea". This section, however, is based on the concept of agency in cases of conspiracy. Conspiracy connotes a partnership in crime or actionable wrong. A conspirator is considered to be an agent of his associates in carrying out the objects of the conspiracy and anything said, done or written by him, during the continuance of the conspiracy, in reference to the common intention of the conspirators, is a relevant fact against each one of his associates, for the purpose of proving the conspiracy as well as for showing that he was a party to it. Each is an agent of the other in carrying out the object of the conspiracy and in doing anything in furtherance of the common design." (Per S. K. Sinha, J) ...Major Md. Bazlul Huda (Artillery)=VS-The State (Banga Bandhu Murder Case), [9 LM (AD) 386] Section—120B Criminal Conspiracy Assembly at Bangabhaban on the occasion of oath taking ceremony took place after the occurrence of the previous night and the presence of the petitioner at Bangabhaban on the following day cannot by itself be a sufficient ground for even an inference for a criminal conspiracy. Her jubilation might be her husband but for that it cannot be said that she was in the conspiracy the result of moral support in the activities of her husband but for that it cannot be said that she was in the conspiracy. Mrs. Jobaida Rashid Vs The State, 17BLD(HCD)352 Ref: ‘Principles and Digest of the Law of Evidence’—By M. Monir; Queen Vs. Blake, 1844 6QB 126; 17 BLD (1997) 11; 17 BLD (AD)( 1997)54; 17BLD(AD)( 1997)163:2 BLC (AD) (1997) 75—Cited Section 120B— Jobaida’s jubilation might be the result of her moral support to the activities of her husband (leading to bloodshed and political change) but for that it cannot be said that she was in the conspiracy. Jobaida Rashid vs State, represented by the Deputy Commissioner, Dhaka 49 DLR 373. Criminal Conspiracy Petitioner's jubilation might be the result of moral support in the activities of her husband but for that alone it cannot be said that she was in the criminal conspiracy-Section. 120B Jobaida Rashid Vs. The State, 17BLD (HCD)366 Ref: 27 DLR (AD) 29; 37DLR (AD) 139; 7 BCR (AD) 143 Cited Section 120B and 302/34 – Criminal conspiracy leading to commission of murder when established can be punished with the same sentence as in the case of principal accused. When charge of criminal conspiracy and murder of two judges are proved by convincing evidence beyond shadow of all reasonable doubt the conviction of the convict-petitioners and sentence of death are held by the apex court perfectly justified. The convict-petitioners who are the top leaders of the JMB a perverted Islamic militant group admitted their participation in the criminal conspiracy leading to the commission of murder of two judges at Jhalakathi having been found guilty of the offence charged with and having found them a serious threat to the life and security of innocent people have been sentenced to death. The High Court Division accepted the death reference and Appellate Division found no fault with the conviction and sentence and dismissed their petitions for leave to appeal. Shaiakh Abdur Rahman & five others Vs. The State. 12 MLR (2007) (AD) 80. Hartal If an assembly of five or more persons takes a decision to observe hartal by them selves and their associates, then the decision does not come under the mischief of fifth clause to section 141 of the Penal Code. This decision does not contemplate holding of any procession or picket or any activity or activities to implement the decision. But if an assembly of five or more persons takes the decision to observe hartal to be participated by the people at large so that their common object is to compel others obviously by show of criminal force to do what they are not legally bound to do, then the said assembly must be an unlawful assembly according to fifth clause to section 141 of the Penal Code and the members of that unlawful assembly are liable to be punished under section 143 of the Penal Code Consequently the processions or other activities in support of or to force such hartal shall be unlawful assemblies. Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State Vs. Mr. Md. Zillur Rahman and others, 19BLD (HCD) 303 Sections—141, fifth clause and 143 If an assembly of five or more persons takes a decision to observe Hartal by themselves and their associates, then the decision does not come under the mischief of fifth clause of section 141 of the Penal Code. This decision does not contemplate holding of any procession or picket or any activity or activities to implement the decision. But if an assembly of five or more persons takes the decision to observe hartal to be participated by the people at large so that their common object is to compel others obviously by show of criminal force to do what they are not legally bound to do, then the said assembly must be an unlawful assembly according to fifth clause of section 141 of the Penal Code and the members of that unlawful assembly are liable to be punished under section 143 of the Penal Code. Consequently the processions or other activities in support of or to force such hartal shall be unlawful assemblies. Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State Vs. Mr Md Zillur Rahman and ors., 19 BLD (HCD) 303 Sections 143/326 Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed hail. Though some explanation has been given in the First Information Report but it can not be denied that for an occurrence alleged to have taken place on 03.08.2001 First Information Report has been lodged on 20.04.2002/ 05.05.2002. In the First Information Report it appears that allegations of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents - do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No.1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268 Section 143/326 Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed bail. Though some explanation has been given in the First Information Report but it cannot be denied that for an occurrence alleged ged to have taken place on 03.08.2001 First Information Report has been lodged on 20.04.2002/05.05.2002. In the First Information Report it appears that allegations of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No.1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268 Section 147/148/341/323/307/373/365 and 34 That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive sub- stances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are alleations against some other co-accused of assault, abduction and confinement of the informant but most of them are enjoying bail. That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dis missed. The State, Represented by the Deputy Commissioner VS. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267 Section 147— All the accused persons assembled to attack the informant. Though only one accused Abdul Khaleque attacked the informant, other accused are also guilty under section 147 because every member of an unlawful assembly is guilty irrespective of whether he had any overt act or not. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457. Section 147, 148, 149, 323, 324, 326, 302, 427/34 Consideration the fact that there are major contradiction and omission in the evidence of all the witnesses and that the prosecution have failed to prove the time, manner and also the place of occurrence by evidence and moreover the place of occurrence has also been shifted from the back of the pond to the courtyard of the house. Further, the trial court as well as the High Court Division failed to take into consideration that all the prosecution witnesses are closely related to each other and not a single impartial witness came to support the prosecution case at trial even regarding the prayer for bail. Samar Uddin vs The State (Md. Tafazzul Islam J) (Criminal) 3ADC 416 Sections 147/148/341/323/307/379/365 and 34 That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive sub- stances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are allegations against some other co-accused of assault. abduction and confinement of the inform- ant but most of them are enjoying bail. That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dismissed. The State, Represented by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267 Sections 148/302/34/324/325/326/323- Criminal justice system is that if a single witness can prove direct involvement of the accused person in commission of an offence and if the same is believed or other circumstances support the prosecution case then conviction and sentence can be imposed. ... State VS- Sarafat Mondol @ Mander Mondol. [8 LM (AD) 362] Section 148, 302/34, 326 Because the place of occurrence has been shifted and in this respect witnesses have contradicted themselves. ........investigating officer did not seize any blood stained earth nor any wheat plant to identify the place of occurrence. Habibur Rahman alias Habu vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 398 Section 148/302/34 Who were assaulted by the dacoits and that out of previous enmity the accused peresons have been implicated in the case falsely. P.W.1 Abdul Jalil, though an eye witness was told of the occurrence by the victim at the hospital and accordingly he lodged the First Information Report clearly mentioning the names of the petitioners and others. It appears that the trial court after con- sidering the evidence of eye-witnesses including P.Ws. 2,3 and 4 passed the impugned judgment and convicted the petitioners. The High Court Division in its turn found them guilty in consideration of evidence on record. However consider- ing the facts and circumstances of the case the High Court Division took a lenient view and altered the judgment of conviction and reduced the sentence of the petitioners. There is nothing to inter- fere. Md. Asgar Ali alias Asgar and oth- ers vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 897 Sections 148/304/34 – Charges against several accused need to be proved by specific evidence – When there is sharp contradiction in between the medical evidence and the ocular evidence as regards the number of injuries alleged to have been inflicted on the person of the deceased and the conviction and sentence are based on omnibus statements of the witnesses, the learned judges held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. the State 12 MLR (2007) (HC) 202 Section 148— If both parties are found to have committed offence under section 148 of the Penal Code none of them is entitled to be acquitted on the ground that the other is the aggressor and in this respect law spares none. Bachu Miah vs Samad Miah and others 50 DLR 564 Section 149— The two accused had no premeditation to kill the victim and as such the application of section 149 for tagging them to face trial on murder charge appears to/be illegal. State vs Khalilur Rahman 48 DLR 184. Section 148 & 307 r/w 149- Motive does not have to be established where there is direct evidence- The High Court has not at all dealt with the direct evidence of PW-1 and given the fact that such evidence has stood the test of cross-examination, we are constrained to observe that the view taken by the High Court is not a possible view and we therefore set aside the acquittal of the five accused persons and restore the conviction and sentence imposed upon them by the Trial Court. The respondents are directed to surrender before the concerned Court within a period of two weeks from today to serve out the remainder of sentence imposed by the Trial Court. ......Rajagopal =VS= Muthupandi, [3 LM (SC) 77] Section 149, 148, 149, 323, 302, 447 That in case of any Judge of Magistrate or a public servant, nor removable from his office save by order or with the sanction of the Government, being an accused of any offence, while acting in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Government. We like to observe that the two petitioners being members of the Police establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and as such, in our opinion, they were rightly served by the learned Additional Sessions Judge sentencing them to death and so no lenience ought to have been shown to them. A. S. 1. Md. Ayub Ali Sardar vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 663 Section—149 For applying section 149 of the Penal Code against an accused, three conditions must be fulfilled: (a) the accused must have been a member of the unlawful assembly at the time the offence was committed; (b) the offence must have been committed in prosecution of the common object, or (c) the offence must be such as the members of the assembly knew likely to be committed in prosecution of that object. Before applying section 149, the Court must have indubitable evidence that the members of the unlawful assembly constituted the statutory number of five, though some of them might not have been named, or identified, or brought to trial. Rafiqul Islam Vs. The State, 13BLD (AD)11 7 Ref: A.I.R.1953 SC 364; 1969 SCMR 537; AIR 1960 SC(290); AIR 1963 SC 174; AIR 1974 Sc 1567; A1R1975 SC 1917 (1921 and 1922); AIR 1978 sc 1233—Cited Section 149— When a particular offence is committed by an individual member of the unlawful assembly, which was neither done in prosecution of common object of the assembly nor other members of the assembly lenew that the offence would be committed, other members of the assembly/cannot be held liable for the offence. The word “likely”, in the later part of section 149 of the Code means some clear evidence that an unlawful assembly had such a knowledge. In view of other offenses committed, such as criminal trespass and assault, it is difficult to hold that all the appellants are consecutively liable under section 149 of the Code when Appellant No. l Abdus Sattar alone struck a Katra blow on the right side of the chest of deceased which proved fatal and, strictly speaking, section 149 of the Penal Code is not attracted in this case. There being overwhelming evidence of inflicting Katra blow on deceased Aminul Huq by Appellant No. l, the appeal in respect of Appellant No. l Abdus Sattar is dismissed and his conviction and sentence under sections 302/149 of the Penal Code is altered to section 302 of the Penal Code and his sentence of imprisonment for life is maintained. Abdus Sattar and others vs State 46 DLR (AD) 239. Sections 161 and 165A-In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True, the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. Mia Nur- uddin (Apu) vs State, 68 DLR (AD) 290 Sections 161 and 167-Criminal misconduct- Section 5(1) of the Act defines criminal misconduct. Charge does not refer to misappropriation of money, but the words "above mentioned acts" contained in the charge necessarily imply the offence of criminal breach of trust. The charge specifically refers to the offences under sections 161 and 167 of the Penal Code. Mostafa Kamal vs State, 66 DLR 534 Section 161- A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications demands, thereby, or erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir. [3 LM (AD) 509] Section 161 – Laying trap to catch hold of the accused red handed while taking bribe. Anti-Corruption Commission Rules, 2007 Rule 16 – To lay and conduct trap to catch hold of an accused red handed and the requirement of the officer so conducting trap to be empowered by the Anti-Corruption Commission. To empower an officer by the Commissioner in charge of investigation to lay trap and conduct the proceedings as required under rule 16 of the Anti- Corruption Commission Rules, 2007 is the mandatory requirement of law. In the absence of such empowerment or authorization the learned judges held the proceedings illegal and abuse of the process of the court and as such quashed the same. Rezaul Kabir (Md.) State and another 14 MLR (2009) (HC) 482. Section 167-In order to convict the accused under section 167 of the Code, the prosecution must prove that the accused was entrusted with preparation of the document in question. The prosecution did not produce any document before the Court in order to support the charge. There is no incriminating evidence or circumstances to sustain the conviction under section 167 of the Code. Mostafa Kamal vs State, 66 DLR 534 Section 182, 195- An accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio Laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio. The prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above. The appeals succeed and are allowed. Impugned orders stand set aside......Saloni Arora =VS= State of NCT of Delhi, [3 LM (SC) 80] Telephonic Call Allegation of giving instruction over telephone cannot be the basis of a proceeding against the petitioner under section 186 of the Penal Code. Even if there is any statement of the Superintendent of Police to the effect that he received a telephonic call from the petitioner such evidence cannot be the basis of implicating the petitioner in the case because the identity of the caller cannot be proved and as such the proceeding cannot proceed against the petitioner. Continuation of the proceeding shall be abuse of the process of the Court. Major General (Rt.) Mahmudul Hasan Vs The State, 20BLD (HCD) 341 Written complaint It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation of the order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code. Abdul Ahad @ Md Abdul Ahad Vs. The State, 20BLD(HCD)372 Section—188 It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code. Abdul Ahad @ Md Abdul Ahad Vs The State, 20 BLD (HCD) 372 Section 193— If a court finds that any witness committed an offence under section 193, the court is to proceed in accordance with the provisions of section 476 of the Code of Criminal Procedure because the offence under section 193 is included in section 195(l)(b) of the Code. Idris Miah (Md) vs State 50 DLR 629 Section 199 and 200 Declaring that the election of the Jhalakathi Pourashava has been vitiated as a whole and consequently cancelling the Gazette notification declaring the appellant as elected to the aforesaid post. Once the election process has been start- ed, moreso, when in the instant case election result has been published in the official gazette the High Cough Division has no jurisdiction under Article 102 of the Constitution to enter- tain any matter relating to election unless there is corum-non-judice or mal- ice in law as decided by the Court. It has been settled long ago that disputed ques- tions of fact are outside the jurisdiction of disposal of an application under Article 102 of the Constitution. Abdul Halim Gazi vs. Afzal Hossain and others (Amirul Kabir Chowdhury J) Civil) 4ADC 195 Section 199, 200 The claim of the respondent No. 1 that the appellant is a bank loan defaulter has been persistently denied by the appel- lant and the matter is pending before the superior Courts and thus we do not find that there exits such a clear case capable to be decided at the micro-level on the interpretation of the relevant law. Abdul Halim Gazi & Bangladesh, Dhaka vs Afzal Hossain (Amirul Kabir Chowdhury J(Civil) 2ADC 533 Sections 45, 49, 53 & 57- Imprisonment for life The word 'imprisonment' has been substituted for the word 'transportation' by Ordinance No. XLI of 1985. When framing the Penal Code, the draftsmen undoubtly intended this sentence to remain as one whereby those on whom it was passed should be sent over seas. This can be inferred if the history of the sentence is examined that when the first enacted, transportation' means transportation beyond seas, although in India it has been substituted in 1955. Section 45 defines the word 'life' means 'the life of a human being unless the contrary appears from the context'. So if no contrary appears from the context 'life' means the life of a human being. The meaning of the words 'year' and 'month' have been defined in section 49, which means 'the year or the month is to be reckoned according to this British calendar'. Here the expression 'reckoned' is used which will be very significant for resolving the issue, and in calculating the period of sentence, a 'year' means its length i.e. about 365 days, 5 hours, 48 minutes and 51.6 seconds. To do away with the odd hours, the new style of calendar has adopted the average length is about 365 days and every fourth year of 366 days (24) Geo.11.c25). A sentence for one calendar month does not imply imprisonment for a fixed number of days. It may vary according to the month in which the sentence is passed. If the imprisonment began on the 30th of a month it will expire at midnight of the 29th of the following month, if the following month is not February, in which case it will expire on its last day whatever be the total number of days served by the prisoner. Section 53 of the Penal Code sets out five different punishments to which offenders are liable to suffer under the provisions of the Penal Code. The first sentence is death; the second is imprisonment for life; the third was omitted by the criminal law (Extinction of Discriminatory Privileges) Act, 1949; the fourth is imprisonment of rigorous or simple, the fifth is forfeiture of property and the sixth is fine. In the explanation it is provided that in the punishment of 'imprisonment for life' the imprisonment shall be rigorous'. So all imprisonment for life shall be rigorous imprisonment whether it is mentioned in the judgment or not. Reading sections 45 and 53 conjointly there is no doubt that a sentence of life imprisonment means a sentence of rigorous imprisonment for the whole of the remaining period of the convicted person's natural life.....Ataur Mridha -VS- The State, [3 LM (AD) 513] Section 45 & 57- Meaning of life sentence- The way it has been interpreted, the word "life" does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines "Life" as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that person sentenced to a imprisonment for life will be released after spending a maximum of 22.5 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial. .....Rokia Begum VS The State, [1 LM (AD) 571] Sections 45, 53, 55, 57- Imprisonment for life 30 years- The review petition is disposed of with the following observations and directions by majority decision: Sections 45 & 53-An imprisonment for life, in terms of section 53 read with section 45 of the Penal Code meant imprisonment for the rest of life of the prisoner. A convict undergoing life imprisonment has no right to claim remission. Ataur Mridha @ Ataur vs State. 69 DLR (AD) 214 Section 53-Sentence Once the accused has been found guilty of a crime, or rather convicted, the Court or Judge will formally declare the appropriate punish- ment to be imposed upon the person. The Court orders a sentence based on the relevant law applicable to the particular crime. Sentence may take various form; such as, sentence of death, sentence of imprisonment for life, sentence of imprisonment for a fixed term, sentence of forfeiture of property and sentence of fine. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 Sections 53 & 53A-Except the meaning of the word 'life' no definition of 'imprisonment for life' is used in section 53 of the Penal Code. Penal Code is totally silent regarding the duration of 'transportation for life'. This ambiguity has been clarified by insertion of section 53A in the Penal Code by Ordinance No. XLI of 1985. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 53A-The insertion of section 53A makes it clear that the expression is used to be presumed that it is 'imprison- ment for cessation of the natural life of the prisoner. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Sections 53 & 57 Section 53 of the Penal Code does not in any way limit the sentence of imprisonment for life. Section 57 also does not in any way limit the sentence of imprisonment for life to a term of thirty years. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 53-Sentence Once the accused has been found guilty of a crime, or rather convicted, the Court or Judge will formally declare the appropriate punish- ment to be imposed upon the person. The Court orders a sentence based on the relevant law applicable to the particular crime. Sentence may take various form; such as, sentence of death, sentence of imprisonment for life, sentence of imprisonment for a fixed term, sentence of forfeiture of property and sentence of fine. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 Sections 53 & 53A-Except the meaning of the word 'life' no definition of 'imprisonment for life' is used in section 53 of the Penal Code. Penal Code is totally silent regarding the duration of 'transportation for life'. This ambiguity has been clarified by insertion of section 53A in the Penal Code by Ordinance No. XLI of 1985. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 53A-The insertion of section 53A makes it clear that the expression is used to be presumed that it is 'imprison- ment for cessation of the natural life of the prisoner. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Sections 53 & 57 Section 53 of the Penal Code does not in any way limit the sentence of imprisonment for life. Section 57 also does not in any way limit the sentence of imprisonment for life to a term of thirty years. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Sections 54 Government has power to commute the sentence of death imposed to a prisoner under section 54 of the Penal Code. It provides "In every case in which sentence of death shall have been passed, the Government may, without consent of the offender, commute the punishment for other punishment provided by this Code. In case of a life sentence offender, the government reserves the right to 'commute the punishment for imprisonment of either description for a term not exceeding twenty years' (S.55). The word 'twenty' has been substituted for the word 'fourteen' by Ordinance No. XLI of 1985. .....Ataur Mridha -VS- The State, [3 LM (AD) 513] Section 55-Whether if prisoner's sentence of imprisonment for life is till the expiry of the natural life, the State has power to remit the sentence after the expiry of twenty years in prison in view of section 55 of the Penal Code. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 57-The object and purpose of this section is for working out the fractions of indefinite imprisonment term fixed for the principal offence. Say, sections 65, 116, 119, 120, 511 and some other about forty plus sections of the Penal Code which fix the term of imprisonment thereunder as a fraction of the maximum fixed for the principal offence. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 57-A plain reading of this provision does not show that life imprisonment shall be for thirty years. It says, in calculating the fractions of terms of punishment, that is, it is limited to calculating the fractions of terms of imprisonment and while calculating fractions, life imprisonment is to be reckoned as equivalent to imprisonment for thirty years. It does not say that life imprisonment means imprisonment for thirty years for all purposes. It cannot be held or meant to make life imprisonment is equivalent to imprisonment for thirty years for all purposes. Under no stretch of imagination it can be said that life imprisonment means thirty years in total period in prison to be served by a prisoner. It means a sentence of imprisonment for whole of the remaining period of the convicted persons natural life. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 57- Section 57 of the Penal Code is limited in its scope and cannot be held to make life imprisonment equivalent to imprisonment for thirty years for all purposes. Mohibur Rahman vs State, 69 DLR (AD) 330 Section 84- Accused-respondent was of unsound mind from 22.6.1999 i.e. 8(eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused-respondent, at the time of commission of the offence on 13.10.1998- , On scrutinizing the materials on record specifically the Medical reports (Exhibits- A,B,C and D), submitted by the DWs we have already found that the defence has been able to prove that the accusedrespondent was of unsound mind from 22.6.1999 i.e. 8(eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused- respondent, at the time of commission of the offence on 13.10.1998, as required under section 84 of the Penal Code and section 105 of the Evidence Act by providing sufficient evidence, he cannot get any benefit under section 84 of the Penal Code nor under Chapter XXXIV of the Criminal Procedure Code. Plea of insanity or of unsoundness of mind of the accused respondent being not prima facie found, the Court is not obligated to take recourse to the provisions as laid down in Chapter XXXIV of the Criminal Procedure Code. The impugned judgment and order of acquittal passed by the High Court Division is hereby set aside and the judgment and order of conviction and sentence passed by the trial court is hereby affirmed. ...State VS Abu Hanifa @ Hanif Uddin, [9 LM (AD) 262] Section 96— The possession for exercising right of private defence must be a settled possession a peaceful possession for a pretty long time without any resistance. Sarwar Kamal and others vs State 48 DLR 61. Sections 96-104— The onus of proving right of private defence lies on the accused claiming exercise of such right. Sarwar Kamal and others vs State 48 DLR 61. Sections 96-106— The right of private defence of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right is an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandoker Saiful Islam vs State 50 DLR (AD) 126 Sections—99 and 100 Right of private defence of person even extends to causing of death when there is a reasonable apprehension that the intended assault by the aggressor would cause death or grievous hurt. But no right of private defence of person is available against an unarmed man. Dalim and another Vs. The State, 15 BLD (HCD) 133 Right of private defence When the fear of retaliation from the deceased party overpowers the mind of the accused it is not possible for him to weigh the situation in golden scales. In such a situation when he is faced with assaults from the rival party it is not unnatural for him to strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, attending circumstances indicate that accused Ruhul Amin gave the knife blow only to free himself from the grip of deceased Moktar Ali. Under the circum- stances, the accused cannot be said to have exceeded the right of private defence-Penal Code, 1860 (XLV of 1860) Section. 100 Ruhul Amin Mondal Vs. The State, 16 BLD(HCD)91 Section—100 Right of private defence—When it extends to causing death? When the accused had scuffles with the deceased sometime before the occurrence and the fear of retaliation from the deceased party overpowers the mind of the accused, it is not possible for him, whose mental excitement can be better imagined than described, to weigh the position in golden scales. In such a situation when he is faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of private defence. The accused can not be said to have exceeded the right of self-defence. Ruhul Amin Mondal Vs. The State, 16BLD(HCD) 91 Section 100— Right of private defence—When the accused had scuffles with the deceased and the fear of retaliation from the deceased party overpowers the mind, it is not possible for him to weigh the position in golden scales. In such a situation when he is faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of private defence. The accused cannot be said to have exceeded the right of self-defence. Ruhul Amin Mondal vs State 49 DLR 250 Section 102B/302/34 While the victim was being teken to the local hospital for treatment, on the way he died on. Charge-sheet against 15 accused-per sons including the leave-petitioners under Section 120 B/302/34 of the Penal Code. Amirul Islam and others vs. The State and another (Syed J.R. Mudassir Husain CJ) (Criminal)4ADC 175 Section 107, 109 and 120B- In order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy Offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place inpursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it.... (Surendra Kumar Sinha, J). ... State VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Sections 107 and 109-Since the petitioner is a beneficiary of the illegal transaction and he has an engagement in the illegal transaction, a prima-facie allegation of abetment regarding manipu- lation of the tender for sale of the abandoned properties has been disclosed against the accused-petitioner The prose- cution should not be debarred from proving the allegation of abetment by evidence which may be oral, documentary and circumstantial in nature. Ali Haider Chowdhury vs State, 65 DLR 116 Sections 107 and 109-Whether the petitioner had any role in the illegal transaction or whether he abetted the principal accused in manipulating the tender for sale of the case properties and whether the petitioner is a bonafide purchaser for value are all disputed questions of fact which may be resolved on taking evidence by the trial Court. Ali Haider Chowdhury vs State, 65 DLR 116 Sections 107 and 109-Abetment is an offence which may be inferred from the conducts of the accused and circumstances of the case. It may be proved either by oral and documentary evidence or by circum- stantial evidence. Ali Haider Chowdhury vs State, 65 DLR 116 Sections 107 and 111-The definition of abetment given in section 107 of the Code includes not merely an instigation which is the normal form of abetment but also includes other forms of abetment as contemplated in the proviso of section 111 of the Code. In order to find any person guilty of the offence of abetment it must be shown that he instigated the person who committed the offence or that there was an agreement to commit the offence between him and the person committing the offence. State vs Monir Hossain, 65 DLR 455 Sections 107, 302 & 109-There was rivalry between deceased Moulana Abdul Quader and accused Mobile Quader and his brother-Lawrence over Mamar Bazar at Dugachhi, Kum beneath the bridge near Mamar Bazar and the Chairmanship of the Managing Committee of Kazir Pagla High School and that unerringly proved the motive behind the killing of Moulana Abdul Quader and that is a very strong circumstance also to infer as to the involvement of accused Mobile Quader with the killing of deceased Moulana Abdul Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 109-Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. Anti-Corruption Commission vs Tasmima Hossain, 69 DLR (AD) 290 Section 109-Distinction of NIKO case-It appears from the confession of co- accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin-al-Mamun to ensure that the 'JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Act. The issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Act, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the 'JVA'. The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. The case is quite distinguishable from the other case which was already quashed by the High Court Division. Begum Khaleda Zia vs Anti-Corruption Commission, 69 DLR (AD) 181 Section 109-Abetment-Prima- facie allegation of abetment regarding manipu-lation of the tender for sale of the abandoned property has been disclosed from materials collected by the prosecu- tion. Therefore, the prosecution should not be debarred from proving the allegations of abetment by evidence which may be oral, documentary and circumstantial in nature. ACC vs Mehedi Hasan, 67 DER (AD) 137 Section 109-Abetment-Abetment is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence. ACC vs Mehedi Hasan, 67 DLR (AD) 137 Section 109-Abetment under section 109 of the Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. Begum Khaleda Zia vs ACC, 68 DLR 1 Section 109 Offence of abetement- In order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement there must be evidence that an act was abetted and that it was abetted by the person charged with. The act abetted must, moreover, amount to a crime, and in order to connect the abettor with the crime, it is not sufficient to prove that he had taken part in those steps of the transaction which are innocent, but it must also be proved that he had deliberately taken part in those steps of the transaction which constituted an offence. Section 109 may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by illegal omission.... (Surendra Kumar Sinha, J). .....State VS Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Section 109- Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. .....Anti-Corruption Commission =VS= Tasmima Hossain, [3 LM (AD) 9] Section 109- The High Court Division has come to a finding that it appeared from the confession of co- accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin Al Mamun to ensure that the 'JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Prevention of Corruption Act, 1947. The High Court Division has held that in the instant case, the issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the JVA'. The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. Begum Khaleda Zia VS= Anti- Corruption Commission, [3 LM (AD) 177] Section—109 Abetment Abatement is an offence under the Penal Code and a person may be charged for abetting an offence punishable under a special law even though the word ‘abetment may not be mentioned as an offence under the Special Act. Hussain Mohammad Ershad, former President Vs. The State, 14BLD(AD)178 Ref: 44 DLR (AD) 215; 33DLR 379; 17 DLR (SC) 261—Cited প্রধান অপরাধীকে যদি কোনও ধারার অধীনে শান্তি দেওয়া না হয়, তবে ওইসব ধারার অপরাধে সহায়তার জন্য শান্তি দেওয়ার প্রশ্নই ওঠে না। [মোঃ আলম বনাম রাষ্ট্র, ৫৪ ডিএলআর (২০০২) ২৯৮। Section 109, 111, 406, 420 It is a well-settled principle that a person who abets the actual perpetration of the crime at the very time when it is commit- ted is a principal of the second degree under section 109 of the Penal Code. This is applicable to the accused-importer. There is, however, no distinction between principal in the first degree' and 'princi pal in the second degree. Under section III of the Penal Code an abettor is liable for a different act if. Islami Bank Bangladesh Ltd. vs Muhammad Habib (Mohammad Gholam Rabbani J) Crminal) 2ADC 621 Section 114,148,149,302,307,325,326 At the time of trial if material (s) is placed before the Court and on consid cration thereof if the court feels that it will not be desirable in allowing the respondents on bail in the interest of jus- tice, the trial Court will be competent to make appropriate order as regard them. The State vs Md. Abdus Satter (M. M. Ruhul Amin J)(Criminal)2ADC 790 Section 120A and 120B- The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable.... (Surendra Kumar Sinha, J). ..... State VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Section 120A-Bazlu made the confessional statement after his arrest and that too after the alleged criminal cons- piracy culminated with the killing of deceased. So, the confessional statement of accused-Bazlu cannot be used as evidence against Mobile Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120A-Criminal conspiracy -Conduct of the accused both before and after the commission of offence is also relevant to prove the charge. No written or definite agreement is necessary to constitute a conspiracy-its existence being generally a matter of inference from the acts of the accused. It is sufficient to constitute the offence, so far as the combination is concerned, if there is a meeting of the minds, a mutual implied understanding or tacit agreement, all the accused working together, is with a single design, for the accomplishment of the common purpose. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120B-Criminal conspiracy -The circumstances before, during and after the occurrence about the complicity of the accused in the incident must be proved beyond shadow of doubt. The criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy for murder. Each one of the circumstances should be proved beyond reasonable doubt. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120B-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 120B- Criminal conspiracy It is well settled that in order to prove a criminal conspiracy which is punishable under Section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference agreement between two or more persons to commit an offence." (Per Md. Muzammel Hossain. J) Major Huda(Artillery)-VS-The Md Bazlul State (Banga Bandhu Murder Case), [9 LM (AD) 386] Section 120B- Criminal conspiracy- This Court observed that a conspiracy is a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose common between them. A criminal conspiracy consist not merely intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect the very plot of act itself, and the act of each of the parties capable of being enforced, if lawful, possible if for a criminal object or for the use of criminal means. The elements of criminal conspiracy are (a) an agreement between two or more persons, (b) to do an illegal act, or (c) to do a legal act by illegal means, and (d) an overt act done in pursuance of the conspiracy. A charge of criminal conspiracy for an offence under section 120B of the Penal Code, the prosecution need not prove that the perpetrators expressly agree to do or caused to be done the illegal act; the agreement may be proved by necessary implication. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581] Section 120B- Conspiracy or common design In criminal law a party is not generally responsible for the acts and declarations of others unless they have been expressly directed, or assented to by him; "nemo reus est nisi mens sit rea". This section, however, is based on the concept of agency in cases of conspiracy. Conspiracy connotes a partnership in crime or actionable wrong. A conspirator is considered to be an agent of his associates in carrying out the objects of the conspiracy and anything said, done or written by him, during the continuance of the conspiracy, in reference to the common intention of the conspirators, is a relevant fact against each one of his associates, for the purpose of proving the conspiracy as well as for showing that he was a party to it. Each is an agent of the other in carrying out the object of the conspiracy and in doing anything in furtherance of the common design." (Per S. K. Sinha, J) ...Major Md. Bazlul Huda (Artillery)=VS-The State (Banga Bandhu Murder Case), [9 LM (AD) 386] Section—120B Criminal Conspiracy Assembly at Bangabhaban on the occasion of oath taking ceremony took place after the occurrence of the previous night and the presence of the petitioner at Bangabhaban on the following day cannot by itself be a sufficient ground for even an inference for a criminal conspiracy. Her jubilation might be her husband but for that it cannot be said that she was in the conspiracy the result of moral support in the activities of her husband but for that it cannot be said that she was in the conspiracy. Mrs. Jobaida Rashid Vs The State, 17BLD(HCD)352 Ref: ‘Principles and Digest of the Law of Evidence’—By M. Monir; Queen Vs. Blake, 1844 6QB 126; 17 BLD (1997) 11; 17 BLD (AD)( 1997)54; 17BLD(AD)( 1997)163:2 BLC (AD) (1997) 75—Cited Section 120B— Jobaida’s jubilation might be the result of her moral support to the activities of her husband (leading to bloodshed and political change) but for that it cannot be said that she was in the conspiracy. Jobaida Rashid vs State, represented by the Deputy Commissioner, Dhaka 49 DLR 373. Criminal Conspiracy Petitioner's jubilation might be the result of moral support in the activities of her husband but for that alone it cannot be said that she was in the criminal conspiracy-Section. 120B Jobaida Rashid Vs. The State, 17BLD (HCD)366 Ref: 27 DLR (AD) 29; 37DLR (AD) 139; 7 BCR (AD) 143 Cited Section 120B and 302/34 – Criminal conspiracy leading to commission of murder when established can be punished with the same sentence as in the case of principal accused. When charge of criminal conspiracy and murder of two judges are proved by convincing evidence beyond shadow of all reasonable doubt the conviction of the convict-petitioners and sentence of death are held by the apex court perfectly justified. The convict-petitioners who are the top leaders of the JMB a perverted Islamic militant group admitted their participation in the criminal conspiracy leading to the commission of murder of two judges at Jhalakathi having been found guilty of the offence charged with and having found them a serious threat to the life and security of innocent people have been sentenced to death. The High Court Division accepted the death reference and Appellate Division found no fault with the conviction and sentence and dismissed their petitions for leave to appeal. Shaiakh Abdur Rahman & five others Vs. The State. 12 MLR (2007) (AD) 80. Hartal If an assembly of five or more persons takes a decision to observe hartal by them selves and their associates, then the decision does not come under the mischief of fifth clause to section 141 of the Penal Code. This decision does not contemplate holding of any procession or picket or any activity or activities to implement the decision. But if an assembly of five or more persons takes the decision to observe hartal to be participated by the people at large so that their common object is to compel others obviously by show of criminal force to do what they are not legally bound to do, then the said assembly must be an unlawful assembly according to fifth clause to section 141 of the Penal Code and the members of that unlawful assembly are liable to be punished under section 143 of the Penal Code Consequently the processions or other activities in support of or to force such hartal shall be unlawful assemblies. Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State Vs. Mr. Md. Zillur Rahman and others, 19BLD (HCD) 303 Sections—141, fifth clause and 143 If an assembly of five or more persons takes a decision to observe Hartal by themselves and their associates, then the decision does not come under the mischief of fifth clause of section 141 of the Penal Code. This decision does not contemplate holding of any procession or picket or any activity or activities to implement the decision. But if an assembly of five or more persons takes the decision to observe hartal to be participated by the people at large so that their common object is to compel others obviously by show of criminal force to do what they are not legally bound to do, then the said assembly must be an unlawful assembly according to fifth clause of section 141 of the Penal Code and the members of that unlawful assembly are liable to be punished under section 143 of the Penal Code. Consequently the processions or other activities in support of or to force such hartal shall be unlawful assemblies. Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State Vs. Mr Md Zillur Rahman and ors., 19 BLD (HCD) 303 Sections 143/326 Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed hail. Though some explanation has been given in the First Information Report but it can not be denied that for an occurrence alleged to have taken place on 03.08.2001 First Information Report has been lodged on 20.04.2002/ 05.05.2002. In the First Information Report it appears that allegations of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents - do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No.1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268 Section 143/326 Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed bail. Though some explanation has been given in the First Information Report but it cannot be denied that for an occurrence alleged ged to have taken place on 03.08.2001 First Information Report has been lodged on 20.04.2002/05.05.2002. In the First Information Report it appears that allegations of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No.1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268 Section 147/148/341/323/307/373/365 and 34 That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive sub- stances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are alleations against some other co-accused of assault, abduction and confinement of the informant but most of them are enjoying bail. That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dis missed. The State, Represented by the Deputy Commissioner VS. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267 Section 147— All the accused persons assembled to attack the informant. Though only one accused Abdul Khaleque attacked the informant, other accused are also guilty under section 147 because every member of an unlawful assembly is guilty irrespective of whether he had any overt act or not. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457. Section 147, 148, 149, 323, 324, 326, 302, 427/34 Consideration the fact that there are major contradiction and omission in the evidence of all the witnesses and that the prosecution have failed to prove the time, manner and also the place of occurrence by evidence and moreover the place of occurrence has also been shifted from the back of the pond to the courtyard of the house. Further, the trial court as well as the High Court Division failed to take into consideration that all the prosecution witnesses are closely related to each other and not a single impartial witness came to support the prosecution case at trial even regarding the prayer for bail. Samar Uddin vs The State (Md. Tafazzul Islam J) (Criminal) 3ADC 416 Sections 147/148/341/323/307/379/365 and 34 That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive sub- stances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are allegations against some other co-accused of assault. abduction and confinement of the inform- ant but most of them are enjoying bail. That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dismissed. The State, Represented by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267 Sections 148/302/34/324/325/326/323- Criminal justice system is that if a single witness can prove direct involvement of the accused person in commission of an offence and if the same is believed or other circumstances support the prosecution case then conviction and sentence can be imposed. ... State VS- Sarafat Mondol @ Mander Mondol. [8 LM (AD) 362] Section 148, 302/34, 326 Because the place of occurrence has been shifted and in this respect witnesses have contradicted themselves. ........investigating officer did not seize any blood stained earth nor any wheat plant to identify the place of occurrence. Habibur Rahman alias Habu vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 398 Section 148/302/34 Who were assaulted by the dacoits and that out of previous enmity the accused peresons have been implicated in the case falsely. P.W.1 Abdul Jalil, though an eye witness was told of the occurrence by the victim at the hospital and accordingly he lodged the First Information Report clearly mentioning the names of the petitioners and others. It appears that the trial court after con- sidering the evidence of eye-witnesses including P.Ws. 2,3 and 4 passed the impugned judgment and convicted the petitioners. The High Court Division in its turn found them guilty in consideration of evidence on record. However consider- ing the facts and circumstances of the case the High Court Division took a lenient view and altered the judgment of conviction and reduced the sentence of the petitioners. There is nothing to inter- fere. Md. Asgar Ali alias Asgar and oth- ers vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 897 Sections 148/304/34 – Charges against several accused need to be proved by specific evidence – When there is sharp contradiction in between the medical evidence and the ocular evidence as regards the number of injuries alleged to have been inflicted on the person of the deceased and the conviction and sentence are based on omnibus statements of the witnesses, the learned judges held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. the State 12 MLR (2007) (HC) 202 Section 148— If both parties are found to have committed offence under section 148 of the Penal Code none of them is entitled to be acquitted on the ground that the other is the aggressor and in this respect law spares none. Bachu Miah vs Samad Miah and others 50 DLR 564 Section 149— The two accused had no premeditation to kill the victim and as such the application of section 149 for tagging them to face trial on murder charge appears to/be illegal. State vs Khalilur Rahman 48 DLR 184. Section 148 & 307 r/w 149- Motive does not have to be established where there is direct evidence- The High Court has not at all dealt with the direct evidence of PW-1 and given the fact that such evidence has stood the test of cross-examination, we are constrained to observe that the view taken by the High Court is not a possible view and we therefore set aside the acquittal of the five accused persons and restore the conviction and sentence imposed upon them by the Trial Court. The respondents are directed to surrender before the concerned Court within a period of two weeks from today to serve out the remainder of sentence imposed by the Trial Court. ......Rajagopal =VS= Muthupandi, [3 LM (SC) 77] Section 149, 148, 149, 323, 302, 447 That in case of any Judge of Magistrate or a public servant, nor removable from his office save by order or with the sanction of the Government, being an accused of any offence, while acting in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Government. We like to observe that the two petitioners being members of the Police establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and as such, in our opinion, they were rightly served by the learned Additional Sessions Judge sentencing them to death and so no lenience ought to have been shown to them. A. S. 1. Md. Ayub Ali Sardar vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 663 Section—149 For applying section 149 of the Penal Code against an accused, three conditions must be fulfilled: (a) the accused must have been a member of the unlawful assembly at the time the offence was committed; (b) the offence must have been committed in prosecution of the common object, or (c) the offence must be such as the members of the assembly knew likely to be committed in prosecution of that object. Before applying section 149, the Court must have indubitable evidence that the members of the unlawful assembly constituted the statutory number of five, though some of them might not have been named, or identified, or brought to trial. Rafiqul Islam Vs. The State, 13BLD (AD)11 7 Ref: A.I.R.1953 SC 364; 1969 SCMR 537; AIR 1960 SC(290); AIR 1963 SC 174; AIR 1974 Sc 1567; A1R1975 SC 1917 (1921 and 1922); AIR 1978 sc 1233—Cited Section 149— When a particular offence is committed by an individual member of the unlawful assembly, which was neither done in prosecution of common object of the assembly nor other members of the assembly lenew that the offence would be committed, other members of the assembly/cannot be held liable for the offence. The word “likely”, in the later part of section 149 of the Code means some clear evidence that an unlawful assembly had such a knowledge. In view of other offenses committed, such as criminal trespass and assault, it is difficult to hold that all the appellants are consecutively liable under section 149 of the Code when Appellant No. l Abdus Sattar alone struck a Katra blow on the right side of the chest of deceased which proved fatal and, strictly speaking, section 149 of the Penal Code is not attracted in this case. There being overwhelming evidence of inflicting Katra blow on deceased Aminul Huq by Appellant No. l, the appeal in respect of Appellant No. l Abdus Sattar is dismissed and his conviction and sentence under sections 302/149 of the Penal Code is altered to section 302 of the Penal Code and his sentence of imprisonment for life is maintained. Abdus Sattar and others vs State 46 DLR (AD) 239. Sections 161 and 165A-In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True, the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. Mia Nur- uddin (Apu) vs State, 68 DLR (AD) 290 Sections 161 and 167-Criminal misconduct- Section 5(1) of the Act defines criminal misconduct. Charge does not refer to misappropriation of money, but the words "above mentioned acts" contained in the charge necessarily imply the offence of criminal breach of trust. The charge specifically refers to the offences under sections 161 and 167 of the Penal Code. Mostafa Kamal vs State, 66 DLR 534 Section 161- A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications demands, thereby, or erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir. [3 LM (AD) 509] Section 161 – Laying trap to catch hold of the accused red handed while taking bribe. Anti-Corruption Commission Rules, 2007 Rule 16 – To lay and conduct trap to catch hold of an accused red handed and the requirement of the officer so conducting trap to be empowered by the Anti-Corruption Commission. To empower an officer by the Commissioner in charge of investigation to lay trap and conduct the proceedings as required under rule 16 of the Anti- Corruption Commission Rules, 2007 is the mandatory requirement of law. In the absence of such empowerment or authorization the learned judges held the proceedings illegal and abuse of the process of the court and as such quashed the same. Rezaul Kabir (Md.) State and another 14 MLR (2009) (HC) 482. Section 167-In order to convict the accused under section 167 of the Code, the prosecution must prove that the accused was entrusted with preparation of the document in question. The prosecution did not produce any document before the Court in order to support the charge. There is no incriminating evidence or circumstances to sustain the conviction under section 167 of the Code. Mostafa Kamal vs State, 66 DLR 534 Section 182, 195- An accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio Laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio. The prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above. The appeals succeed and are allowed. Impugned orders stand set aside......Saloni Arora =VS= State of NCT of Delhi, [3 LM (SC) 80] Telephonic Call Allegation of giving instruction over telephone cannot be the basis of a proceeding against the petitioner under section 186 of the Penal Code. Even if there is any statement of the Superintendent of Police to the effect that he received a telephonic call from the petitioner such evidence cannot be the basis of implicating the petitioner in the case because the identity of the caller cannot be proved and as such the proceeding cannot proceed against the petitioner. Continuation of the proceeding shall be abuse of the process of the Court. Major General (Rt.) Mahmudul Hasan Vs The State, 20BLD (HCD) 341 Written complaint It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation of the order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code. Abdul Ahad @ Md Abdul Ahad Vs. The State, 20BLD(HCD)372 Section—188 It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code. Abdul Ahad @ Md Abdul Ahad Vs The State, 20 BLD (HCD) 372 Section 193— If a court finds that any witness committed an offence under section 193, the court is to proceed in accordance with the provisions of section 476 of the Code of Criminal Procedure because the offence under section 193 is included in section 195(l)(b) of the Code. Idris Miah (Md) vs State 50 DLR 629 Section 199 and 200 Declaring that the election of the Jhalakathi Pourashava has been vitiated as a whole and consequently cancelling the Gazette notification declaring the appellant as elected to the aforesaid post. Once the election process has been start- ed, moreso, when in the instant case election result has been published in the official gazette the High Cough Division has no jurisdiction under Article 102 of the Constitution to enter- tain any matter relating to election unless there is corum-non-judice or mal- ice in law as decided by the Court. It has been settled long ago that disputed ques- tions of fact are outside the jurisdiction of disposal of an application under Article 102 of the Constitution. Abdul Halim Gazi vs. Afzal Hossain and others (Amirul Kabir Chowdhury J) Civil) 4ADC 195 Section 199, 200 The claim of the respondent No. 1 that the appellant is a bank loan defaulter has been persistently denied by the appel- lant and the matter is pending before the superior Courts and thus we do not find that there exits such a clear case capable to be decided at the micro-level on the interpretation of the relevant law. Abdul Halim Gazi & Bangladesh, Dhaka vs Afzal Hossain (Amirul Kabir Chowdhury J(Civil) 2ADC 533 Penal Code, 1860 Section—201 To sustain a charge U/s 201 of the Penal Code it is essential to prove that an offence has been committed and that the accused knew or had reason to believe that an offence has been committed and with the requisite knowledge and intent to screen the offenders from legal punishment causes the evidence thereof to disappear or gives false information in respect of such offence, knowing or having reason to believe the same to be false. Khandkar Md. Moniruzzaman Vs.The State, 14BLD(HCD)308 Ref: 35 DLR (AD) 127; 18 DLR(SC)289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR238; 45DLR386; 30DLR58; 1984 B.C.R. 231; P.L.D. 1978 Lahore 1285—Cited Section 201, 409, 467, 468 Important part of the evidence of such important witness has not been denied nor even there is any cross-examination on that point. There is nothing on record to disbelieve the evidence of wit- nesses including aforesaid P.W. I. On perusal of the impugned judgment we find that the trial court as well as the High Court Division considered the evi- dence on record and pass the impugned judgment and order. Mahbubur Rahman vs The State (Amirul Kabir Chowdhury) (Criminal) 3ADC 578 Section 201/34, 302/34 In view of positive evidence that the blood stained lungi was that of accused Zahirul Alam Kamal, according to us, he cannot be absolved of the responsi bility of murder of Chapa. Regarding two other accused respondents however we do not find any such incriminating element to connect them with the mur- der though they, as well, are found responsible for causing disappearance of the evidence. In such view of the matter we feel inclined to give benefit of doubt to the two other respondents Nasiruddin Jamal and Zillul Bari so far as the charge against them under Section 302/34 of the Penal Code is concerned. They however cannot be absolved of the charge under Sections 201/34 of the Penal Code. The State vs Khandker Zillul Bari (Amirul Kabir Chowdhury J)(Criminal)2ADC 525 Disappearance of Evidence To sustain a charge under section 201 of the Penal Code the prosecution must prove that the accused knew or had reason to believe that an offence has been committed and with the requisite knowledge and intent to screen the offender from legal punishment causes the evidence thereof to disappear or intentionally gives any false information in respect of such offence-Penal Code; S. 201 Khandker Md. Moniruzzaman Vs. The State, 14BLD(HCD)308 Ref: 35 DLR (AD) 127; 18 DLR (SC) 289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR, 238; 45 DLR 386; 30 DLR 58; 1984 B.C.R.231; P.L.D. 1978 Lahore 1285-Cited Section 201— Since both the condemned prisoners are sentenced to imprisonment for life there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. State vs Hamida Khatun and another 50 DLR 547 Sections 202— The accused committed an offence punishable under section 202 of the Penal Code for not giving the information about the offence either to the nearest Magistrate or to the police station. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Section 279 Section 279, 337 and 338- It would be harsh to send the appellant to the Jail after 18 years of the occurrence. It appears that appellant was throughout on the bail. The conviction of appellant is affirmed, however, looking to the facts and circumstances of the present case specially the fact that 26 years have elapsed from the incident, we are inclined to substitute the sentence of six months imprisonment under Section 279 and 338 into fine. Six months sentence under Section 279 and 338 IPC are substituted by fine of Rs.1000/- each whereas sentence of fine under Section 337 IPC is maintained. ...Surendran -VS- Sub- Inspector of Police, [10 LM (SC) 21] Section—295A Deliberate and malicious acts, either spoken or written, or by visible representation intended to outrage religious feelings of any class of citizens constitute an offence under section 295A of the Penal Code. Dr. Homeo Baba Jahangir Beiman –al-Shuresari Vs. The State, 16BLD(HCD) 140 Ref: 40 DLR 359, 1993 B.L.D. 45; 7 DLR (WP) 17 (F.B); 8 DLR (FC) 110; S.C.C. Vol.IV, 213—Cited Section—295A Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs Section 295A of the Code on its language is applicable to those insults to religious beliefs which in addition to being deliberate and malicious are intended to outrage the religious feelings of the followers of that religion. After going through the publication very carefully and meticulously as to its entirity the High Court Division held that the same has not been written or published with any intention to hit the religious feeling or sentiments of the Muslims, rather, it was written against the narrow interpretation or distorted meaning given or spread out in our country, specially, by less educated and half educated fanatic religious Mollas and Islamic Fotowabaj. Reading of the entire caption and publication establishes that its inner or real meaning is not at all intended to hit the feeling of any Muslim or to distort the meaning of the said Sura of the Holy Quaran. Shamsuddin Ahmed and others Vs The State and another, 20 BLD (HCD) 268 Ref: “Jesus In Heaven on earth” and Working Muslim Mission and Literary Trust, Lahore, and of Civil and Military Gazette, Limited Vs. The Crown, 7DLR(W.P.C. Lahore) 17—relied Sections 299 & 300— When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention. State, represented by the Solicitor to the Governemnt of the People’s Republic of Bangladesh vs Ashraf Ali and others 46 DLR (AD) 241. Sections—299 and 300 Mere killing of a person or mere causing of a person’s death is not murder or a culpable homicide but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in section 299 as “culpable homicide” and four classes of cases have been described in section 300 as “murder”. The essential difference between mere “culpable homicide” and “murder” is the degree of probability of causing death. When death is probable, it is culpable homicide but when death is most probable, it is murder. The State Vs. Ashraf Ali and others, 14BLD (AD)127 Culpable Homicide In the case of Muhammad Saleh (ibid), accused Muhammad Saleh woke up in the night of occurrence for observing fast and did not find his sister Mst. Gulen on her cot. He went outside and found her having intercourse with one Loung Khaskheli in a wheat field. Instantly he killed both of them by repeated hatchet blows. Then he approached the police station and stated the whole incident to a Sub-Inspector of Police. On the following day at about 10-00 am he made a confession before the Magistrate of First class. At trial he reiterated the occurrence to have been done by him and affirmed the confession. In evidence it was also found that Gulen's whole neck was cut through and her partner Loung had received five blows, one on head, another on neck, two on left arm and one over the fore-arm. Trial Court convicted the accused under section 302 of the Penal Code rejecting the plea of grave and sudden provocation. The High Court of West Pakistan affirmed the conviction, challenging which the accused-appellant took the matter to the then Supreme Court of Pakistan. The Supreme Court altered the conviction to section 304 part 1 of the Penal Code. In the said case Cornelius, CJ speaking for the Court observed: "Under village conditions and even in many other parts of society in this country, the right of the male members of a family to control the actions of their woman-folk, particularly in the field of sexual relations, is fully recognised and is forcefully maintained. The idea that a young unmarried girl in a village family is entitled to leave her bed during the night and go where she pleases, and that a male member of the family going in search of her is only asking for provocation if he finds her misbehaving in a sexual way, simply cannot be entertained. The taking of a hatchet can be explained by the fact that it was still dark, that is, for self-protection, and it may be the accused expected to have to chastise his sister for misbehavior if that was found. But upon the admissible evidence in this case, there is no ground for thinking that the appellant expected to find his sister in an act of intimacy with a stranger. He must be allowed, on the evidence, the benefit of a shock, on making the discovery, such as is fully recognized in law as furnishing grave and sudden provocation within the meaning of exception 1 to section 300 of the PPC sufficient to cause loss of self-control." (Paragraph 5) [17 DLR SC 420] Section 300,304 In the instant case there is no evidence from the prosecution side that the accused had the knowledge of the trial condition of Golok. We can now conclude that the incident took place upon a sudden verbal quarrel and in the heat of passion the two brothers gave blows on the chest of Golok without any guilty intention to cause the death and thus they committed culpable homicide not amount- ing to murder. Nibir Chandra Chowdhury vs The State (Mohammad Gholam Rabbani J) (Criminal)2ADC 169 Section 300 Criminal act of causing the death of the victim does not fall within any of the four categories of the criminal acts, which constitute murder as stipulated in section 300 of the Penal Code. [73 DLR (2021) 502] Sections—300 and 304 Part—I When it is clear from the evidence that the free fight between the parties took place following an altercation it stands out that death of the victim was caused without any premeditation in a sudden fight in the heat of passion and without the offenders having taken undue advantage or acted in a cruel or unusual manner. This attracts Exception 4 of section 300 of the Penal Code and brings the case U/s 304 part 1. Abul Kalam Azad Vs. The State, 14BLD (HCD) 401 Ref: PLD1950 (Lahore)90; 14BLD (1994) 33; 40DLR443—Cited. Litigation Litigation existing between accused and some of the witnesses is not enough to bear grudge by the accused so as to commit the offence of murder, rather such litigation sometime can be taken as a cause for false implication. Malal Miah Vs. The State, 13 BLD (HCD) 277 Sections 300 & 304- A prisoner sentenced to imprisonment for life has no right to claim remissions, inasmuch as, the remissions are available to a prisoner in the nature of privilege. After conviction a prisoner cannot claim any right of remission other than a right of appeal and in the appeal he can claim acquittal or the alteration of the conviction or sentence which is permissible by law. In case of murder if the convict's case covers any of the exceptions enumerated in section 300, his conviction may be converted to part 1 or part II of section 304 or he may be acquitted. Except in those three circumstances, a convict undergoing life sentence cannot claim any other right. ... Ataur Mridha =VS= The State, [3 LM (AD) 513] Section 300-Since offence of murder punishable under section 302 of the Code was carried to the door of convict- appellants they can be very much convicted for offence of section 302 of the Code and, as such, we convert the offence of section 9(3) of the Ain to offence of section 302 of Code. State vs Bidhan Chandra Roy, 66 DLR 500 Section 300- Clause 4th and 302- Whether a series of acts are so connected together as to form the part of the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formula of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction. The circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. A transaction may be continuous one extending over a long period and two places. The expression "part of the same transaction" must be understood as including both immediate cause and effect of an act or even also its collocation or relevant circumstances. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 302 Sections 302/34- Sentence of death- The appellant is a threat to law and order and a menace to society. He would do away with anyone, who stands for upholding law and order. In view of the way the victim was murdered, we do not find that the sentence of death is at all disproportionate to the crime alleged. We, therefore, do not find any illegality or infirmity in the judgement and order of the High Court Division confirming the sentence of death. Kamal alias Exol Kamal -VS- The State, [4 LM (AD) 369] Sections 302/35 r/w sections 34 & 304- High Court Division fell in an error in finding the accused guilty under sections 302/35 and it committed further error in awarding imprisonment for life to all the accused. If section 35 attracts, their sentences will be different. The conviction of the appellants is altered to one under section 304, part I read with section 34 of the Penal Code, and thereby he is sentenced to 12 years rigorous imprisonment with a fine of taka fifty thousand each to be paid within three months from date, in default, to suffer rigorous imprisonment for two years more. The fine if realized would be paid to the victim's widow or in her absence to the children. The appeals are dismissed with the above modification of the conviction and sentence....... Khalil Peada -VS- The State, [4 LM (AD) 374] Section 302/34- It is our opinion that the evidence of the two eye witnesses in respect of complicity of accused Kajal, son of Ansar Ali cannot be relied upon to sustain his conviction, and, accordingly, the appellant is liable to be acquitted. ..... Palash State, [3 LM (AD) 587] VS= The Section-302/34- Commute the sentence of death- The appellant Alam Sheikh of Criminal Appeal No.43 of 2012 has been in condemned-cell since 22.02.2005, that is, more than 11 years. The P.C. and P.R. of the appellant Alam Sheikh are nil and as such, he was not a habitual offender. Considering all aspects of the case, we are inclined to commute the sentence of death of imprisonment for life. The State, [3 LM (AD) 595] Salim =VS= Sections 302/34- The evidence of the prosecution witnesses have been corroborated fully by the own confessional statements of these condemned prisoners which have been found voluntary and true by both the trial court and the appellate court. Shahid Ullah & others =VS= The State. [1 LM (AD) 595] Sections 302- The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that pre- plan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law......Shahid Ullah & others VS The State, [1 LM (AD) 595] Section 302/34 In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate. Sohel Dewan =VS= The State & another. [1 LM (AD) 497] Sections 302/34- Commuted death sentences to imprisonment for life- Druto Bichar Tribunal Case No.22 of 2005 convicting the accused -respondents herein and others under sections 302/34 of the Penal Code and sentencing them there under to death. The High Court Division reason commuted their death sentences to imprisonment for life. The High Court Division has clearly stated the reason of commuting the death sentences to imprisonment for life. The High Court Division has stated to the effect that since the age of the appellants (the convicted respondents herein) were not that much and they had just attained the age of majority they (the learned Judges) found it justified to commute the sentences of death to imprisonment for life. We find no reason to interfere with the above observation and decision of the High Court Division. The State VS Saifullah Al-Mahmood Tanvir & others, [1 LM (AD) 5011 Section 302-Murder Husband obli- gation to explain-Ordinarily the accused has no obligation to account for the death for which he is placed for trial. The murder having taken place while the accused was living with his wife in the same house, then the accused husband under section 106 of the Act, is under obligation to explain how his wife had met with her death. In absence of any explana-tion coming from his side it seems, none other than the accused husband was responsible for causing death. State vs Md Hasibul Hasan, 64 DLR 291 Section 302-Since the accused brought to the notice of the Sessions Judge about the insanity of the accused right from his beginning, the Sessions Judge should have obtained opinion from professional person before giving the decision that the accused was not insane. In any view of the matter, the Sessions Judge should not have proceeded with the case and recorded the evidence of the prosecution witnesses before giving decision on the point of insanity of the accused. State vs Md Sajjad Ali, 67 DLR 161 Section 302-In sentencing process, two important factors come out which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and court responded to the society's cry for Justice. State vs Bidhan Chandra Roy, 66 DLR 500 Section 302-Under section 302 of the Code, though discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice. State vs Bidhan Chandra Roy, 66 DLR 500 Section 302-Before holding the trial news paper publication was made regarding the absconding accused and that news paper publication is lying with the record. After arrest by the police, convict was sent to Jail, wherefrom he filed the Jail Appeal putting his signature in the Vokalat- nama. The signature of convict in his Vokalatnama and the signature put in the admit card are same and identical and, as such, there is no doubt that the admit card belongs to convict. State vs Jabed Jahangir, 66 DLR 579 Section 302-The prosecution miserably failed to prove the case of dowry. So no case was proved under section 11(ka) of the Ain rather it has proved the case of murder under section 302 of the Penal Code. Invoking Article 104 of the Constitution, the sentence should be altered to imprisonment for life under section 302 of the Penal Code instead of death under section 11 (ka) of the Ain, 2000. Anarul @ Anarul Huq vs State, 67 DLR (AD) 172 Section 302-The High Court Division has stressed much on the question of abscondance of the petitioners. This is not a legal ground to award the extreme sentence. Though section 302 provides a death sentence which is a rule, a sentence of death being the forfeiture of life of a person, the court is always alive to see whether there is any extraneous ground to commute the death sentence to life, Court always keep in mind the nature of the offence perpetrated by the accused persons, the motive of the offender in the commis- sion of the murder, the aggravating circum- stances, the enormity of the crime and the mitigating circumstances. In cases where the murder is so cruel or beastly manner or cold blooded planning or gruesome and so on, capital sentence is the proper one and the court is justified in awarding the death sentence. Mohibur Rahman vs State, 69 DLR (AD) 330 Sections 302/109-Though accused- Mobile Quader was not charged under sections 302/109 of the Penal Code, in view of the provisions of section 535 of the Code, we do not find any legal difficulty in finding him guilty under the sections and convicting and sentencing him thereunder as there are abundance of evidence against him to warrant the conviction under the sections. Moreso, we do not see any prejudice to be caused to accused-Mobile Quader for non framing of charges against him under sections 302/ 109 of the Penal Code by the Tribunal as he got all the opportunities to defend him by cross-examining the prosecution witnesses. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Sections 302/201/34-If the offences under the Ain, 2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed. Sohel Rana Shippon (Md) vs State, 66 DLR (AD) 160 Sections 302 and 304 Part I-It is an appropriate case where the offence under section 302 of the Penal Code is liable to be turned into an offence under section 304 of the Penal Code and the factual aspects of the case lead us to believe that the sentence of death as awarded by the trial Judge is liable to be commuted to the imprisonment for life under the purview of section 304 Part-I of the Penal Code. State vs Md Sukur Ali, 68 DLR 155 Sections 302 and 362-Crime against humanity-There is no doubt that the trial is without jurisdiction but, by the same time, it cannot be ignored that the act committed by the appellants is barbarous one. Their act shakes the conscience of the people at large. The act of the accused is not only a crime against humanity but also barbaric, (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DER (AD) 111 Sectoin-302/201/34- Circumstantial evidence It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses. Such circumstances are totally absent in this case, particularly when the story of administering poisons is found to be doubtful...... Haji Mahmud Ali Londoni VS The State, [1 LM (AD) 505] Sections 302 & 109- In view of the evidence the Appellate Division held that the appellant could not be solely saddled with the "short gun fire injury on the deceased, Abdur Rakib" resulting in his death, particularly when the other accused had also guns and they fired from their guns as well. In view of the matter, the High Court Division took the right decision in affirming the sentence of death awarded to the appellant. Appellate Division is of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine....... Momtaj Ali @Babul VS= The State, [1 LM (AD) 557] Section 302/34 The prosecution failed to prove the case against the appellants beyond reasonable doubt- The prosecution having totally failed to prove the case against the appellants beyond reasonable doubt the Courts below erred in law in relying upon such unfounded and uncorroborated evidence and also on the testimony of the hostile witnesses as well as upon the other evidence, uncorroborated on material particulars, which are beyond the principle of criminal justice system. As such the decision convicting and sentencing the appellants on such unfounded evidence is not sustainable in law. Hence we find merit in this appeal. The judgment and order of conviction and sentence, passed by the Court of Sessions as well as by the High Court Division against the present appellants, are set aside. The appellants are directed to be released forthwith from custody, if not wanted in connection with any other case. ..... Humayun Kabir -VS- The State, [5 LM (AD) 214] Sections 302/34/114- A single testimony if convincing and found to be full, complete and self contained, whether corroborated by other witness or not, is sufficient to bring home the charge and as such there will be no illegality in convicting an accused on the basis of such single evidence. The doctor who conducted the post mortem, the High Court Division categorically found that the charge against the condemned prisoner Jharu and Mokim have been proved and accordingly found them guilty for conjointly killing the victim Monowar Hossain at the courtyard of the house of Badal Sarder. After making elaborate discussions on the basis of the fact and law the High Court Division ultimately accepted the death reference against Mokim and Jharu and thereby affirmed the sentence imposed upon them. We are of the view that the condemned prisoner appellants Jharu and Mokim failed to make out a case in their favour by which the judgment and order of conviction and sentence passed by the trial Court and affirmed by the High Court Division can be interfered with. We do not find any merit in this appeal. Hence the jail appeal is dismissed. The State, [5 LM (AD) 233] Jharu =VS= Sections 302/34- PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel- We find from the impugned judgement that the High Court Division has correctly analysed the evidence and materials on record. Clearly the death-blow was dealt to the prosecution case by the fact that the only eyewitness, namely PW 9 stated to the informant PW 1 that some unknown miscreants committed the offence. The High Court Division correctly observed that at the earliest point of time PW 9 did not disclose the names of the accused to any high official, doctor or locals who were present in the hospital nor disclosed any material facts either to the investigating officer or any police personnel. We do not find any infirmity in the judgement of the High Court Division with regard to the respondents in Criminal Appeals No.61-62 and 64 of 2015. ... State VS Md Zakir Hossain, [6 LM (AD) 260] Section 302- Death Sentence: Indian Context- Since the eclipse of the British suzerainty in 1947, Indian law and practice on death sentence went through periodic evolution. While Section 302 of the substantive law, i.e., the Penal Code has remained static in allowing discretion in imposing either death sentence or life imprisonment, the abjective law, i.e., the Code of Criminal Procedure (Cr.P.C.) made all the differences. Uptil 1955, death sentence was the rule while life imprisonment stood as exception, because the British made Cr.P.C. of 1898, required the Court concerned to assign reason when it opted not to pass death sentence. During the period between 1955 and April 1974, the amended Cr.P.C. removed the requirement of assigning reason in either case, leaving it to the Court's discretion, and the judicial view was that death sentence remained the Rule while life term, an exception. In 1973, Indian Parliament resolved to deface the made in UK Cr.P.C. and instead go for a home baked one. Under the new Cr.P.C. (of 1973) regime a Court in passing a death sentence is obliged to assign "special reason" (Section 354(3). Indian Supreme Court maintains that the implication of the new regime is that life imprisonment is now the rule and death sentence exception (Abraham-v-State of MP, AIR 1976 S.C. 2196). Indian Parliament, however, found no reason to abolish death penalty, and tacitly lent support to the view, Lord Macaulay's team expressed, when they inserted Section 302 in the draft Penal Code in 1860, which was in following terms; "First among the punishment provided for offences by this case stands death. No argument that has been brought to our notice has satisfied us that it would be desirable wholly to dispense with this punishment. But we are convinced that it ought to be very sparingly inflicted; and we propose to employ it only in cases where either murder or the highest offence against the state has been committed". Indian Supreme Court also rejected the contention more than once that death sentence is ultravires the Constitution (in Jagmohan-v-State, AIR 1973 S.C. 947, before 1973 Cr.P.C. and in Bachan Singh- v-State of Punjab, AIR 1980 S.C. 898, Alauddin Miah-v-State of Bihar, AIR 1989 S.C. 1456, Swami Sharddananda (2)-v- State of Karnataka, (2008) 13 S.C.C. 767, (post 1973 Cr.P.c.) In interpreting Section 354(3) of the new Cr.P.C. Indian Supreme Court ordained in Bachan Singh-v-State of Punjab (1980) 2 S.C.C. 684 that the new Cr.P.C. means that death sentence can only be imposed in "rarest of the rare cases". Until 01.04.1974 the law as regards sentencing a person found guilty of murder, was no different from ours. In propounding the "rarest of rare" theory a Constitution Bench of the Indian Supreme Court, rejecting however the plea that the law allowing death sentence was repugnant to constitutional mandate, expressed in Bachan Singh - V-State of Punjab (1980 2 SCC 684) that legislative policy in Section 354(3) of the 1973 Code is that for a person convicted of murder, life imprisonment is the rule and death sentence, an exception, and mitigating circumstances must be given due consideration. The Supreme Court also ordained that a balance between aggravating and mitigating circumstances must be struck. "Rarest of rare" theory came up for Supreme Court's holistic scrutiny shortly after that Court innovated this principle in Bachan Singh in 1980. It was the hall mark case of Manchi Singh-V-State of Punjab (1983 3 SCC 470). In elaborating this theory the Supreme Court surmoned that for practical application the "rarest of rare" principle must be read and understood in the background of the five categories of murder cases enumerated in it, and thus finally standardised and classified the cases, from which two Constitution Benches, (in Jagmohan and Bachi Singh) resolutely refrained from in the past. In quick succession Machhi Singh-V-State of Punjab came up before the Indian Supreme Court with an inundation of onerous task of penological dissection on sentencing in murder cases. Unlike Bachan Singh, vires of death sentencing provision was not challenged, it was a normal appeal case. In Manchi Singh, affirming capital punishment, the Supreme Court put itself in the position of the community and observed that though the community revered and protected life because the very humanistic edifice is constructed on the foundation of reverence for life principle, it may yet withdraw the protection and demand death penalty (page 487-89, para 32-37), keeping, nevertheless, in mind, the "rarest of rare matrix propounded in Bachan Singh. The Apex Court observed, "32. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the Judicial Power Centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti social or abhorrent nature of the crime, such as, for instance: 1. Manner of commission of murder. 33. When the murder is committed in an extremely brutal, grotesque, diobolical, revolting or dastardly manner so as to arose intense and extreme indignation of the community. For instance, i) when the house of the victim is set aflame with the end in view to roast him alive in the house, ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death, iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. 11. Motive for commission of murder 34. when the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward, (b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or position of trust, or (c) a murder is committed in the course of betrayal of the motherland. 111. Anti Social or socially abhorrent nature of the crime. 35. (a) when murder of a member of a schedule cast or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance. (b) In cases of "bride burning" and what are known as "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. IV) Magnitute of Crime. 36. when the crime is enormouse in proportion. For instance when multiple murders, say all or almost all the members of a family or large number of persons of a particular caste, community or locality are committed. V. Personality of victim of murder; 37. when the victim of murder is (a) an innocent child who could not have, as has not provided even an excuse, much less, a provocation for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons". It will emerge from the following discussions that the number of "rarest of rare' case have by no means remained in shallow captivity. The list is quite a flared one. (Paras:1010-1022); ... Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] Section 302- Culpable homicide is not murder If the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without pre- mediation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner- The High Court has evidently ignored the evidence, bearing upon the nature of the incident. The death was attributable to the assault by the respondent on the deceased, during the course of the incident. Having regard to the above facts and circumstances of the case, it is evident that the injury which was caused to the deceased was [within the meaning of Section 300 (Fourthly)] of a nature that the person committing the act knew that it was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. We are affirmatively of the view that the judgment of the High Court is manifestly perverse and is totally contrary to the evidence on the record. The interference of this Court is warranted to obviate a complete failure or miscarriage of justice. We allow the appeal and while setting aside the judgment of the High Court, restore the conviction of the respondent by the Trial Court under Section 302 of the Penal Code. The respondent is sentenced to suffer imprisonment for life. The respondent shall forthwith surrender to his sentence....State of Rajasthan =VS= Leela Ram @ Leela Dhar, [6 LM (SC) 118] Section 302/201/34 The High Court Division committed error of law in upholding the conviction and sentence of the petitioners of the basis of confessional statement of accused petitioner Zinnah Sheikh but the so-called confession was exculpatory in nature as the prosecution failed to adduce any corroborative witness in support of the so-called confessional statement; it is argued that without corroborative evidence the confession of a co-accused Exhibit-4 cannot be used against other accuseds and as a result there has occasioned serious failure of justice. Mazid Sheikh @ Mazid vs The State (Syed J.R. Mudassir Husain J) (Criminal)3ADC 62 Sections 302/148/149 The accused on dock were examined under Section 342 of the Code of Crim- inal Procedure to which they pleaded not guilty and repeated their innocence. The defence did not however examine any witnesses on their behalf. The State vs. Abdul Kashem Member (Md. Has- san Ameen J) (Civil) 6 ADC 88 Section 302/34 We have already found earlier that the prosecution has been able to prove the presence of the accused appellants in the early morning near a 'Pan Boroj' where there is no locality. So, in all fairness it can be said that the prosecution case has been able to prove the assembly of the accused appellants for murdering the deceased. There is no explanation as to why the accused appellants assemble by the side of a village path way in odd hours of the day. Srwardi Shaikh vs The State (Syed JR Mudassir Husain J) (Criminal) 3ADC 66 Section 302/34 It appears that the learned Judges having properly discussed and considered the prosecution witnesses came to the finding that the petitioner Mostafa inflicted 'Falah' blow on the chest the victim Habibur Rahman with intention to kill him and the victim Habibur Rahman fell down on the ground and died on the spot then and there. Mostafa alias Mosto vs The State (Sved J. R. Mudassir Husain J) (Criminal) 3ADC 179 Sections 302, 201/34 The right question the High Court Division as required to ask itself was whether the circumstances proved in the case were incapable of any other hypothesis than that of the guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt against the accused or not. The State vs Khandker Zillul Bari& Zahirul Alam Kamal (Amirul Kabir Chowdhury J) (Criminal) 3ADC 253 Section 302/34 Failure of the prosecution to prove the motive as imputed by it will have no impact in the facts and circumstances of the case. Yogashwar Gope vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 400 Section 302 It is not safe to base conviction on retracted confession alone without coroboration in material particulars in sup- port of the guilt of the accused in the instant case and the P.W. I Md. Abdur Rahman father of deceased Rubel at the time of lodging First Information Report did not suspect any body in the killing of Rubel and Mantu and P.W.3 Jebunnessa, who deposed in the Court that she found the appellant fleeing away by crossing boundary wall of Rubels house did not make such state- ment before Investigation. Md. Golam Murtuza @ Isphi vs The state (Syed J. R. Mudassir Husain J) (Criminal) 3ADC 407 Section 302/149 P. O and manner of occurrence in court one year three months after a complete departure was introduced from the case in first information report dying declaration and charge sheet the courts below ought to have disbelieved the prosecution case and acquitted the accused appellant due to blatant and a total change of P. O and manner of occurrence which are far flung and irreconcilable and the change is stock lock and barrel. Farukur Rahman @ Farook (2) vs The State (Syed J.R. Mudassir Husain J) (Criminal)3ADC 411 Section—302 In a case where two persons have been murdered at dead of night, it is but natural to inform the police first about the occurrence. Non-mentioning of any name in the F.I.R. rings a truth in the F.I.R. Shahjahan Sardar and others Vs. The State 13BLD(AD)58 Section 302/34 ...of evidence given by a Hostile with A witness even if he is declared hostile, the whole of his evidence affect ing the parties, favorably of unfavorably should be considered and that if the evidence of the hostile witness fits in with the attending circumstances it may be accepted and considered along with other evidence. Abdur Rouf Sarder vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 585 Section 302/34 There is allegation against the accused respondent who is the principal accused and against others of firing gun shots and thereby murdering the deceased husband of the informant who was a popular Ward Commissioner and thus there is allegation of involvement of the accused respondent in the commission of the said sensational murder of late Ward Commissioner Shaukat Ali and as the case is still being investigated with allegation of threat and tempering with the evidence/witnesses his bail should be cancelled and the ought to remain in custody for securing the ends of justice. Runu Akhter vs Md. Barkat (Boston) (Mohammad Fazlul Karim J) (Criminal) 3ADC 668 Section 302/34 Inconsistency in the evidence the order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this contention cannot be brushed aside altogether. There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are convicted there- under. Aynul Sheikh and another vs. The State represented by the Deputy Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal)4ADC 354 Section 302/34 Making the rule absolute thereby allowing bail to the respondent. The State. represented by the Deputy vs. Kamal Uddin @ Pichchi Kamal (Amirul Kabir Chowdhury J) (Criminal)4ADC 619 Section 302/34 This petition for leave to appeal as well as Jail Appeal Preferred by condemned prisoner. It appears that the petitioner raised a plea of alibi but failed to substantiate his claim by landing evidence. It further appears that there is no denial to the fact that the deceased were living in the house of the accused-petitioner (P.O. house) on the date and he (accused-petitioner) ever took any attempt to save the life of the deceased. Paritosh Rudra vs. The State (Md. Hassan Ameen 1) (Criminal) 4ADC 702 Section 302/34 Confessional statements were duly recorded in due compliance with the provisions embodied in section 164 Cr. P.C. and does not at all demonstrate that those are not inculpatory and so the Court can rely upon those confessional statements. Md. Foridur Rahman@ Forid @ Reza vs. The State (Md. Tafazzul Islam J) (Criminal)4ADC 715 Section 302 During pendency of the appeal the petitioners moved the High Court Division for bail and the High Court Division by the judgment and order dated 23 August 2005 allowed the prayer for bail. Md. Maimul Islam Md. Mainul Islam Moinud alias Suja vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 803 Section 302/324/326/448/34 It appears that the High Court Division as well as this Court elaborately considered the points raised now by the learned Counsel and accordingly decided the case. A review is never meant to rehear a matter which has been heard and decided finally. Yogashwar Gope vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 982 Section 302/34 Dismissing the appeal and consequent thereupon affirmed the judgment and order dated 09-07-1990 passed by the Session Judge. If at the time of trial, the offender not below the age of 16 years at the time framing charge for trial can be held together with adult and no separate trial is necessary. Mona alias Zillur Rahman vs The State (Abu Sayeed Ahammed 1) (Criminal) 3ADC 505 Recovery In absence of any evidence of dacoity by any of the witness and in absence of any recovery of any article taken away during the dacoity from the possession of any of the accused person it can be safely said that the prosecution has hopelessly failed to prove the case of dacoity and therefore the charge under section 396 of the Penal Code must fail on the ground of absence of evidence to prove any of the ingredient of section 391 of the Penal Code. The State Vs Md. Abdul Ali and others, 20BLD (HCD) 327 Non-recovery of the deadbody Even in a case of non-recovery of the deadbody of a victim a conviction can be se- cured for an offence of murder under section 302 of the Penal Code if there be legal and sufficient evidence on record to prove the commission of murder by the accused. In the face of clear evidence of eye-witnesses proving murder of the victim by the accused by inflicting assaults on his person and the sub- sequent removal of the deadbody by the ac- cused persons for the purpose of causing disappearance thereof, conviction of the appel- lant under sections 302/34 of the Penal Code is justified. There is no warrant of law altering the charge from section 302 to section 364 of the Penal Code merely because the dead body was not recovered. Shaha and others Vs The State 17BLD(AD)241 Section 302/34 As per provisions of section 133 and illustration (b) of section 114 of the Evidence Act the evidence of an accomplice is unworthy of credit, unless he is corroborated in material particulars because an accomplice who betrays his associates is not a fair witness. Faruque @Jamai Faruque & L.M. Liakat Ali Laskar vs The State (M. M. Ruhul Amin J)(Criminal)2ADC 165 Section—302 In case where allegation had been made that a husband had murdered his wife, whether the husband had a duty to explain how and by whom she was murdered—the Public Prosecutor, whether is supposed to know the law and has a responsibility to work with devotion. In case where the allegations had been that a husband had murdered his wife and then absconded, the husband in such a situation had a duty to explain how his wife was murdered and by whom she was murdered and in case of non-explanation by the husband or his silence in the matter or he having absconded immediately after the murder, would be considered to be a good ground for a finding that the husband is guilty of murder of his wife if, however, there is no suggestion or circumstances to show to the contrary that other inmates of the house also used to beat her and killing her in the process. (ii) The Public Prosecutor is supposed to know the law and has a responsibility to work with devotion keeping in mind that he is representing not a party but the people in the administration of criminal justice. The State Vs. Nurul Huq 13BLD (HCD)99 Ref: 172 I.C.374; 39C.L.J 123; AIR 1977 (SC)1116; 126 I.C.689; 62 I.C. 545; P.L.D. 1964 (SC)813; 31DLR 312; 16 D.L.R (Dacca) 598; A.I.R 1973(SC)2474—Cited Right of an accused to be defended by a lawyer It provides that every person accused of an offence before a criminal Court has a right to be defended by a lawyer. When the offence is punishable with death, he is entitled to be defended at the expense of the State. Nurun Nahar Zaman Vs. The State and another, 15 BLD(HCD) 537 Right of an accused to be defended Before the trial proceeds against an undefended accused charged with an offence which provides capital punishment, it is necessary that State defence be arranged for him. It is all the more necessary when he is tried in absentia. Gopal Chandra Chakraborty Vs. The State, 15BLD(HCD) 224 Ref: 27DLR(AD) 1; 46 DLR 175-Cited Section—302 Circumstantial evidence—Chain of circumstances wanting—presumption that deceased was last found in the company of accused—whether the accused is the killer of the deceased. The circumstantial evidence found against the accused is incapable of explanation on any reasonable theory except that of the guilt of the accused his persons. Accused presumed to be innocent of the charge till guilt is established by legal evidence. Principle to be followed in criminal case based on circumstantial evidence. It is the fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that the accused and accused only was the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused. Last seen theory—in the absence of any eye-witness to the murder and in the absence of any positive evidence that appellant Malai was found, following deceased Siddique Ali with sharp cutting weapons in hand and in the absence of any overt act on the part of the deceased it cannot be said with reasonable certainty that appellant Malai was responsible for the murder of deceased Siddique Ali Litigation—litigation existing between the accused and some of the witnesses is not enough to bear grudge by the accused so as to commit the offence of murder, rather such litigation sometime can be taken as a cause for false implication. Malai Miah Vs. The State (1993) 13BLD (HCD) 277 Section—302 When admittedly a wife sleeps at night with the husband in a room or hut not approachable by others, whether the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record? When admittedly a wife sleeps at night with the husband in a room or hut which is not approachable by others and there is no probable circumstance explaining the cause of death of the wife and she is found to have been killed by in a brutal manner by strangulation, the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record against him. Abdul Hamid @ Sofaruddin Vs. The State, 13BLD(HCD)563 Ref: 38DLR235; 40 DLR (AD) 139—Cited Section—302 Motive When there is sufficient direct evidence to prove an offence, motive is immaterial and has no importance. While trying a case under section 302 of the Penal Code or hearing an appeal involving section 302, the Court must not consider first the motive of the murder, because motive is a matter of speculation and it rests in the mind and special knowledge of the accused persons. Motive is not a necessary ingredient of an offence under section 302 of the Penal Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, specially when the case is based on circumstantial evidence. [Per Mustafa Kamal, J] The State Vs Giasuddin and others, 18 BLD(AD)254 Section 302- On examination of the entire evidence on record, it transpires that no eye witness was examined by the prosecution showing that the convict appellant murdered deceased Chande Ali- Considering the totality of the evidence on record, it is evident that though the prosecution could prove that Chande Ali was murdered but failed to prove that the appellant caused his death. Therefore, the conviction and sentence of the convict-appellant under section 302 of the Penal Code by the trial Court as well as affirmation thereof by the High Court Division was not justified. The judgment and order dated 30.09.2010 passed by the High Court Division in Criminal Jail Appeal No.639 of 2006 dismissing the said appeal and thereby affirming the judgment and order of conviction and sentence dated 11.06.2001 passed by the learned Additional Sessions Judge, Barisal in Sessions Case No.08 of 1995 is hereby set. aside and the convict-appellant is acquitted of the charge under section 302 of the Penal Code. The convict-appellant be set at liberty at once.... Babul alias Fakrul =VS= The State, [6 LM (AD) 181] Sections 302/149- Common object- In absence of prove of the ingredients of common object, the courts below committed error of law in convicting the appellants and others under sections 302/149 of the Penal Code. To secure conviction with the aid of section 149 of the Penal Code an overt act on the part of a member of unlawful assembly is not necessarily required but participation with common object must be proved to the hilt which is absent in this case. When there is a general allegation against a large number of persons the Court will hesitate to convict all of them on theory of constructive liability on vague evidence. ...Abu Taher =VS=The State, [7 LM (AD) 247] Sections 302/149- Convict appellants and entitled to get the benefit of doubt- Normally, this Division does not interfere with the concurrent findings of fact of the Courts below in the absence of very special circumstances or gross errors of law committed by the High Court Division. But where circumstances show that the accused persons are entitled to get benefit of doubt it is duty of this court to step in and correct the erroneous decision of the High Court Division. In consideration of the evidence on record as discussed, we are of the view that all the convict appellants are entitled to get the benefit of doubt....Abu Taher =VS= The State, [7 LM (AD) 247] Section 302/34- Statement of co- accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused- It is the settled principle of law that the statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused, unless there is strong circumstantial and corroborative evidence to justify the statement made by the accused under section 164 of the Code of Criminal Procedure. On perusal of the 164 statement of the accused Tutul and testimony of the P.Ws.2 and 4, we are of the view that the testimony of P.Ws.2 and 4 not only supports the statement made by the accused Tutul under section 164 of the Code of Criminal Procedure but those corroborates the same. It is also proved that confessional statement was voluntary and true and properly recorded by Mr. Narayan Chandra Das, Metropolitan Magistrate, P.W.3, in accordance with law. So, there is no iota of doubt about the abduction and then killing of the deceased, Rony by the accused persons. We are of the view that the judgment and order of conviction and sentence passed by the trial Court are not tainted or perversed, rather the impugned judgment of the High Court Division in acquitting all the convicts is upon misreading of the testimony which cannot be sustained in the eye of law. From the deposition of P.Ws.2, 3, 4 and 14 it is proved beyond all the reasonable doubt that the accused Tutul and Badal in a pre-planned manner abducted and killed Rony in front of P.W.2 Badsha. Therefore, the judgment and order so far it relates to acquitting the accused Badal and Tutul is liable to be set aside. The sentence of death is commuted to sentence for life in respect of convict respondents Fazlur Rahman Badal and Monir Hossain Tutul. The respondents Fazlur Rahman Badal and Monir Hossain Tutul respondents in Criminal Appeal Nos.98 and 101 of 2014 are directed to surrender before the Metropolitan Additional Sessions Judge, 1st Court, Dhaka within 2(two) weeks from the date of receipt of this judgment to serve out the rest of the sentence, failing which, the said Court shall take steps to bring them in jail custody in accordance with law. ...State =VS= Fazlur Rahman alias Badal, [7 LM (AD) 269] Section 302 read with Nari-0-Shishu Nijatan Bidhan) Ain [XVIII of 1995] Daman (Bishesh Section 10(1) and Code of Criminal Procedure [V of 1898] Section 35A So far the findings relating to demand of dowry by the petitioner from the father of deceased Aklima has not been established by any reliable evidence and as such the Appellate Division is unable to agree with the same. Accordingly the judgment and order of conviction and sentence passed under section 10(1) of Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 is liable to be set aside and the petitioner is convicted and sentenced under section 302 of the Penal Code. The judgment and order passed by the Appellate Division in Jail Petition No. 8 of 2010 preferred by petitioner Raju Ahmed @ Raja Mia is reviewed and set aside. His order of conviction and sentence of death under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is set aside. However, he is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life and also to pay a fine of Tk. 1,000/- (one thousand) in default, to suffer rigorous imprisonment for 01 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. ...26 [31 ALR (AD) (2024) 18] Sections 302/34- In many cases a single witness by the simplicity and cleanness of his narrative, by the probability and consistency of the incident he relates, by his agreement to other matters of fact too notorious to stand in need of testimony if situation and character be taken into account, will be enough to stamp conviction on the most reluctant mind. In other in-stances, a number of witnesses, though all were to the same fact, will be found wanting in the balance. If P.W.2 is disbelieved, P.W.6 must be disbelieved straight way on the simple reason that she is not an FIR named witness and she is not corroborated by other persons who have allegedly appeared to the scene with her and that she is not wholly reliable. The judgment of the High Court Division is totally based on conjectures, surmises and hypothetic. There is another aspect which should not be ignored that the defence has examined 9 witnesses. An accused person is a competent witness for the defence and may give evidence on oath in disprove of charges made against him or any other per-sons charged together with him. If an accused is a competent witness, the witnesses examined by the accused carry similar weight. The High Court Division ought to have analyzed their evidence before finding the appellants guilty of the charge. The judgment of the High Court Division is set aside.... Kazem Uddin alias Kazi =VS= The State, [7 LM (AD) 280] Section 302- Modification of sentence of death- The death sentence imposed upon youthful offenders, even up to the age of 25 years was commuted to a sentence of transportation for life. We also note from the charge-sheet that the P.C.P.R. (previous conviction and previous record) do not disclose any previous criminal activity of the condemned petitioner which tends to show that his character is not inherently criminal in nature. We keep in mind also the fact that admittedly enmity and grudge had developed between the condemned petitioner and the victim and her family which has triggered the action of the accused. In the case of Nalu Vs. State reported in I Apex Law Report's (AD) 222, where the facts were similar, with similar mitigating circumstances, this Division commuted the sentence of death to one of imprisonment for life. The youth the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than 812 years, we are of the view that ends of justice will be sufficiently met if the sentence of death is commuted and altered to one of imprisonment for life. Accordingly, the Jail Petition No.15 of 2010 is dismissed with modification of sentence of death. Rahmat Ali alias Shukkur =VS= The State, [8 LM (AD) 626] Sections 302, 34 and 120B- The preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family- To materialise the common objective of the killing of Bangabandhu Sheikh Mujibur Rahman with the members of his family the accused appellants participated in their respective assignment covering a greater range of area starting from Cantonment, Parade Ground of Balurghat, New Airport, Mohakhali, area of Manik Mia Avenue, Mirpur Road, Ministers' Residence, Shahbagh Radio Station, Corner of Race Course, Lake Side at Kalabagan, Dhanmondi and finally to House No.677, Road No.32, Dhanmondi, and that provisions of Section 34 of Penal Code contains rule of evidence which does not create a substantive offence and, as such, the said participations of the accused- appellants were made in furtherance of their common intention to do the illegal act of the killing of the then President with members of his family and relations comes within the purview of Section 34. In accordance with the preplan pre-design and in order to materialise the same, the accused appellants were deployed for committing the illegal act of killing the then President with members of his family and relations and accordingly I am of the view that the convictions against the accused-appellants under Sections 302, 34 and 120B of the Penal Code do not suffer from any illegality and, as such, the same do not call for any interference by this Apex Court. Since the trial Court and the High Court Division made concurrent findings as to the commission of the offence, there is no scope at this stage to interfere with the concurrent findings of facts as to the involvement of the accused-appellants in the commission of offence and, as such, all the appeals are liable to be dismissed and the Death Reference is liable to be affirmed. (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda (Artillery) =VS= The State (Banga Bandhu Murder Case), [9 LM (AD) 386] Sections 302/34- Commuting the sentence of death to imprisonment life- All the eye witnesses to the occurrence categorically stated about only one blow given by the appellant, Muzibur Rahman on the head of the deceased and none said about any second attempt by him to cause further injuries or any other overt act and this fact substantiates that the appellant had no intention to cause death of the deceased. Charge sheet shows that PC and PR of the appellant is nil. And he has been languishing in death cell since 04.03.2001, that is, for more than 11(eleven) years. Considering of the case, we are of the view that justice would be best served if the sentence of death awarded to the appellant by the learned Additional Sessions Judge and confirmed by the High Court Division is commuted to imprisonment for life.... Muzibur Rahman =VS= The State, [9 LM (AD) 116] Sections 302/34- Conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self- contained even it may not have received corroboration from other witnesses consideration of the On facts and circumstances and the law discussed above along with the materials on record we find that the High Court Division was not wrong in holding that the appellant Liton participated in the offence with the common object of killing Asha, the deceased. Thus the submissions as advanced by the learned advocate for the appellant has been meticulously addressed and considered by the High Court Division while delivering the impugned judgment and order and as such the same does not call for any interference. This Division in several cases held that conviction of an accused can safely be based on the solitary evidence of the eye witness when his evidence is full, complete and self-contained even it may not have received corroboration from other witnesses but it stands fully corroborated by the circumstances of the case and medical evidence on record. Its fullness and completeness are enough to justify the conviction. This view finds support in the case of Abdul Hai Sikder and another Vs. The state, 43 DLR (AD)95. We do not find any merit in this appeal. Hence this criminal appeal is dismissed.... Liton =VS= The State, [9 LM (AD) 315] Sections 302/34- Commute the sentence of death of imprisonment for life- We do not find any reason to differ from the views expressed by the trial Court and the High Court Division regarding the conviction of the accused. We respectfully agree that the condemned appellants were rightly convicted under sections 302/34 of the Penal Code. It has been held in several cases of this Division that long periods spent in the condemned cell would not by itself mean that sentence of death should be commuted. However, we find that the appellants do not have any previous convictions, and it is unlikely that they would be a threat to society. Moreover, in her testimony PW15, Mussammat Monirunnahar, the only direct eyewitness of the occurrence, stated that the three accused persons, namely Nesar, Aksed and Kuran simultaneously assaulted the victim with knives. Seven injuries were found on various parts of the body of the victim. Hence, it is not possible to say specifically which assailant dealt the blow that led to the death of the victim. In such circumstances, we are inclined to commute the sentence of death to one of imprisonment for life. We are of the view that ends of justice will be sufficiently met if the sentence of death imposed upon the appellants Al Haj Md. Nesar Uddin Gazi and Md. Aksed Ali Gazi is commuted to one of imprisonment for life. In addition, they are to pay a fine of Tk.5000/- each, in default to suffer rigorous imprisonment for 15 days more. Nesar Uddin Gazi(Al Haj Md.) -VS= The State, [10 LM (AD) 377] Sections 302 and 34 Confessional statement is neither true nor voluntary. Therefore, there is no evidence on record to connect the appellant in the alleged offence We are of the view that this confessional statement is neither true nor voluntary. Therefore, there is no evidence on record to connect the appellant in the alleged offence. Incurable inconsistencies made in the F.I.R., evidence adduced by the prosecution and confessional statement recorded under section 164 of the Code of Criminal Procedure lead to the irresistible conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubt. This criminal appeal is allowed and the appellant is acquitted of the charge levelled against him who has already been released from jail custody by the advance order dated 31.01.2021. ...Shafiqul Islam =VS= The State, [10 LM (AD) 423] Sections 302/148, 304(Part-1)- Culpable homicide- The facts and circumstances of this case lead us to believe that the appellant inflicted 'shabol' blow on the head of the deceased with the intention of causing grievous injuries which were likely to cause death, but the 'shabol' blow was inflicted at the spur of the moment in a sudden fight between the parties without any premeditation, as well being provoked by the deceased the appellant lost self-control. Moreover, the act of the appellant falls within the purview of Exception Nos.1 and 4 of Section 300 that is punishable under section 304 Part-1 which provides that the act by which the death is caused is done with intention of causing death or such bodily injury as is likely to cause death. The High Court Division committed an error of law in convicting the appellant under Sections 302/148 of the Penal Code in holding that "the weapon used was sabol. The accused dealt sabol blow on the vital part of the body. All these show that the accused had intention to kill Khorshed." The High Court Division failed to consider that, though the appellant has caused the death with the intention, he did the same in a sudden fight, in the heat of passion being provoked by the victim. The appeal is dismissed with the modification of the sentence of the appellant. We, therefore, alter the conviction of the appellant from Section 302 to Section 304 Part-I and reduce the sentence to rigorous imprisonment for 10 (ten) years with a fine of Tk.1,000.00 (one thousand), in default to pay the fine, the appellant shall suffer rigorous imprisonment for 15(fifteen) days more. :..Abdus Samad(Md.) VS The State, [10 LM (AD) 436] Sections 302/34- Modification of sentence of death- It is well settled that the confessional statement can be the sole basis of conviction if it is made voluntarily and it is true. In the instant case, the confessional statement of the appellant is voluntary and true as well as this confessional statement supports the depositions of eye witnesses, PWs 14 and 15. Decision cited [66 DLR(AD)199] as well as the circumstances of this case, we are of the view that justice would be sufficiently met, if the sentence of death of the appellant Md. Humayun be commuted to one of imprisonment for life. The criminal appeal is dismissed with modification of sentence of death. ... Humayun (Md.) =VS= The State, [10 LM (AD) 446] Sections 302/34- Respond to the society's cry for justice against the criminal The savage nature of the crime has shocked our judicial conscious; the murder was cold-blooded and brutal without any provocation. There are no extenuating or mitigating circumstances. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". On these facts declining to confirm the death sentence will, in our view, stultify the course of justice. Therefore, there is no justification to commute the death penalty to imprisonment for life. Khorshed(Md.) =VS= The State, [10 LM (AD) 458] Section 302- The chain of circumstances was complete and it was the husband who committed the murder of his wife by giving crowbar blow It is the duty of the Court to award appropriate punishment in exercise its discretion. Facts and circumstances of this case show that it was not an attack on account of any provocation or mental derange. The act of bringing out a knife from showcase and abruptly inflicting the same on the person of the victim in the most brutal manner with severe cruelty inflicting number of injuries in a calculated manner on a helpless housewife. The killing of wife in a gruesome and diabolical manner will irrefutably be taken into consideration as aggravating circum-stances. The appellant indulged in grotesque crime of murdering his wife in presence of his daughters in a place which was the most secured place for the victim. Such killing shocks our juridical conscience. The appellant was in a position of trust but he betrayed with all his family members killing his wife who was the mother of his three children. The sentence of death of the appellant as awarded by the Tribunal and upheld by the High Court Division is hereby affirmed. ...Sirajul Islam @ Siraj =VS= The State, [10 LM (AD) 605] Sections 302/34- The murder was cold-blooded and brutal without any provocation- The savage nature of the crime has shocked our judicial conscious; the murder was cold-blooded and brutal without any provocation. There are no extenuating or mitigating circumstances. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for such heinous crime the most deterrent punishment for wanton and brutal murder is not given, the case of deterrent punishment will lose its relevance. Therefore, there is no justification to commute the death penalty to imprisonment for life....Syed Abdullah Al Masud @ Tipu VS The State, [10 LM (AD) 674] Section 302/34 Inconsistency in the evidence the order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this con- tention cannot be brushed aside altogether. There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are convicted there- under. Aynul Sheikh and another vs. The State represented by the Deputy Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal) 4ADC 354 Section 302/34- The charge of offence not proved beyond reasonable doubt We find that the trial court as well as the High Court has erred in law in holding that the charge against the two accused stood proved. We are of the opinion that the prosecution has failed to prove the charge of offence punishable under Section 302/34 IPC against the two accused. We further hold that the charge of offence punishable under Section 25 of the Arms Act, 1959 against accused Ajit @Dara Singh is also not proved beyond reasonable doubt. Pawan =VS= State of Haryana, [3 LM (SC) 71] Section 302 & 392- The charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time- The charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld.......Raj Kumar =VS= State (NCT of Delhi), [3 LM (SC) 74] Section-302- We direct the Sessions Judge, who is seized of the trial of the respondents' case in question, to ensure that the trial is completed on merits within one year from the date of this order strictly in accordance with law. Depending upon the evidence adduced by the prosecution, the Sessions Judge has ample power to alter/amend/add any charge by taking recourse to powers under Section 216 of the Cr.P.C. notwithstanding the High Court altering the charge at this stage. The appeal fails and is accordingly dismissed. The order granting interim stay is recalled. .....State of Haryana =VS= Rajesh Aggarwal, [5 LM (SC) 99] Section—302 Plea of alibi In a wife killing case it is always presumed that the husband was with the deceased-wife at the time of occurrence, unless any alibi is set up by the defence. In that case the burden of proving such plea rests on the husband in order to absolve him of any criminal liability. Abdus Salam Vs The State, 19BLD (HCD)98 Section—302 Since the sentence prescribed under section 302 of the Penal Code is death or imprisonment for life, the Court before recording a conviction must be satisfied beyond reasonable doubts about the guilt of the accused persons on careful scrutiny of the evidence on record. A conviction even on grave suspicion and high probability is not tenable in law. Md. Jiaur Rahman Vs. The State, 15BLD (HCD)459 Section 302/34, 304 There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part 1 of the Penal Code. Aynul Sheikh & Jaber Sheikh vs The State (Amirul Kabir Chowdhury J) (Criminal) 2ADC 863 Section 302/109 Under section 134 of the Evidence Act believing of only eye-witness is legally permissible and conviction can be based on the sole evidence of only one eye- witness if found to be trustworthy. Md. Yousuf Bepari vs The State (M.M. Ruhul Amin J)(Criminal) 2ADC 871 Section—302 Sentence Sentence is a complex matter which needs special considerations in the context of proved facts. In the instant case the broad facts that stare at the face are that there were hot altercations and exchange of hot words between the parties immediately preceding the occurrence and there was grappling by Salam and 2 others on one side and victim Jalal on the other and in the course of such quarrel and on the hit of passion condemned prisoner Abdul Aziz Mina inflected dagger blows on the victim. Under such circumstances, it is to be found that the condemned prisoner had no premeditation for killing victim Jalal and he acted on the heat of passion. The sentence of death is therefore commuted to a sentence of imprisonment for life. The State Vs Abdul Aziz Mina, 16BLD(HCD)183 Sections—302/109 In view of the fact that the condemned prisoner did not inflict any injury on victim Hazera, although he was a silent spectator to the cruel and gruesome murder of his wife by his companions, who were acquitted for want of legal evidence, it is reasonable to hold that he could not be convicted under section 302 of the Penal Code but should be found guilty for abetment under sections 302/109 of the Penal Code. Abdul Awal Vs. The State, 14BLD(AD)224 Sections—302134 Evidence Act, 1872(1 of 1872) Section—3 There is complete chain of circumstances that the appellants assaulted deceased victim Biswajit severely and dealt fatal blow causing his death when appellant Guizar participated in the occurrence most actively and he was found by PW4 for the last time with the deceased victim when Gulzar was chasing by the eastern side of the khal and the circumstances of the case taken cumulatively are forming a claim so complete that there is no escaped from the conclusion that the murder of victim Biswajit was committed by the appellant Gulzar and his associates and none else. Guizar Biswas and others Vs The State,20BLD(HCD)550 Sections—302/34 The wife of the deceased deposed in Court that she had recognised the assailants of her husband and accused Akkel Ali gave channy blow, Delwar gave dao blow, accused Omar Ali gave Lathi blow and accused Quasem gave rifle blow on her husband who succumbed to the injuries on 15.6.1989 in the hospital which is corroborated by PWs. 1,2, 3, 4, 6 and 8 and the dying declaration and there is nothing to disbelieve the credibility of their evidences and hence the prosecution proved the case beyond all reasonable doubt and therefore the conviction and sentences under section 302/34 of the Penal Code against the condemned convict is sustainable. The State Vs Akkel Ali and ors, 20BLD (HCD)484 Sections—302/34 and 201/34 Non-recovery of the deadbody Even in a case of non-recovery of the deadbody of a victim a conviction can be secured for an offence of murder under section 302 of the Penal Code if there be legal and sufficient evidence on record to prove the commission of murder by the accused. In the face of clear evidence of eye-witnesses proving murder of the victim by the accused by inflicting assaults on his person and the subsequent removal of the deadbody by the accused persons for the purpose of causing disappearance thereof, Conviction of the appellant under sections 302/34 of the Penal Code is justified. There is no warrant of law altering the charge from section 302 to section 364 of the Penal Code merely because the dead body was not recovered. Shaha and others Vs The State 17BLD (AD)241 Sections—302 and 302/149 A conviction under section 302 of the Penal Code and a conviction under sections 302/149 of the Penal Code are different kinds of conviction as section 302 of the Penal Code involves direct and personal liability of the accused whereas sections 302/149 of the Penal Code involve a vicarious liability. The trial Court convicted the accused-appellant under sections 302/149 of the Penal Code and as such the High Court Division was wrong in affirming the order of conviction and sentence under section 302 of the Penal Code. Altaf Hossain Vs The State, 18BLD (AD)231 Sections—302, 304 and 326 The line of demarcation between culpable homicide and grievous hurt is rather thin. In the former case injury must be such as is likely to cause death whereas in the latter case that is likely to endanger life. Offence of culpable homicide pre-supposes an intention or knowledge of likelihood of causing death. In the absence of such intention or knowledge the offence committed may be a grievous hurt notwithstanding death being caused. Humayun Matubbar Vs The State, 18 BLD (HCD) 492 Section 300— When the victim went to bed with her husband and was found subsequently dead there, he bears a serious obligation to account for her death. Abdus Sukur Mia vs State 48 DLR 228. Section 300— When all that the accused intended was to strike his wife and the strike by mistake hit their newly born baby which had led to the killing, such of the accused falls within the purview of exception I of section 300. State vs Abdul Howlader 48 DLR 257. Sections 300 & 302— As there is a possibility that before the occurrence there might have been some sort of altercation between the accused and the deceased or loss of temper by the accused, it cannot be held that it was a premeditated murder. State vs Abdul Khaleque 46 DLR 353. Sections 300 & 396— The word murder appearing in section 396 of the Penal Code and the word murder appearing in section 300 of the” Penal Code is not the same thing. In section 396 the liability of commission of murder is conjoint while commission of murder as defined under section 300 is absolutely an individual liability. Arzan @ Iman Ali vs State 48 DLR 287. Section 302— Motive is not a necessary ingredient of an offence under section 302 of the Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, especially when the case is based on circumstantial evidence. State, represented by the Solicitor, Government of the People’s Republic of Bangladesh vs Giasuddin and others 51 DLR (AD) 103 Sections 302 & 302/149— The High Court Division affirmed the order of conviction and sentence as passed by the trial Court forgetting altogether that the conviction of the appellant was recorded by the trial Court under section 302/149 of the Penal Code which is a completely different kind of conviction from one under section 302 directly where the liability is personal and in the former case the liability is vicarious. Altaf Hossain vs State 50 DLR (AD) 120. Section 300 Explanation 4— Accused Abdul Aziz Mina has acted in a cruel and unusual manner and also took undue advantage in inflicting 4 knife blows on the person of victim Jalal which ultimately caused his death. Therefore, the offence as committed by accused Abdul Aziz Mina does not in any way attract the provision of Exception 4 of section 300 but attracts the provision of section 300 that it is a voluntary infliction of knife blows with the intention of causing death and as such accused Abdul Aziz Mina cannot escape the liability of causing homicide amounting to murder. Abdul Aziz Mina and others vs State 48 DLR 382. Sections 302/34— Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life. Appellate Division in some cases opined /mat a convict may be enlarged on bail if there is no chance of disposal of the appeal within the period of his sentence. A convict who is sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division. Bail granted to appellant-opposite-party Abdul Momin Sarder on 11-1-96 is cancelled and he is directed to surrender to his bail bond forthwith. State vs Abdul Momin Sardar 50 DLR 588. Sections 302/149— Without a proper finding that the accused had a common object conviction with the aid of section 149 of the Penal Code is illegal. State vs Raisuddin and others 48 DLR 517. Sections 302/34— Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life. State vs Abdul Momin Sardar 50 DLR 588 In view of the allegations and the evidence on record, we are of the view that these accused appellants could not be guilty on evidence under section 302/149 of the Penal Code for being a number of unlawful assembly having the common object of committing murder of the victims.......Accordingly, the accused appellants in Criminal Appeal No.38 of 2003 are convicted under section 148 of the Penal Code. Abdul Aziz & Monowar Hossain vs The State (Mohammad Fazlul Karim J)(Criminal) 2ADC 882 Section 302/34 In the instant case we have considered the surrounding circumstances, including the place, time of the alleged occurrence and kind of witnesses produced to support evidence of P.W.2 and we are in agreement with the High Court Division that under the circumstances the testimony of P.W.2 is not sufficient to maintain conviction and more so her evidence also, in the facts and circum- stances, could not be relied upon to be true.........(6). The State vs Muktu Mia and ors (Amirul Kabir Chowdhury J) (Criminal) 2ADC 1002 Section 304(Part-1), 307 & 323- Dispute between the parties regarding land-The trial Court went on to state that, after going through the entire evidence, the incident itself was doubtful, and also commented on the fact that there was some semi-digested food in the stomach of the deceased. The medical evidence shows that it was 2 to 3 hours in the stomach before the deceased was fired upon, and this showed that the incident could not have taken place at 6.00 a.m. at all, the trial Court acquitted all the three accused before it. In an appeal filed by the State, the High Court convicted the accused No.3, the SLP petitioner before us under Section 304 Part-I of the Indian Penal Code for the death of Umesh Shukla; Section 307 for the unsuccessful murder attempt on Savitri Devi PW-3, who is the appellant before us under Section 323 and sentenced the accused to 10 years rigorous imprisonment under Section 304 Part-I, three years rigorous imprisonment under Section 307 and six months rigorous imprisonment under Section 323 together with fine. The other two accused, with whom we are not concerned, were sentenced under Section 323 of the Indian Penal Code for six months. The appellant in Criminal Appeal No. 1159 of 2007 is on bail. His bail bonds shall stand cancelled. The appellant shall be taken into custody forthwith to serve out the remaining sentence. Hari Shankar Shukla =VS= State of Uttar Pradesh, [3 LM (SC) 61] Section 304B r/w 34- No common intention Both the courts below have erred in law in holding that the charge under Section 304B read with Section 34 IPC stood proved as against the present appellants. In our opinion, in view of the evidence discussed above, it cannot be said that it is proved beyond reasonable doubt that the present appellants, who are sister-in-law and brother-in-law of the deceased, tortured the victim for any demand of dowry. In our opinion, in the present case which is based on circumstantial evidence it cannot be said that appellants had any common intention with the husband of the deceased in commission of the crime. It is sufficiently shown on the record that they used to live in a different village. Therefore, we are inclined to allow the present appeal. Bibi Parwana Khatoon =VS= State of Bihar, [3 LM (SC) 55] Sections 302 & 304— By inclusion of the offence of the above ordinance in the schedule to the Special Powers Act the jurisdiction of the Sessions Court has been ousted. Now, as the death is proved but not for demand of dowry, the present case is sent back to the Sessions Court for trial. Firoz Miah vs State 51 DLR 37 Sections 302 & 304 Part II— The accused persons might have given the deceased a serious beating to effect divorce of his second wife and this resulted in his death. The offence committed by them does not attract sections 302/109, it attracts provision of section 304 Part II of the Penal Code. Shahajahan Talukder @ Manik and others vs State 47 DLR 198. Sections 302/34— Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life. State vs Abdul Momin Sardar 50 DLR 588. Sections 302 & 326— The injury inflicted did not cause instant death. The victim was alive for about 11/2 months at the hospital. This shows the injury inflicted was not likely to cause death, but it endangered the life and ultimately resulted in death. The appellant therefore is guilty under section 326 of the Penal Code. Humayun Matubbar vs State 51 DLR 433 Section 302/120B – Murder committed in consequence of conspiracy Charge of murder has to be proved by the evidence, facts and circumstances of the case. Guilt of the accused cannot be proved by his character. Circumstance must be of such nature that it leads to the irresistible conclusion as to the guilt of the accused and must be incompatible with the innocence of the accused. The conspiracy alleged must not be remote so to have no nexus with the commission of the murder. Further the witness to such conspiracy must be natural and must be worthy of credence and inspire confidence of the court. State and another Vs. Shahidur Rahman @ Shahid and another 14 MLR (2009) (AD) 358. Penal Code, 1860 Section 302/34 – Charge of murder proved by circumstantial and other corroborative evidence including confessional statement Sentence of death is held to be appropriate. The charge of cold blooded murder of her daughter with the participation of the co-convict in a gruesome manner appears to have been proved beyond doubt by strong circumstantial evidence and confessional statement of the condemned prisoner corroborated by other independent evidence and there being no mitigating factor the High Court Division having been in complete agreement with the trial court confirmed the death sentence under section 374 of the Code of Criminal Procedure. The State Vs. Rokeya Begum and another 11 MLR (2006) (HC) 63. Penal Code, 1860 Section 302/34 – Participation of all the accuseds in furtherance of their common intention to commit murder is essential to attract section 34. Conviction and sentence can well be based on the evidence of a solitary eyewitness and extra-judicial dying declaration. Section 34 of the Penal Code, 1860 is attracted when the accused in furtherance of their common intention participated in the commission of the murder. Conviction and sentence based on the evidence of a solitary eye witness and the extra-judicial dying declaration are held by the apex court perfectly justified. Enamul Huq and another Vs. The State 11 MLR (2006) (AD) 422. Penal Code, 1860 Section 302 – Liability of husband in wife killing case Commutation of sentence of death into life imprisonment in the absence of any extenuating circumstances is held by the apex court not appropriate. Law has by now been well settled that the husband while they were living in the same house at the time of occurrence has liability to explain as to how his wife was killed. When the husband fails to offer any satisfactory explanation presumption raises as to the guilt of the husband and the plea of his innocence falls to the ground. Abu Sayed (Saked) Vs. The State 12 MLR (2007) (AD) 101. Penal Code, 1860 Section 302/34 – Sentence of death is commuted to life imprisonment in view of absence of special brutality in committing the murder. Though the charge under section 302/34 of the Penal Code was found established beyond all reasonable doubt by the prosecution, the High Court Division in the Death Reference commuted the sentence of death into imprisonment for life in view of the death of the deceased being committed without special brutality. The apex court held the decision of the High Court Division perfectly justified. State Vs. Joinal Fakir and another 13 MLR (2008) (AD) 62. Penal Code, 1860 Section 302 and 304 – Several injuries inflicted even though not on the vital part of the body of the deceased which are likely to cause death and when in consequence thereof the death actually occurred, certainly constitute affiance punishable under section 302 of the Penal Code and not under section 304. Syed Nurul Azim Babar Vs. The State 14 MLR (2009) (AD) 364. Penal Code, 1860 Section 302/34 – Acquittal of accused in a murder case on ground of benefit of doubt based on hypothesis not supported by materials on record has been strongly disapproved by the apex court – The inmates of the house in whose presence the deceased was murdered at dead of night are the natural witnesses whose evidence cannot be discarded by reason of their relationship with the deceased. Though corroboration by independent witness in a case where enmity exists between the witness and the accused is a rule of prudence but it is not inflexible rule. When time of occurrence is specifically mentioned by the prosecution in the F.I.R non-mention of the age of the injury of the deceased in the post mortem examination report is immaterial. State Vs. Abdul Kader alias Kada and others 13 MLR (2008) (AD) 86. Penal Code, 1860 Section 302 – When charge is established beyond all reasonable doubt with reliable evidence conviction and sentence awarded thereon can well be sustained. Allegation of enmity does not always diminish the evidentiary value of ocular evidence. Again absence of blood in the place of occurence by itself does not render ground to disbelieve the prosecution case. Motive when attributed but not proved is not also always fatal to the prosecution case. Yogashwar Gape Vs. The State 11 MLR (2006) (AD) 226. Code, 1860 Section 302 – Liability of husband in a case of murder of his wife when he was not in the house of occurrence at the relevant time. Evidence Act, 1872 Section 106 – Liability of the husband to explain how his wife met her death. In this jail appeal the condemned prisoner, from the evidence on record, is found by the Appellate Division, was not in the P.O. house at or about the time of occurrence and as such he cannot be held liable under section 106 of the Evidence Act to explain as to how his wife and three years old daughter met their tragic death. In that view of the matter the apex court held that the prosecution could not prove the charge beyond all reasonable doubt and allowed the appeal. Mokter Hossain Khan (Md.) Vs. The State 13 MLR (2008) (AD) 186. Penal Code, 1860 Section 302/ 333 I 224/34 – Charge has to be proved by consistent and reliable evidences. Evidence Act, 1872 Section 114 (g) – Withholding material witness/ evidence raises adverse presumption against prosecution case The trial court convicted accused and awarded death penalty. The High Court arterial evidence which created doubt as to the time, place and manner of occurrence and came to the finding that the deceased might have received injuries elsewhere and accordingly rejected the Death reference and acquitted the accused which the Appellate Division found appropriate and dismissed the appeal preferred by the state. State Vs. Md. Mukul alias Swapan 13 MLR (2008) (AD) 246. Penal Code, 1860 Section 302 – Husband liability to explain the circumstances under which his wife was done to death. Law is well settled that the husband is under the obligation to explain as to how his wife met her death when both of them were residing in the same house at the relevant time. In the instant case the husband convict-appellant having failed to offer any satisfactory explanation was sentenced to death by the trial court which the High Court Division in the facts and circumstances commuted into imprisonment for life. The Appellate Division upheld the sentence since commuted as perfectly justified. Abul Hossain Vs. The State 14 MLR (2009) (AD) 30. Section, 302/34 High Court Division without dis- cussing the evidence on record as required under law in a very slip shod manner set aside the order of conviction and sentence on certain untenable and flimsy grounds. The State vs. Nantu Biswas (Md. Abdul Matin J) (Criminal) 6 ADC 897 Sections 302/34 The High Court Division without dis- cussing the evidence on record as re- quired under law in a very slip shod manner set aside the order of convic- tion and sentence on certain untenable and flimsy grounds. The State vs. Nantu Biswas and others (Md. Abdul Matin J) (Criminal) 6 ADC 254 Penal Code, 1860 Section 302- In case of murder with extreme brutality death is the proper sentence Where there is mitigating circumstance the alternative sentence of imprisonment for life is the appropriate sentence. Sentence must be proportionate to the nature and gravity of the offence. State Vs. Anjuara Khatun 12 MLR (2007) (HC) 214. Penal Code, 1860 Section 302/34 – Sentence for the offence of murder is either death or imprisonment for life When the charge of murder under section 302 read with section 34 of the Penal Code is proved beyond doubt, the trial court shall have to award upon conviction of the accused the sentence of either death or the sentence of imprisonment for life in cases where there is certain extenuating circumstances. The learned judges of the High Court Division took serious view about the poor knowledge of the Additional Sessions Judge who awarded sentence of 7 years rigorous imprisonment to eight accused under section 302/34 of the Penal Code. Rasheduzzaman @ Nayon and eight others Vs. The State 12 MLR (2007) (HC) 128. Penal Code, 1860 Section 302 – Conviction and sentence not based on any legal evidence are not sustainable Convicting the appellant on the basis of evidence of court witnesses and acquitting the other 41 accused including those against whom there are sufficient convincing evidence of ocular witness by the cryptic and unintelligible judgment are viewed by the learned judges of the High Court Division with strong disapproval who also expressed their surprise at the failure of the state functionaries in not preferring appeal against the acquittal in such a case of double murder committed in broad day light. Kala Mia Vs. The State 12 MLR (2007) (HC) 232. Penal Code, 1860 Section 302/34- Charge of murder committed in furtherance of common intention. Evidence of witnesses related to each other who appear to be natural and reliable cannot be discarded only on the ground of their relationship. In the instant case the vital witnesses though related to each other consistently proved the charge and as such the learned judges of the High Court Division having found nothing to interfere with the conviction and sentence dismissed the appeal with certain modification as to appropriate section of law and entitlement of the benefit under section 35A Cr.P.C. Abu Sayed Gain alias Sáyed Ahméd Gain and another Vs. The State 14 MLR (2009) (HC) 237. Penal Code, 1860 Sections 302 and 304 – Culpable homicide when committed without the intention to cause death or in a state of provocation and loss of self-control falls under section 304 of the Penal Code In the instant case it is clearly established that the accused appellant caused the injury on the head of the deceased in the midst of quarrel and in a state of loss of self-control. The victim died in the next day of the occurrence. The offence in the facts and circumstances falls within the ambit of section 304 and not under section 302. The learned judges of the High Court Division having regard to the position of law upheld the conviction but altered the sentence of imprisonment for life into 10 years RI under section 304 of the Penal Code. Aynul Huq Vs. The State 14 MLR (2009) (HC) 278. Penal Code, 1860 Section 302/201- Husband liability in a wife killing case when both of them were living in the same house at the time of occurrence In the instant case the plea taken by the husband as to the wife committing suicide having failed and the charge of murder established beyond all reasonable doubt pointing unerringly at the guilt of the husband the conviction and sentence as modified by the High Court Division are affirmed by the apex court. Azam Reza Vs. The State 15 MLR (2010) (AD) 219. Culpable homicide Mere killing of a person or mere causing a person's death is not murder, culpable homicide or even any criminal offence but it is so when caused with certain guilty knowledge. The essential difference between mere "culpable homicide" and "culpable homicide amounting to murder" is the degree of probability of causing death. When death is prob- able, it is culpable homicide but when death is most probable, it is murder. Penal Code, Ss. 299 & 300 The State Vs. Ashraf Ali and others, 14BLD(AD)127 Penal Code, 1860 Sections 302 and 304 – Absence of intention to cause the death brings the offence of culpable homicide not amounting to murder within the ambit of section 304 of the Penal Code. State Vs. Jahedul Islam @ Moulvi Babu 14 MLR (2009) (AD) 258. Penal Code, 1860 Section 302 – Charge of murder when established beyond all reasonable doubt and when there is no mitigating factor, the death is held to be the proper sentence. When the wife who was living with his husband in the same house and the defence was found false and the charge of murder stood proved beyond all reasonable doubt and there exists no mitigating factor the apex court held the sentence of death perfectly justified. Alamuddin alias Sha pan Vs. The State 14 MLR (2009) (AD) 301. Penal Code, 1860 Section 302/34 – Charge of murder Section 300 Exception 4 – Ingredients of exception when not established, the accused cannot get the benefit of this exception. In the instant case the accused could not fulfil the ingredients of section 300, exception 4 and on the contrary the prosecution having established the charge under section 302/34 of the Penal Code beyond all reasonable doubt the High Court Division dismissed the appeal which the Appellate Division found nothing to interfere. Mohammad Mostafa alias Dayemuddin and another Vs. The State 24 MLR (2009) (AD) 334. Penal Code, 1860 Section 302 – Charge of murder when found based on confessional statement of accused supported by other relevant evidence-Convict appellant was last seen with the victim. The chapati used in committing the murder of the victim was recovered at the showing of the accused who surrendered before the police and made confessional statement recorded under section 164 Cr.P.C. The confession was found voluntary and true. The unbroken chain of events of the occurrence unerringly pointing at the guilt of the accused were proved beyond all reasonable doubts. The Appellate Division held the convict-appellant has been rightly convicted and sentenced. Shajahan Ali (Md.) alias Md. Shajahan Vs. The State, represented by the Deputy Commissioner, Kishoreganj 14 MLR (2009) (AD) 325. Penal Code, 1860 Section 302/34- Charge of murder- Evidence of partisan witness when does not appear to be tainted with bias can well form the basis of conviction. Non-examination of some of the chargesheeted witnesses when does not cause any prejudice to the accused, it does not raise any presumption adverse to the prosecution. Zakir Hossain and another Vs. The State 14 MLR (2009) (AD) 211. Penal Code, 1860 Section 302/34 – Charge of murder- Recognition of the accused in the light of full moon. Evidence of witness cannot be discarded on the ground of relationship with the deceased. The trial court upon scrutiny of evidence on record and the facts and circumstances convicted the accused and awarded the sentence of death. The High Court Division accepted the reference. The Appellate Division affirmed the conviction and sentence as being perfectly justified. Talebuddin (Taleb) ( Vs. The State 15 MLR (2010) (AD) 454. Penal Code, 1860 Section 302- Charge of murder must be proved beyond all reasonable doubt by evidence of independent and reliable witness. The judge must be more scrutinizing to exclude the possibility of false implication of the accused when there is enmity between the parties. Sharafat Mondal and others Vs. The State 11 MLR (2006) (HC) 168. Penal Code, 1860 Section 302 – Penalty of life imprisonment is held to be appropriate in a case based on circumstantial evidence. Where in a case prosecution is entirely based on circumstantial evidence and there is no ocular evidence of the occurrence and the accused is defended by inexperienced lawyer appointed by the state, the learned judges of the High Court Division held the sentence of imprisonment for life to be appropriate instead of the death sentence and accordingly commuted the sentence of death into one of imprisonment for life. Md. Hashem Vs. The State 11 MLR (2006) (HC) 45. Penal Code, 1860 Section 302 – Charge of murder must be proved beyond all reasonable doubt by consistent and reliable evidence. Conflict between medical evidence and ocular evidence as to the injuries and non-examination of material witness give rise to adverse presumption against the prosecution case, resulting in the acquittal of the accused on benefit of doubt. ljmaruddin alias Dana Miah Vs. The State 11 MLR (2006) (MC) 231. Penal Code, 1860 Sections 302/34,382- Charge of murder and theft – When the evidences are sharply contradictory- No conviction sustainable in law. When the evidences given during trial sharply contradict with the recitals of the FIR as to recognition and of the names of the accused, the prosecution story becomes doubtful and as such the conviction and sentence awarded thereupon cannot be sustained. Neza @ Nizamuddin and others Vs. The State 11 MLR (2006) (HC) 299. Penal Code, 1860 Section 302 – Charge of murder Section 84- Exception as to criminal liability- Plea of insanity has to be proved by the defence Code of Criminal Procedure, 1898 Section 465- Procedure of trial of person of unsound mind When the defence established by preponderance of convincing evidences that the accused-appellant was not mentally sound and was incapable of understanding the nature of his act, he is entitled to the exemption as provided under section 84 of the Penal Code. The learned judges of the High Court Division found the trial judge failed to follow the procedure of trial as contemplated under section 465 Cr.P.C which vitiated the trial and as such set- aside the conviction and sentence giving the convict-appellant benefit of section 84 of the Penal Code. Wally Ahmed alias Babi Vs. The State 13 MLR (2008) (HC) 375. Penal Code, 1860 Section 302/34- Charge of murder and the nature of proof-The cardinal principle of criminal jurisprudence is that an accused shall be presumed to be innocent until his guilt is proved by consistent evidence beyond all reasonable doubt. In case of two versions coming from the prosecution side the one more favourable to the accused shall be accepted. When the charge depends entirely upon circumstantial evidence, such circumstance having unbroken chain of events must be so strong unerringly pointing at the guilt of the accused and nothing else. Contradictions in evidence on material joints made the prosecution case doubtful. Dabir Uddin and others Vs. The State 14 MLR (2009) (HC) 181. Penal Code, 1860 Sections 302/34, 417 – Appeal against acquittal – Government did not prefer appeal against acquittal. The informant preferred this appeal. The victim was murdered in a broad day light. The learned judges of the High Court Division upon scrutiny found sufficient evidence on record which can well warrant conviction of the accused. Accordingly the appeal is allowed and the order of acquittal is, set aside and the case is sent back for retrial and disposal. Mokdus Ail Vs. Afiz Ali and others 15 MLR (2010) (HC) 318. Section 303- The provisions of sub- sections (2) and (4) of section 6 deprive a tribunal from discharging it's constitu tional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus, there is no gainsaying that sub-sections (2) and (4) of section 6 of the Ain as well as section 303 of the Code run contrary to those statutory safe-guards which give a tribunal the discretion in the matter of imposing sentence. Bangladesh Legal Aid and Services Trust (BLAST) vs State, 67 DLR (AD) 185 Section 304/326- In the facts and circumstances we are of the view that ends of justice would best be met if the appeal is disposed of with the direction to the convict respondent Nos. 1 and 2 to take steps for getting the appeal heard and disposed of within five months from date. Abdus Sobhan vs Faruque Ahmed Sunan (Amirul Kabir Chowdhury J) (Criminal) 2ADC 866 The Penal Code (XLV of 1860) Section 304, 324 We have already found that the doctor who held post mortem examination over the deadbody of the deceased found (1) One healed stitched wound (oblique) on front of the right parietal bone measur ing I" in length. (2) Three abreasinon marks on anterior aspect of left shin each measuring ½"X", "X4" amd "X 1/4" which were healed and scab were formed. In the opinion of the doctor death of the deceased was due to com- plications of the above mentioned injuries which were ante-mortem and homicidal in nature. Mashuq Mia @ Iqbal vs The State (M. M. Ruhul Amin J) (Criminal) 3ADC 57 Section 304- Ordinarily, an order of acquittal is not interfered with but to meet the cause of justice we find it a fit case for interference with the order of acquittal of the accused respondent. We have no hesitation to hold that Nuru Mira had been rightly convicted for the murder of Amjad and that reversal of his conviction by the appellate Court is totally unjustified as its finding as to the nature of the fatal injury of Amjad is based on surmises. The State vs Nuru Mira (Shahabuddin Ahmed CJ) (Criminal) 2ADC 867 Section 304- There are some exceptions when culpable homicide is not murder We are satisfied that the ingredients of murder as explained in Section 300 of the IPC are missing in this case. The intention of Tularam was to cause bodily injury to Bhadri Lodhi and piercing the chest of Bhadri Lodhi with a spear was such an injury that could possibly cause his death. This knowledge must be attributed to Tularam. Under the circumstances, the conviction of Tularam of an offence punishable under Section 302 of the IPC is set aside but he is convicted of an offence punishable under the second part of Section 304 of the IPC. The appellant has been behind bars for almost 14 years. His sentence is altered to the period of incarceration he has already undergone. He be released forthwith. .....Tularam VS State of Madhya Pradesh, [5 LM (SC) 101] Section 304 (Part I)- Though the accused No.1 was not having intention to commit murder of the deceased but the act was to cause bodily injury which was likely to cause death. Therefore, the High Court found that he would be responsible for commission of culpable homicide not amounting to murder punishable under Section 304 (Part I) of IPC. The High Court after scanning the entire evidence also held that the respondents were not having an intention to commit murder of the deceased Rajesh. We do not find any infirmity in the judgment of the High Court. State of Madhya Pradesh =VS= Gangabishan, [5 LM (SC) 104] Sections 304B and 498A- The father- in-law and mother-in-law of the deceased, one Shanti Devi, have been convicted under Sections 304B and 498A of the Indian Penal Code, 1860 (for short, 'the IPC). They have been sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304B IPC and for a period of one year for the offence under Section 498A IPC- Demands for dowry by the accusedappellants as well as the husband and illtreatment/ cruelty on failure to meet the said demands is evident from the evidence of PW6. From the evidence of PW1, it is clear that the death was on account of burn injuries suffered by the deceased which injuries were caused by use of kerosene. In the light of the aforesaid evidence, this Court has no hesitation in holding that all the three ingredients necessary to draw the presumption of commission of the offence under Section 304B IPC have been proved and established by the prosecution. The offence under Section 498A must also be held to be proved against the accused persons. We. therefore, have no hesitation in dismissing the appeal and in affirming the conviction and sentence imposed by the High Court. Jagdish Chand -VS- State of Haryana, (6 LM (SC) 133] Section 304 Part I— The accused was free to inflict as many blows as he liked—That he dealt merely one blow shows that he did not intend to kill the victim. The killing cannot be termed murder. State vs Khalilur Rahman 48 DLR 184. Section 304 Part II— There was none to stop Rashid to deal repeated blows if he had the intention to kill—he merely had struck one blow which eliminates the intention to kill. Therefore, the intention to kill is lacking—It is not a case of culpable homicide amounting to murder but a culpable homicide not amounting to murder. Abdul Khaleque and others vs State 48 DLR 446. Section 304 (Part I)- The Appellate Division is of the view that the offence attracts section 304 of the Penal Code, which contains two parts. The evidence on record proved that the appellant intentionally inflicted the injury/injuries with a pistol aiming the abdomen and chest either to cause death or to cause such bodily injury which is likely to cause death and therefore, his act attracts Part 1 of section 304 of the Penal Code. Since the appellant used a pistol and shot at chest, he deserves the maximum sentence provided in Part I of Section 304 and shall also liable to fine....... Tofayel Ahmed =VS= The State, [1 LM (AD) 511] Sections 304(Part I, II) r/w sec. 300- Culpable homicide- An offence of culpable homicide may or may not amount to murder but all murders are culpable homicide. Even if the culpable homicide attracts section 300, if any of the special exceptions provided in section 300 is attracted, then also the offence will be culpable homicide not amounting to murder punishable under either part I or Part II of section 304. It depends upon the facts and circumstances of each case. Khalil Peada VS The State, [4 LM (AD) 374] Section 304 (Part II)- High Court Division has totally misread the medical evidence The High Court Division has totally ignored that aspect of the matter and wrongly held that the appellants caused the injuries with deadly weapons resulting to the death of the victim. It has totally misread the medical evidence. The case attracts an offence of culpable homicide not amounting to murder and accordingly, we covert the conviction of the appellants to one under section 304 Part II of the Penal Code and reduce their sentence for the period they have already under gone. The appellants be set at liberty at once if not wanted connection in any other case. The appeal is dismissed with the modification of the conviction and sentence.Firoz Ali =VS= The State, [5 LM (AD) 223] Section 304(Part II) r/w sec. 302/34- Culpable homicide- It is admitted by the informant in his deposition that there was land dispute. The High Court Division noted that accused Nayan gave only one blow to the left knee which is not a vital part of the body showing that he did not intend to kill the victim for which the killing cannot be termed as murder. The High Court Division concluded that it is not a case of culpable homicide amounting to murder, but one of culpable homicide not amounting to murder and, accordingly, altered the conviction to one under the second part of section 304 of the Penal Code...... The State VS Nayan, [4 LM (AD) 523] Penal Code, 1860 Section 304- Offence of culpable homicide not amounting to murder- Postmortem Examination Report when does not support, the prosecution case becomes doubtful. Since the postmortem report categorically states that the deceased died of some disease and the evidences of the P.W.s are discrepant on material points, the learned judges of the High Court Division found the charge not established beyond doubt and as such acquitted the convict-appellants. Sheringir Mollah and others Vs. The State 13 MLR (2008) (HC) 341. Penal Code, 1860 Section 304/34 – Conviction cannot be based on omnibus statement of the prosecution witness Charge must be established by specific and reliable evidence. Several accuseds cannot be convicted on the basis of omnibus statements of the prosecution witness. When the evidence of the eye witnesses do not support the injuries of the victim mentioned in the post mortem report and the evidence of the other material witness stand in sharp contradiction, the learned judges of the High Court Division held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. The State 11 MLR (2006) (HC) 437. Free Fight When it is clear from the evidence that the free fight between the parties took place following an altercation, it stands out that death of the victim was caused without any premeditation in a sudden fight in the heat of the passion and the accused having not acted in a cruel or unusual manner, this readily brings the case under section 304 Part I of the Penal Code. Abul Kalam Azad Vs. The State, 14BLD (HCD) 401 Ref: PLD 1950(Lahore)90; 14BLD(1994) 33: 40 DLR 443-Cited Section—304 Part II On scrutiny and careful analysis of the evidence of the P.Ws it appears that accused Shamsul Huq did not foresee that throwing of brick towards victim Kastura Bibi would cause death to her. He had no intention to cause death or to cause such bodily injury as was likely to cause death. Victim sustained violent blow on the abdominal wall by the brick thrown towards her chest and got senseless but death occurred when accused Abdul Hoque (since deceased) pressed her on the neck resulting in her spontaneous death. Death would not have occurred if accused Abdul Hoque would not have played the part of pressing the victim on her neck. Accused Shamsul Huq had no premeditated intention to kill the victim and the intention to kill is lacking in the instant case. Although, he had no intention to kill the victim, it must be held that he had the knowledge that such throwing of brick was likely to cause her death and the act done by him was both rash and indiscreet and as such accused Shamsul Huq is liable for the commission of an offence punishable under section 304 Part II of the Penal Code. Abdul Jabbar and another Vs. The State, 18BLD(HCD)109 Ref: 5BLD(AD)198; 6BLD(AD)318; 10 BLD (AD)210; 5BLD 129; 8BLD 129; 48DLR 446—Cited Penal Code, 1860 Section 304 – Part I – Offence of culpable homicide not amounting to murder- Section 34- Is attracted when the accuseds in furtherance of their common intention participate in commission of the offence Section 34 does not create substantive offence. It lays down the principle of joint liability. Participation in the commission of an offence in furtherance of common intention attracts the section. Fundamental principle of administration of criminal justice is that until an accused is conclusively proved to be guilty of an offence beyond all reasonable doubt he shall be presumed to be innocent. An accused may be acquitted on the benefit of doubt. But such benefit of doubt must be based on evidence on record and the facts and circumstances of the case and not be imaginary or fanciful doubt based on surmise or conjecture. Penal Code (XLV of 1860) Section 304 Part 1 and 34 Section 34 of the Penal Code is apparently found to be applicable in the case. All the accused including the condemned-prisoner are convicted under section 304-part-1 read with section 34 of the Penal Code. The conviction is altered from the offence of murder to one for culpable homicide not amounting to murder under part I of section 304 of the Penal Code. [73 DLR (2021) 502] Section 313/324/326/34 During pendency of the appeal the respondent Md. Alauddin filed an appli- cation for bail and he was fugitive from trial for many days during the trial but still was allowed bail by the High Court Division. Appellate Division after hearing the matter passed an order to stay the order of bail granted by the High Court Division till disposal of criminal appeal before the High Court Division directing the parties to take steps for expeditious disposal of criminal appeal and accordingly the paper books being pre- pared have been filed and the appeal has been made ready for hearing. Md. Tofeil Ahmed vs. Md. Alauddin and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 895 Penal Code, 1860 Section 314- Charge of causing miscarriage with the consent of the victim falls under part-I of Section 314 Miscarriage was caused to the victim Anwara Begum by administering herbal plant in her uterus as a result of which she died in the Hospital. From the evidence it appeared that she was a consenting party to the miscarriage. In that view of the matter the charge falls under part I of section 314 of the Penal Code punishable with imprisonment for a term which may extend to 10 years. But the convict appellant has been awarded a sentence of imprisonment for life. The learned judge of the High Court Division upon consideration of the evidence on record allowed the appeal in part with modification, of sentence for five years imprisonment. Raquib Sheikh (Md.) Vs. The State 11 MLR (2006) (HC) 80. Sections 319 and 320- Hurt has been defined in section 319 of the Penal Code and grievous hurt has been defined in section 320 thereof. In the Ain, 2000, the word 'hurt' has not been defined and consequently the meaning might constitute 'grievous' or 'simple' hurt. Nurul Huda (Md) vs State, represented by the DC. Lalmonirhat, 67 DLR (AD) 231 Sections 320, 325 & 326— There is no evidence that any of the injuries endangered the life of any of the victim. There was no fracture, the victims were discharged from the hospital after treatment of several days. There is no evidence to show that any of the victim suffered severe bodily pain for a period of 20 days or unable to follow his ordinary pursuits. So the conviction under sections 326 and 325 of the Penal Code is not proper and legal. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457 Section 323- An occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence On scrutiny of the post- mortem report, we find that no particular mention has been made of existence or non-existence of any injury to the eyes of the victim, as there is no specific column in the form of the post-mortem report for the eyes. On the other hand, the inquest report shows that injury to the eyes was noted by the SI of Police. The evidence of PWs 1 and 4 supports the FIR story that the accused-appellant caused an injury to the left eye of the victim with a bamboo stick. There remains no doubt that an occurrence took place wherein individuals of both parties were injured. Equally, there is no doubt that the accused-appellant was involved in the occurrence. However, in view of the facts and circumstances of the case. The alleged nature of the injury caused by the accused-appellant, we are of the opinion that conviction under section 323 of the Penal Code would be more appropriate and that the ends of justice will be sufficiently met if the sentence of the appellant is modified to the period already undergone by him in custody. Tthe appeal is dismissed with the modification of conviction and sentence. ...Rafiqul Islam Howlader(Md) =VS= State, [8 LM (AD) 630] Sections 323/364/379- The police has submitted charge sheet against the accused persons and the trial court also, on examination and consideration of the materials on record, found a prima facie case against the accused persons. So, The framing of charge against them was not illegal. ...Selim (Md) VS State, [8 LM (AD) 360] Section 325 r/w Section 34- The awarding of sentence for an offence punishable under Section 325 read with Section 34 IPC is concerned, the High Court was of the opinion that the respondents have already undergone some reasonable length of jail sentence as under- trials and the same, in our opinion, appears to be sufficient. It is more so because, in addition, a fine of Rs.50,000/- was also awarded. This would meet the ends of justice. We find no reason to interfere on this issue too for the following reasons. Subhash Chander Bansal =VS= Gian Chand, [4 LM (SC) 121] Section 326A— The offence of gouging out eyes falls with section 326A of the Penal Code. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529. Section 326/302/109/34 That the instant petition has been filed with oblique motive to delay and drag the disposal of the case as previously also a number of applications have been unsuccessfully filed at the instance of accused persons one after another and that the accused petitioner himself made prayer to transfer the case from the court of Druto Bichar Tribunal, Court No.1 alleging bias of the learned Judge and accordingly the High Court Division passed an order. Md. Sahidul @ Sahidul Hossain Hannan vs. The State (Amirul Kabir Chowdhury J) (Criminal 4ADC 794 The Penal Code (XLV of 1860) Section 326A That there being inordinate delay in lodging the F. I. R and there being no evidenced whatsoever of recognition of the accused the Judgment passed by the High Court Division is not above board. The State vs Moniruzzaman Kazi alias Thanda Kazi (Syed J. R. Mudassir Husain CJ) (Criminal)3ADC 392 Section 326 r/w sections 149 and 304- We are of the view that conviction of the petitioner under section 326 read with sections 149 and 304 of the Penal Code was not justified. The evidence on record reveals that the leave-petitioner, in fact, committed the offence under section 323 of the Penal Code. Therefore, the leave- petitioner is acquitted of the charge under sections 149/326 and 324 of the Penal Code but he, is, however, convicted under section 323 of the Penal Code and his sentence is reduced to the period he has already undergone. ..... Jaher Miah (Md.) =VS= The State, [4 LM (AD) 366] Section 328, 420 That the prosecution witnesses having been believed by the learned trial Judge. the High Court Division erred in law in discarding the evidence of the prosecution witnesses for some artificial reasons not warranted by law. The State vs Abul Kalam (Amirul Kabir Chowdhury J) (Criminal) 3ADC 87 Section 336/34, 366, 365 Courts below failed to appreciate that the informant of the case is not the law ful guardian or custodian of victim Rahim Kahtoon and the victim was not taken out of the keeping or lawful custody of the informant and in the instant case none of the courts below considered the evidence of D. W. I the admit- ted mother of the victim where she stat- ed that her daughter was not kidnapped by anybody but was given marriage to accused Rashid by herself and as such no offence under Section 366/34 of the Penal Code was constituted and the petitioners were not liable to be convicted for the offence as alleged. Dulal @ Md. Dulal Talukder vs The State (Amirul Kabir Chowdhury J) (Criminal)3ADC 422 Section 341/320/302/34 The story of the alleged dying declaration also appear to be concocted P. W. 2 did not divulge the story of her recording a dying declaration to anybody else for a long period and the recorded declaration did not see the light of the day at least within who months from its date . A dying declaration recorded by a close relative of the victim and which was kept secret for an unusual period cannot inspire confidence and apparently appears to have been concocted with ulterior motive. Mainul Islam vs The State (Amirul Kabir Chowhdury J) (Criminal) 3ADC 424 Section 342— An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence. Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman and others vs State 51 DLR (AD) 33 Sections 361, 363 & 366A— Age of majority and guardianship—Decision as to custody of a minor pending criminal proceedings—Neither personal law nor Majority Act is relevant for the purpose. The statute that holds good is the Penal Code. If the allegations are that of kidnapping of a minor girl, then for the purpose of her custody, the court has to proceed on the basis that she is a minor if she is under 16. If however the allegations are that of procuration of a minor girl, the court has to proceed on the basis that a girl is a minor who is under 18. Wahed Ali Dewan vs State and another 46 DLR (AD) 10. Section 362- After school hours, Trisha was going home, but was prevented by the appellants from going there and she had to go to Khapara lane because of the chase led by the appellants and thus, she was compelled to go from one place to other within the meaning of section 2(Kha) of the Ain and chasing definitely involved the element of threat within the meaning of definition of "অপহরণ". The appellants committed the offence under section 7 of the Ain. High Court Division suffered from the intuition that "কোন স্থান হইতে কোন ব্যক্তিকে অন্যত্র যাইতে বাধ্য করা" must be a far place. High Court Division was obsessed with the definition of abduction as given in section 362 of the Penal Code in coming to the finding that there had been no abduction, but there was an attempt to abduct. (PER MD ABDUL WAHHAB MIAH J, MAJORITY). Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111 Sections—363 and 361 Custody of a victim girl, if the allegations are that of kidnapping of a minor girl out of the keeping of the lawful guardian. Kidnapping of a minor girl out of the keeping of the lawful guardian is an offence under Section 363 of the Penal Code. For the purpose of custody of the victim girl as may be prayed for in the criminal Court in a pending proceeding, the Court has to proceed on the basis that the female is a minor under sixteen years of age as laid down in section 361 of the Penal Code. For proving the offence of kidnapping the minority of the victim will have to be established at the trial. Md. Wahed Ali Dewan Vs. The State and another, 14BLD(AD)32 Sections 363 & 366A— A minor to be taken out of the lawful custody of her guardian as under section 363 must be a minor under 16. A minor under 18 would be referable to section 366A. She cannot be allowed to go whether she attains the age of 18 years. Dr Bimal Kanti Roy vs State and othrs 46 DLR 541. Section 364/302/301/34 The petitioner was tried on the charge of kidnapping one Raisuddin uncle of informant Abu Taher on 10.09.1991 and thereafter murdering him and causing disappearance of evidence by conceal- ing the dead body. Army Habilder Abdul Gafur vs. The State (Amirul Kabir Chowdhury J) (Criminal)4ADC 988 Section 366A— The FIR was lodged under section 366A of the Penal Code. The offence under section 366A is related to a girl under the age of 18 years and not under the age of 16 years. Nurunnahar Khatun vs State 46 DLR 112. Section 366A— In an interlocutory matter concerning custody of a girl, to give a final judgment on her age is to decide an aspect of the merit of the case which is decisive of the case itself. After the decision has been given that the girl is quite major above 18 years, can there be any purpose for a trial which is still pending? The learned Judges should have made it very clear that the finding made by them as to the age of the girl was only for the purpose of deciding the present custody of the victim girl and the trial Court was free to take its own decision upon considering the evidence to be led in the case. That having not been done, it must be said that the impugned judgment suffers from at least impropriety having usurped the powers of the trial Court in a pending criminal case. Khairunnessa vs Illy Begum & another 48 DLR (AD) 67. Section 366A—Age of girl—Physi­cal appearance—Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In some cases physical development may take place which may be regarded as precocious while in some other cases there may not be as much development as is natural with the passage of time. Having regard to the fact that the available materials supported the claim of the mother that the girl was aged about 15/16 years except the statement of the girl herself, the High Court Division cannot be said to have acted judiciously in ingnoring the materials and relying on the statement of the girl and their own observation of the girl. The mother has a reasonable grievance to make against the judgment which does not seem to have been passed upon a proper appreciation of the materials on record and far less keeping in view the welfare of the victim girl alleged to be a minor. Khairunnessa vs Illy Begum and another 48 DLR (AD) 67. Section 375- Rape-The victim, being a minor, was not handed over to her parents who are her best well-wisher PW 1 being convener of Mohila Parishad under took the matter for prosecution beyond the knowledge of her parent. As such High Court Division disbelieved the entire story of commission of rape on the person of a minor girl which deserves no interference. (PER MD ANWARUL HAQUE J, MAJORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218 Section 375-Rape-A case of rape is not proved simply because the wearing apparel of the raped victim was not produced to the investigating officer and no expert examination took place, Sexual intercourse with a girl below the age of 14 years is ipso facto rape. (PER MD IMMAN ALI J, MINORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218 Section 375-Rape-A 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (PER MD IMMAN ALI J, MINORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218 Section 375-Rape-Section 2(গ) or the Ain, has explained 'rape', "ধর্ষণ শব্দটি” Penal Code (Act XLV of 1860) এর section 375 এ উল্লিখিত "rape" শব্দটির ন্যায় একই অর্থ বহন করিবে।" According to section 375 of Penal Code mere penetration is sufficient to constitute rape. Syed Sajjad Mainuddin Hasan @ Hasan vs State, 70 DLR (AD) 70 Section 376- Sentencing For Rape- According to Ashworth, the features of many rapes are severe emotional and psychological trauma, sometimes involving fear of pregnancy and sexually transmitted diseases and continuing sense of insecurity. Most rapes involve violence or threat thereof and other sexual indignities. The offence, in Hirsh and Jareborg's terms, poses a threat to physical integrity, which is compounded by humiliation and deprivation of privacy and autonomy. The typical effect on the victim is minimal well being and the culpability is generally high. (Para-866); ...Allama Delwar Hossain Sayedee VS Government of Bangladesh, [2 LM (AD) 76] Section—376 The offence committed by accused appellant finds corroboration from the medical report, namely the report of P.W. 1 who found marks of violence on the person of the victim and opined that this is a case of rape. The evidence of the witnesses has clearly established that accused appellant committed the crime of rape on victim Kazal Rekha. The learned Judge has rightly found the accused guilty of the offence under section 376 of the Penal Code. Tofazzal Hossain Khan Vs The State, 17 BLD(HCD)306 Section—376 Cruelty To Woman (Determent Punishment) Ordinance, 1983 (LX of 1983) Section—4(b)(c) The High Court Diyision on consideration of evidence of PWs rightly found that accused-petitioner Bazlu raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim girl Mahinur Begum and as such the finding of conviction and sentence of the High Court Division are based on proper appreciation of evidence on record. Bazlu Talukder Vs The State, 20 BLD (AD) 227 Section 376- Committed rape- It is fairly well-settled that in the absence of external injury on the person of the prosecutrix, it cannot be concluded that the incident had taken place with the consent of the prosecutrix. It depends upon the facts and circumstances of each case. The impugned judgment of the High Court reversing the conviction of the respondent to acquittal, cannot be sustained and the same is liable to be set aside and the judgment of the trial court convicting the respondent under Section 376 I.P.C. is to be restored. The trial court has sentenced the respondent-accused undergo to imprisonment for a period of seven years. Accordingly the appeal preferred by the State is allowed and the conviction of the respondent-accused under Section 376 I.P.C. as passed by the trial court is restored. However, the period of sentence of seven years, as noted above, is reduced to four years. In case the respondent has not already undergone the sentence of imprisonment of four years, he is to surrender to custody within a period of fours weeks from today to serve the remaining sentence failing which he shall be taken to custody.......State of Madhya Pradesh -VS- Preetam, [5 LM (SC) 96] Section 376- Sex after obtaining consent by false promise to marry is rape- Rape is a crime against the entire society and violates the human rights of the victim The accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inspection the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception. As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamounts to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellantaccused for the offence punishable under Section 376 of the IPC. The appellantaccused must face the consequences of the crime committed by him. We are of the opinion that both the Courts below have rightly convicted the appellantaccused under Section 376 of the IPC. We also maintain the conviction of the appellantaccused under Section 376 of the IPC. The sentence of 10 years' RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC. The present appeal is partly allowed to the aforesaid modification in the sentence only....Anurag Soni =VS= State of Chhattisgarh, [6 LM (SC) 77] Section—379 When growing of the case crops by the complainant and the cutting and dishonestly and taking away of the same by the accused are proved, the accused is guilty of theft under section 379 of the Penal Code. In such circumstances, no plea of bonafide claim of right to the case land can save the accused from the criminal liability. Md. Motaleb Sardar and others Vs. The State and another, 19BLD(HCD)407 The submission that having regard to the evidence of the informant that the articles stolen from his house were worth about Tk. 5,000/- only, the Village Court had exclusive jurisdiction to try the case and the learned Magistrate acted illegally and without jurisdiction is an afterthought submission in that neither in the trial Court nor before the High Court Division this question was ever raised. The petitioner is not permitted to raise this question for the first time before the Appellate Division. Haider Ali Khan Vs. The State, 14BLD (AD)270 Section—379 Theft and bonafide claim of right It is well-settled that a co-sharer in exclusive possession of a parcel of land is entitled to maintain his possession therein to the exclusion of his co-sharers until the ejmali property is partitioned by metes and bounds but before effecting such partition the co-sharers or co-owners out of possession have no right to disturb his possession, not to speak of cutting and taking away crops grown by him. In such a case the bonafide claim of right in the land cannot extend to cutting and taking away crops grown by a co-sharer in possession. Bonafide or contested claim of right is no defence against a charge under section 379 of the Penal Code for cutting and taking away crops grown by the co-sharer in possession. Nasiruddin Shah and others Vs Nazrul Islam and others, 18BLD (HCD) 634 Sections 379 & 447— When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others vs State and another 51 DLR 278. Section 380 – Allegations of theft by husband against wife do not constitute punishable offence Allegations of theft made by the husband against the wife during the subsistence of marriage do not constitute punishable offence. The learned judges of the High Court Division having found the proceedings abuse of the process of the court quashed the same in exercise of the power under section 561A Cr.P.C. Sabina Rahman Mukti and others Vs .The State 13 MLR (2008) (HC) 347 Sections 383, 384, 386 & 387- The application of sections 386 and 387 of the Code are confined to cases which remain only upto the stage of 'threat', but once the act of extortion is actually committed, sections 383 and 384 of the Code come into play. Mustaq Ahmed vs State, 64 DLR 301 Sections 384, 511, 420 and 120B- Voice sample for the purpose of comparison- The Appellants demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks. The FIR was registered against the Appellants for offences under Sections 384, 511, 420 and 120B of the Penal code. Our directions ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. Sudhir Chaudhary =VS= State (NCT of Delhi), [1 LM (SC) 615] Section 385/109/34 Obtain bail in the instant case filed against her under Sections 385/109 of the Penal Code. .....(2) Government of Bangladesh vs. Sheikh Hasina and another (Md. Abdul Matin J) (Civil) 5ADC 541 Sections 386, 387 & 390— The distinguishing element between extortion and robbery or dacoity is not the presence of the offender but the presence of imminent fear and also the delivery of possession of goods to the offender, the actual delivery or possession of property by the person put in fear is the essence of the offence of extortion. Where a person through fear passively allows, his property to be taken away the offence committed will be robbery or dacoity and not extortion. The Special Tribunal had no jurisdiction to try this case as the offence alleged against does not come either under section 386 or section 387 of the Penal Code, but it is more in the nature of a robbery or a dacoity. Dulal Howlader and others vs State 48 DLR 269. Section 391- In order to commit 'dacoity', there must be at least five persons as contemplated by section 391 of the Code. Naturally a question arises as to whether the four accused, can be convicted and sentenced under section 396 of the Code. There is an illuminating decision in the case of Abdul Wahed vs State, 8 DLR 50. Akbar Ali Lalu alias Roni vs State, 66 DLR 134 Section 391 and 396-Dacoity- Attempt in committing dacoity is also dacoity-Taking away of any booty from the victim or informant is not any pre- condition of dacoity rather an attempt in committing dacoity is also dacoity. State vs Delwar Hossain, 64 DLR 356 Section 392,411 The learned Advocate for the petitioner could not point out to any tangible mate- rial on record to substantiate the submission that petitioner was entitled to be discharged from the charge framed against him. Ali Akbor Khan vs The State (Md. Ruhul Amin J) (Criminal) 3ADC 64 Section—392 Punishment for robbery Section—394 Punishment for voluntarily causing hurt in committing robbery In view of the fact that the two appellants and some other unidentified persons illegally confined the informant shop-keeper and others in the shop and by curtailing their liberty forcibly looted away valuable goods from their possession but without causing hurt to anybody, the appellants committed the offence punishable under section 392 of the Penal Code not under section 394. Gohar Ali and another Vs. The State 16BLD (HCD) 398 Penal Code, 1860 Section 394- Charge held established – Recognition by voice Code of Criminal Procedure, 1898 Section 154 – Delay in lodging FIR when explained is not fatal for the prosecution In the instant case the convict-petitioner remained absconding after his release on bail and the trial was held in his absence in which he was convicted and sentenced. The delay of two days in lodging F.I.R was satisfactorily explained. The plea that the petitioner is not the actual accused which the apex court rejected as it is raised at such a belated stage. It is further held the charges were amply proved and the recognition of the accused by voice was established. The Appellate Division in the facts and circumstances dismissed the leave petition. Rana (Md.) Vs. The State, represented by the Deputy Commissioner, Joypurhat 15 MLR (2010) (AD) 173. Punishment for robbery Punishment for voluntarily causing hurt in committing robbery When it is found that robbery has been committed by the accused persons without causing hurt to anybody, the offence comes within the mischief of Section 392 and not under Section 394 of the Penal Code. Gohar All and another Vs. The State, 16BLD(HCD)398 Penal Code, 1860 Section 394- Charge must be established by consistent and reliable evidence In a criminal trial the charge framed should contain specifically the particulars of time, place and manner of occurrence. Again the court must bring to the notice of the accused while being examined under section 342 Cr.P.C. The incriminating materials on record. The charge shall have to be proved by consistent and credible evidence. When the mandatory requirements are not complied with, such non-compliance causes prejudice to the accused occasioning failure of justice and as such the conviction and sentence passed therein cannot be sustained in law. Shahid Mia and another Vs. The State and another 13 MLR (2008) (HC) 303. Section—394 Non-examination of investigating officer does not always prejudice the accused Admittedly the appellants remained in abscondence during the whole trial and in such a situation the non-examination of the investigating officer cannot be said to have caused any prejudice to the appellants. Gohar Ali and another Vs. The State 16 BLD (HCD) 398. Section 394 The informant was accompanied by other employees of the company at the time of occurrence and as such they are most natural witnesses of the occurrence. We are, therefore, of the view that examination of the said witnesses though belonging to informant's company has not damaged the prosecution case. Mohammad Salim Ahmed vs The State (Amirul Kabir Chowdhury J) (Criminal)3ADC 496 Penal Code, 1860 Section 395 and 397 – Offence of dacoity Code of Criminal Procedure, 1898 Section 439- Allowing the benefit of acquittal to non-appealing convicts Confessional statement of an accused cannot be used against other co-accused without corroboration. When the conviction and sentence is not based on any legal evidence the same cannot be sustained in the eye of law. Benefit of acquittal can well be allowed to non-appealing convicts. Abdus Sattar @ Sottar Vs. The State 11 MLR (2006) (HC) 367. Section—395 Dacoity is usually committed at dead hours of the night and in that view of the matter the means of recognition is of vital importance. The Court is to scrutinise the evidence of witnesses with great care and caution in respect of recognition of the accused persons. Where the informant’s testimony remains uncorroborated and the identity of the accused is not established beyond reasonable doubts, it is unsafe to convict the accused persons. Kuti alias Bellal and others Vs. The State, 15BLD (HCD) 9 Section—395 In a case of dacoity committed in the darkness of night the question of recognition is of vital importance. When the only eye witness to the occurrence does not state in his evidence about the means of recognition of the alleged dacoits, the order of conviction cannot be sustained. Subal Chandra Das Vs. The State, 15 BLD (HCD) 121 Section 395, 397, 412 As the accused had no knowledge that the 13 barrels of oil recovered from his custody were the subject matter of the dacoity and none of dacoits identified the accused to be in dishonest possesion of the recovered 13 barrels of stolen oil and that the accused-petitioner has been languishing in jail custody for the last 2 years and having been found guilty under section 412 of the Penal Code, ends of justice would be best. Ali Akbar@ Ali Abkar Dewan vs The state (Mohammad Fazlul Karim J) (Criminal) 3ADC 746 Section 395, 397, 109, 409, 414 In a suit of this kind the trial Court and the appellate Court are not required to sit in judgment over the findings of either the Enquiry Officer or the punish- ing authority as no Court has jurisdic- tion to act as an appellate authority sit- ting on appeal over the findings of a domestic tribunal. No Court has the jurisdiction to substitute its own finding for that of the Enquiry Officer or the punishing authority, as the case may be. The trial Court and the appellate Court cannot assume the role of a fresh fact- finding body over which either the Enquiry Officer or the punishing author- ity has already made their respective exercises in a domestic proceeding. The Trading Corporatin of Bangladesh vs Kazi Abdul Hye (Mustafa Kamal JKCivil) 2ADC 206 Section 396- The measure of punish- ment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Akbar Ali Lalu alias Roni vs State, 66 DLR 134 Section 396- Review- It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review- It is well settled that a party is not entitled to seek review of a judgment for rehearing and fresh decision in the case and that there are definite limits of exercising the power of review. From the judgment of this Division, it appears that this Division, considering the evidence P.Ws. 21,22,24,25,26,27 and 30, drew conclusion that the arms, seized from the exclusive custody and control of the review petitioner, was used for killing of victim Khalaf which was a strong circumstance to connect the petitioner with the occurrence of killing the victim. It is evident that the petitioner is a professional and hardened criminal and that the offence was committed by him in a brutal and diabolical manner on a foreign diplomat, for which, the respect and image of the country in the international arena has been affected seriously so it is the duty of the Court to award appropriate punishment. Accordingly, the Courts did so. No excuse or circumstance can mitigate such a treacherous and cowardly act. The review petition is dismissed. ...Saiful Islam alias Mamun -VS- The State, [8 LM (AD) 623] Section 396- We are also of the view that the offence under Section 396 IPC is to be viewed with seriousness, especially, when the dacoits are armed. But in the case in hand, the accused were not armed. Accused Babu @ Nawab Sahib is alleged to have sat on deceased Muthukrishnan and pressed his nose and mouth and is alleged to have tightened his neck with the rope. The occurrence was of the year 2002. Considering the long lapse of time and the facts and circumstances of the case, the sentence of imprisonment for life is modified as ten years as directed by the trial court. Shajahan =VS= State Rep. By Inspector of Police, [4 LM (SC) 115] Section 396— Dacoity with murder—When a murder is not committed in the course of committing dacoity there can be no conviction under section 396 of the Penal Code. Since the prosecution has failed to prove the commission of dacoity and murder of victim Tajul by the condemned-prisoner and his associates by any cogent and reliable evidence the order of conviction is not sustainable in law. State vs Mesbahuddin 49 DLR 245. Section 396 It is on record that the accused Mafizuddin was arrested on 22.08.1997 and he was produced before the recording Magistrate on 24.08.1997 and there is no explanation for delay in producing the condemned prisoner Mafizuddin before the recording Magistrate within the specified time. The State vs Mofizuddin and others (M. M. Ruhul Amin J) (Criminal) 3ADC 840 Section 396 Dacoity was committed in the house of the informant In course of dacoity the informant, P.W.1, recognized some dacoits. The police thereafter took up investigation, visited the place of occurrence, prepared the sketch map with separate index, examined witnesses and recorded their statement under section 161 of the Code of Criminal Procedure: Saiful Islam Shaikh vs. The State, represented by the Deputy Commissioner, Gopalgonj (Md. Joynul Abedin J) (Criminal) 4ADC 984 Section—396 In absence of any evidence of dacoity by any of the witness and in absence of any recover of any article taken away during the dacoity from the possession of any of the accused person it can be safely said that the prosecution has hopelessly failed to prove the case of dacoity and therefore the charge under section 396 P.C. must fail on the ground of absence of evidence to prove any of the ingredient of section 391 of the Penal Code. The State Vs Md. Abdul Ali and others Vs The State, 20BLD(HCD)327 When a murder is not committed during commission of the dacoity there can be no conviction under Section 396 of the Penal Code. The State Vs. Mesbahuddin, 16BLD (HCD)533 Penal Code, 1860 Section 396- Charge need to be proved by legal evidence- Code of Criminal Procedure, 1898 Section 164- Confessional statement recorded by Magistrate after keeping the accused in police custody beyond the statutory period is held to be not voluntary. In case of capital punishment the charge must be proved by legal evidence beyond reasonable doubt. Confessional statement of an accused recorded under section 164 Cr.P.C. keeping him in police custody beyond the specified period without explanation is held not voluntary and as such cannot be the basis of conviction without independent corroborative evidence. State Vs. Mofizuddin and others 11 MLR (2006) (AD) 76. Penal Code, 1860 Section 396- Offence of dacoity- Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266. Penal Code, 1860 Section 396- For the Commission of dacoity with murder every member of the gang is equally liable. Evidence Act, 1872 Section 134- No particular number of witness is required to prove the charge. Conviction and sentence may be based on evidence of a solitary eye witness- Section 27- Statement of an accused in police custody leading to the recovery of incriminating material is admissible in evidence- Alibi taken must be established by the accused by producing convincing evidence. Code of Criminal Procedure, 1898 Section 164 – Confessional statement of an accused has to be recorded in accordance with the provisions of section 364 Cr.P.C. Absconsion of an accused from immediately after the occurrence may be a circumstance pointing at the guilt of the accused. Sentence must be proportionate to the nature and gravity of the offence committed. In order to secure conviction of an accused the prosecution must prove the charge against him by consistent and reliable evidence beyond all reasonable doubt. Evidence of a solitary eye witness can be the basis of conviction. Confessional statement though not binding upon other co-accused may be considered as corroborative evidence against the other co-accused and along with other evidence can form the basis of conviction. State Vs. Gaush Mea @ Rana (Md.) and others 11 MLR (2006) (HC) 417. Penal Code, 1860 Section 398- Charge held not proved beyond doubt when the evidences are sharply contradictory and material witnesses are withheld- In the instant case the Investigating officer and the Magistrate who recorded the confessional statement of the convict appellant have not been examined by the prosecution without any satisfactory explanation. On the contrary the evidences of the witnesses so far examined are full of contradictions. In such circumstance the learned judges of the High Court Division held the charge not proved beyond reasonable doubt and acquitted the convict-appellants. Latif alias Md. Latif Miah and Rabiuzzal Hossain Vs. The State 13 MLR (2008) (HC) 410. Penal Code, 1860 Section—405 Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted, whether will establish the fact of criminal misappropriation? The expression ‘property’ occurring in section 405 of the Criminal Procedure Code should not be given a narrow construction. Blank forms of tickets are also property when the same are converted into tickets after sale. Mere delay in payment of money entrusted to a person, when there was no particular obligation to pay at a certain date, does not amount to misappropriation. Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted will not establish the fact of criminal misappropriation, if mens rea is not established. The prosecution must also establish, apart m entrustment that the accused had dishonestly misappropriated the property entrusted. A.H.M. Siddique Vs. The State 13BLD (HCD)85 Ref: 9DLR(SC) 14; 3lCr.L.J.(1930)1198; A.I.R.( 1940)330;AIR(1976)(SC) 1966—Cited Criminal Misappropriation Audited and approved accounts-No guarantee against criminal prosecution Even if the accounts of a company are audited and approved the same cannot exonerate persons in charge of management of the company from facing a criminal trial on allegations of misappropriation of funds of the company by falsification of accounts and concealment of documents, in the absence of any specific bar under any law. KhorshedAlam Vs. Azizur Rahman and another, 15BLD(HCD) 639 Criminal misappropriation Mere inability to pay back a sum of money entrusted, the sale proceeds of a prop- erty entrusted will not establish the fact of criminal misappropriation, if mense rea is not establish. The prosecution must establish, apart from entrustment also that the accused had dishonesty misprinted the property en- trusted-Penal Code; S.405 A.H.M. Siddique Vs. The State, 13 BLD(HCD)85 Sections 405, 415- Difference between cheating and breach of contract- In every case of cheating there is implicit agreement between the parties. The vital factor to be considered is whether at the time of agreement there was intention to carry out the terms of the contract or not. If there is nothing to show that there was no intention at the time of agreement which was arrived at, but the failure to fulfill the terms of the agreement was the subsequent event, the offence of cheating cannot be said to have been committed. It would only be a case of breach of contract. Prof. Dr. Motior Rahman =VS= The State & another, [1 LM (AD) 587] Section 405-When section 405 defines 'criminal breach of trust' speaks of a person being in any manner entrusted with the property, it does not contemplate the creation of a trust with all the techni- calities of the law of trusts. It contemplates the creation of a relationship whereby the owner of the property makes it over to another person to be retained by him until certain contingency arises or to be disposed by him on the happening of a certain event. State vs Md Abul Hossain, 64 DLR (AD) 39 Sections 405/406-In cases of criminal breach of trust, the failure to account for the property or money proved to have been entrusted with the accused or giving false account as its use is generally considered to be a strong circumstance against the accused. State vs Md Abul Hossain, 64 DLR (AD) 39 Sections 405/406/420-Transaction of loan money under a loan agreement do not operate as an entrustment under section 405 of the Code. When there is no entrust- ment, there cannot be any trust. If there is no trust, there cannot be a question of criminal breach of trust. In the transaction of loan, the loan giver does not hold any control of the loan amount and, as such, it constitutes no breach of trust. If there is any breach of contract, the remedy is in the civil suit. Sadiul Alam vs State, 64 DLR 146 Section 405 and 409-The word 'entrustment' is not necessarily a term of law and may have different implications in different context. Once entrustment is proved, it is for the accused to explain as to how he dealt with money. If explanation is not acceptable, the offence under section 409 stands proved. Mostafa Kamal vs State, 66 DLR 534 Sections 406 and 420-Impugned proceeding, filed under sections 420/406, is pending before the trial Court and no order of conviction has yet been recorded. Therefore, section 403 of the Code of Criminal Procedure is not applicable. On the other hand, section of General Clauses Act is not applicable in the facts and circumstances present case, in as much as, section 26 bars punishment twice for committing the same offence, but it does not bar prosecution or conviction for committing the same offence. Nurul Islam vs State, 69 DLR 308 Sections 406 and 420-The offence committed under sections 420 and 406 are totally different from one committed under section 138(1) of the Negotiable Instru- ments Act, 1881, while the ingredients as, well as, the reliefs and punishments provided for, under two laws are different. Section 138(2) provides for imposing fine and to pay fine, to the extent of face value of the dishonoured cheque, to the 'payee'/ complainant. Section 138B provides for depositing not less than 50% of the dishonoured cheque in the trial court, for preferring appeal against conviction under section 138 of the Negotiable Instruments Act, 1881. There is no such provision under section 420 or 406 of the Penal Code. Besides, joinder of offence committed under section 138(1) of the Negotiable Instruments Act is not permitted with one committed under the Penal Code. Nurul Islam vs State, 69 DLR 308 Sections 406/420— Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial deception has also been alleged. The High Court Division rightly quashed the proceeding. Rafique (Md) vs Syed Morshed Hossain and another 50 DLR (AD) 163 Sections 406/420 The writ petition was filed seeking analogous hearing of C.R. Case No. 437 of 2007 under sections 406/420 of the Penal Code Pending before the Metro- politan Magistrate, Dhaka and C.R. Case no. 63 of 2007 allegedly arising out of same incident pending before the Judicial Magistrate, Rajbari. The High Court Division summarily rejected the writ petition on the ground that the mat- ter cannot be dealt in the writ jurisdic- tion. Md. Abdul Beset Nannu vs. Judicial District Magistrate (Μ.Μ Ruhul Amin CJ) (Civil) 7 ADC 178 Sections 406/407 and 408- Value of statement of who was not examined in the case as a witness in accordance with law- The Appellate Division observed that the High Court Division set aside concurrent findings of fact by placing reliance on the statement of a witnesses, who was not examined in the case as a witness in accordance with law, in disregard and derogation of the evidence on record and as a result, there has been a grave failure of justice. .....Md. Abdul Awal =VS= Md. Abdul Barek & another, [1 LM (AD) 492] Sections 406/420- It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant. Sree Gopal Chandra Barman =VS= Md. Nasirul Hoque, [1 LM (AD) 495] Sections—406 and 420 The question of offence of cheating, whether arises when there is nothing to show that any entrustment of property was made to the accused? The question of offence of the cheating does not arise (in the instant case) as there is nothing to show that the accused has dishonestly induced the complainant to sell the fish to him on credit. There is nothing to show that any entrustment of the fish was made to the accused for sale of fish on credit according to the direction of the person making the entrustment. Md. Islam Ali Mia alias Md.Islam Vs. Ama! Chandra Mondal and another, 13BLD (AD)28 Sections—406/420 There is no specific promise for payment by any specific date and as such the High Court Division did not find any existence of initial intention for deception on the part of the accused petitioner. What happened between them was in due course of normal and regular business transaction for which no criminal action lies. At best the informant may go for civil action against the accused petitioner. Mohiuddin Md Abdul Kader Vs The State and another, 20 BLD (HCD) 499 Ref: 18BLD(AD)289; 49DLR(AD)180—Not applicable Sections—406/420 The allegations made in the petition of complaint it clearly shows that the petitioner had initial intention to deceive the complainant and thereby misappropriated the money. So, it cannot be said that it is a case of civil nature. The petition of complaint undoubtedly discloses criminal offence against the accused-petitioner. The Appellate Division held that the High Court Division rightly refused the prayer for quashing the proceeding. Abu Baker Siddique Vs. The State & anr, 18BLD (AD)289 Sections—406/420 Dishonouring of the cheque itself does not constitute the offence of cheating. As regards the argument that the accused- petitioner issued a cheque knowing fully well that he had no money in the account and that conduct amongst to cheating we are of the view that dishonouring of the cheque itself does not constitute the offence of cheating. Md Motaleb Hossain Vs The State and another, 20BLD(HCD)573 Ref: Md. Asaduzzaman Vs. Salamatullah, 1 9BLD( 1999) (HCD)46 1—relied. Penal Code, 1860 Section 406 and 420- Charge of misappropriation and cheating when does not lie- Code of Criminal Procedure, 1898 Section 561A- Quashment of proceedings disclosing no offence for preventing abuse of the process of the Court. The members of the partnership or Managing Director of Private Limited Company are the trustees of the money held in their control for running the business. No charge of misappropriation and cheating under section 406 and 420 of the Penal Code lie against them. Remedy lies in suit for accounts to be filed in appropriate forum. Therefore the, apex court quashed the proceedings. Anarul Islam (Md.) and others Vs. The State and another ii MLR (2006) (AD) 198. Penal Code, 1860 Section 406 and 420- Appropriation of loan money does not constitute offence of criminal misappropriation. Transfer of Property Act, 1882 Section 66 – Disposal of mortgaged property on imminent danger of destruction. Title of money taken on loan passes to the loanee and as such appropriation thereof does not constitute offence punishable under section 406 and 420 of the Penal Code. Moreover the loanee is entitled under section 66 of the Transfer of Property Act, 1882 to dispose of the mortgaged property under danger of being perished. Mahbub Alam Khan (Md.) Vs. The State 14 MLR (2009) (HC) 197. Penal Code, 1860 Section 406 and 420- Prevention of Corruption Act, 1947 Section 5(2) – Restriction on transfer of imported duty free vehicle by M.P. is three years. The transfer made after the expiry of the period of restriction for three years, the transfer of the vehicle imported duty free by a member of the Parliament does not constitute offence punishable under section 406, 420, 109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. The proceedings being abuse of the process of the court the learned judges of the High Court Division quashed the same. Showkat Ail (Mohd.) Vs. National Board of Revenue, represented by its Chairman and others 14 MLR (2009) (HC) 224. Penal Code, 1860 Section 406, 420, 467, 468, 476, 121A and 109- Proceeding drawn on allegations of criminal misappropriation and cheating. When a money suit has been instituted for realisation of money due on account of supply of certain goods, the subsequent criminal proceedings over the self same matter is held by the learned judges of the High Court Division not competent as being one aimed at harassing the party accused therein and as such quashed the same. Mark Parco and others Vs. State and another 13 MLR (2008) (HC) 350. Penal Code, 1860 Sections 406, 409, 467, 468 and 471- Allegations of forgery can be decided at the time of trial. As the allegations of forgery can be decided at the time of trial and as the charge in the instant case has not yet been framed, the proceedings cannot be quashed at this stage. Since the alleged document was not used as evidence in any judicial proceedings before any court, section 195(1) Cr.P.C does not stand as a bar against the present proceedings. Khizir Haider and others Vs. The State 13 MLR (2008) (AD) 157. Penal Code 1860 Sections 406 and 420- No offence is constituted when there is no entrustment and element of deception. Issuance of post dated cheque for payment of part of unpaid money arising out of contractual agreement and the dishonour of the cheque do not constitute offence punishable under section 406 and 420 of the Penal Code. The proceedings initiated thereon being abuse of the process of the court are quashed. Baby Masum and Abdul Kader Vs. State 14 MLR (2009) (HC) 458. Penal Code, 1860 Section 406 and 420- Trial of case when the offence attract both the special law and general law. Emigration Ordinance, 1982 Section 23- offence of receiving money on the pretext of providing foreign employment – The offence under section 23 of the Emigration Ordinance is triable by special court consisting of the chairman labour court. Such special court cannot try offence under other law. In the instant case the ingredients of both the offence under Penal Code and special law are present. The learned judges of the High Court Division held that the proceedings either in the special court or in the ordinary court are maintainable. Phulbanu alias Phul (Mst.) Vs. The State 15 MLR (2010) (HC) 332. Section—406/420 The alleged transaction in between the complainant and the appellant is clearly and admittedly a business transaction. The appellant had already paid a part of the money under the contract to the complainant. The failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature. The High Court Division were not justified in refusing to quash the proceeding in question although the transaction in question between the parties is clearly of a civil nature. Dewan Obaidur Rahman Vs. The State and anr, 19BLD (AD)128 Ref: 45DLR (AD) 27—relied upon Section 406 The two trucks belonging to the plain- tiffs were seized by the police in con- nection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pend- ing and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count. Abdul Quddus vs Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J)(Civil) 2ADC 938 Section 415 Since the complaints in the cases have not been filed by the person alleged to have been cheated it must be found that the complainant has no locus standi to make a complaint. Shahidul Islam (Md) vs State, 73 DLR 120. Section 415 "Property", meaning of Procuring certificate to get admission in a college-Not a 'property'-No harm to reputation is caused by attesting such certificate. Rana Muhammad Fazal Khan vs State 14 DLR (SC) 235;(1962) PLD (DC) 397. Section 415-"Property' does not depend upon its possessing a money or market value and still it may have a value for its owner. It may still be capable of being owned, possessed or transferred and, therefore, capable of creating property or legal rights in its owner, possessor, holder or transferor. Rana Md Fazal Khan va State 14 DLR (SC) 235. Section 415 "Cheating" The word 'person' occurring in section 415 includes Government-Government property in possession of Government servant is deemed to be in possession of Government. Muhammad Rashid vs State 12 DLR (SC) 207. Section 415-Initial intention to cheat must be proved-In order to constitute cheating it must be established that someone is made to part with some property on the promise of another to return something in lieu thereof which the latter had no intention to give. The intial intention to deceive, therefore, must be established in order to justify a conviction for cheating. Prithiraj Bacha vs State 10 DLR 325. Section 415-Intent to cheat must be proved to have existed at the time when the offences were committed. Subsequent conduct is no valid criterion. Where there is no clear and conclusive evidence of the criminal intention of the accused at the time the offence is said to have been committed and where the party is said to be aggrieved has an alternative remedy in the civil Court, the matter should not be allowed to be fought in the criminal courts. Abdul Awal Chowdhury vs Md Waliullah 12 DLR 520; 1961 PLD (Dac) 53. Section 415-No cheating without deception; no deception without misrepresen- tation. M Sharif Asghar vs State 11 DLR (WP) 90: 1959 PLD (Lah) 238. Section 415-Cheating under section 415 is not a prerequisite to a conviction under section 419. Md Shafiullah vs State 19 DLR 255 Section 415 When a person promises to pay price of goods and on his undertaking to pay the goods were delivered to him afterwards he fails to pay price thereof No case of cheating will lie. Md Anwar Ali vs State & Md Nezamuddin 30 DLR 327. Section 415-In order to constitute cheating it must be established that someone is made to part with some property on the promise of another to return or to give something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established to justify conviction for cheating. Intention to cheat is to be gathered from surrounding circumstances. Nasiruddin Mahmud vs Momtazuddin Ahmed 36 DLR (AD) 14. Section 415-Ingredients must be established in an offence of cheating. Shaik Obaidul Huq vs State 38 DLR 105. Section 415-A post-dated cheque in payment for goods received, if dishonoured. creates only a civil liability. Shaik Obaidul Huq vs State 38 DLR 105. Section 415-The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180. Section 415-If there is allegation that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not so made, it may be inferred that there was initial intention of deception. Asaduzzaman (Md) vs Md Salamat ullah, 52 DLR 530 Section 415-It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating and the intention is to be gathered from the surrounding circumstances. Md Arifur Rahman va Santosh Kumar Sadhu, 1994 BLD (AD) 78 Section 415 Simple dishonouring of a cheque itself is not an ingredient of cheating- To constitute an offence of cheating as described in section 415 of the Penal Code, there must be a specific allegation that the accused had initial intention in deceiving the complainant. It is also true that such intention can be gathered from the facts and circumstances because such intention normally is concealed in the mind and is not expressed. If there is allegations that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not made within the specific time, it may be inferred that there was initial intention of deception. Md Asaduzzaman Salamatullah 1999 BLD 461. Md Section 415-(a) There cannot be any criminal case simply because the petitioner failed to deliver the contracted goods within the stipulated period and thereafter refused to refund to the opposite party No.1 moneys advanced for purchase of goods by way of import. There is no allegation that the complainant retained control over her moneys paid to the accused petitioner by way of any stipulation so as to bring the acused petitioner and the complainant within the ambit of a fiduciary relationship. There being no entrustment there cannot be any offence under section 406, Penal Code. (b) In the present case essential ingredients of entrustment and cheating are missing. However, in a proper case a breach of contract may also amount to cheating or criminal breach of trust punishable under the Penal Code. Dispute being of civil nature petitioner may be liable for breach of contract. Abdur Rahim vs Begum A Morshed 3 BCR 15. Section 415 Prosecution for cheating Plea of Civil liability-The sum and substance of the complaint's case is that the accused realised a total sum of Taka 50,000 from the complainant on a promise to secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused in support of his application under section 561A CrPC was that the liability, if any, was of a civil nature for which no prosecution would lie. Since according to the petition of complainant the accused totally denied receipt of any sum from the complainant, the question of Civil liability does not arise. Abdur Rahim vs Enamul Huy, 43 DLR (AD) 173: 1992 BLD (AD) 130. Sections 415 & 420-False representation with a view to cheat need not be addressed to specific individual. It may be addressed to the public in general. MFN Rewail vs State 8 DLR 569. Sections 415 & 420-By false representation the accused induced the revenue authority to have his name mutated in respect of certain property whereas that property belonged to somebody else. The offence being detected the accused was tried for cheating under section 420 Pakistan Penal Code. On appeal it was contend that the State being the complainant and as the State was not the person who was cheated, the charge under section 420 as against the accused did not lie. Held: The conviction is valid in law. The revenue authority was the agent of the Government which granted protection to the right of the subject. Md Shafi vs State 18 DLR (WP) 151. Sections 415 & 420-Cheating-The initial intention to deceive must be established to justify a conviction for cheating. Intention of cheating shall have to be gathered from the facts of the case and its surrounding circumstances. Where there is no fraudulent intention of the accused from the beginning. there can be no question of cheating. In the absence of mens rea, mere breach of contract cannot constitute cheating. Inability to fulfil a promise or contract does not amount to cheating. Mahbubul Alam Gazi alias Mahbub Alam vs State and another 5 BLC 380 Sections 415 & 420 Cheating-Whether issuance of post-dated cheque constitutes an offence of cheating-The issuance of post- dated cheque means a promise for future payment and if future payment is defaulted on account of subsequent dispute that does not constitute any offence of cheating while there is nothing to show that the accused had any initial intention to cheat or deceive the other party- In order to constitute cheating there must be fraudulent and dishonest inducement for delivery of property-All important question to be determined is whether the intention not to pay was there when the promise was made- The subsequent failure to keep the promise to pay does not constitute cheating. Sheikh Ohadul Haque vs Rezaur Rahman Khan 1987 BLD 23. Sections 415 & 420-Distinction between cheating and breach of contract-In order to constitute cheating it must be established that one is made to part with his property on the promise of another or to give something in lieu thereof which the latter had no intention to give with a view to deceiving at the outset-The averments in the petition of complaint that the accused turned down the request for execution and registration of the sale deed on receipt of the balance of the consideration in pursuance of an agreement for sale clearly show that no criminal offence was made out-At best it may be treated as a breach of contract entailing civil liability-The distinction between the breach of contract and cheating depends upon the intention of the accused at the time of the alleged inducement, which may be judged by his subsequent acts-In the instant case facts show complete absence of dishonest intention on the part of the accused at the time when the agreement was executed between the parties- Prolongation of the proceeding in the criminal Court amounts to an abuse of the process of the Court and is therefore liable to be quashed. Shahjahan vs Atiqur Rahman 1987 BLD 164. Section 415-The word "person" in section 415, Penal Code should be held to cover "Government", unless some considerations inherent in the context of the section militate against this view. Nasim vs State 57 DLR 546. Sections 415 and 420-The complainant may initiate a criminal proceeding against them under section 420 of the Penal Code, if he is so advised. Besides, the door of the Civil Court is always open to the complainant to recover the loan amount by filing a money suit against the party concerned. Shahnaj Begum Munni va State 63 DLR 279. Section 415-In order to constitute an offence under section 415 of the Code the deception by the accused is must and such deception must be also from the initial stage of the transaction but in the instant case since the accused made a payment of Taka 38,820 to complainant in two installments, so, it is difficult for us to hold that the accused had an initial intention to deceive the complainant rather there appears part payment in the transaction. The allegations of the complainant are accepted in its entirety the same do not constitute any offence under sections 420 and 406 of the Code. Khandaker Nazrul Islam Khokan vs Mustaba Kuli Khan 19 BLC 211 Sections 415 and 420 The convict- petitioner in order to deceive the informant induced him to deliver the amount and consequently such an act of misappropriation is cleary an act of cheating as defined under section 145 of the Penal Code. Mofizuddin vs State 20 BLC 550 Sections 415 and 420-From the first information report it appears that the petitioner submitted an application for allotment of a plot at Banani from RAJUK. With the application he annexed an affidavit wherein he declared that he had no plot within the area of RAJUK, a pre-requisite condition, though he had land and building in his own name and in the name of his wife and thus he had initial intention of deception as contemplated in section 415 of the Penal Code to get the allotment of the plot in question at Banani. This, being a disputed question of fact needs to be decided by the trial Court on the basis of evidence and the petitioner will get the chance to controvert those at the time of trial. As it appears, in the meantime 5(five) prosecution witnesses have already been examined and cross-examined & thus at this stage there is no scope for quash- ment of the impugned proceeding: Advocate Ruliul Quddus Talukder Dulu vs State 14 BLC 633. Sections 415 and 420-The allegations made in the first information report and also from the charge sheet it appears that the informant's grievance is for non execution and registration of sale deed for the case land in his favour. The allegations so disclosed is for non- compliance of the agreement for sale of the case land which is a civil liability as provided in Illustration(g) of section 415 of the Penal Code for which no criminal case lies but appropriate forum is a civil suit in the civil Coun. Shafiullah Chowdhury vs State 14 BLC 774 Sections 415 and 420-The ingredients of cheating are deception of one person by another person and fraudulently or dishonestly inducing the person so deceived any property. It is therefore, evident that the allegation against the accused petitioners does not clearly falls under section 420 of the Penal Code and that the Magistrate had not rightly taken cognizance of the offence against the accused petitioners under section 420 of the Penal Code and there is foundation to allow this application under section 56JA of the Code of Criminal Proce- dure. Kamrul Hasan vs State 16 BLC 473. Sections 415 and 420-Facts disclosed in the case also make out a case under section 138 of the Negotiable Instruments Act. In such a case, it is all too open to the complainant to proceed under any of the two Penal Code laws available to him. Learned Magistrate duly applied his judicial mind into the facts and circumstances of the case and the materials on record and rightly framed charge against the accused-petitioners under section 420 of the Penal Code which does not suffer from any illegality or legal infirmity occasioning failure of justice and as such the proceeding is not liable to be quashed. Aminur Rahman (Md) vs State 8 BLC 518. Sections 415 and 420-The allegations of bouncing of cheque simplicitor does not ipso facto constitute any offence as defined under section 415 punishable under section 420 of the Penal Code and, as such, framing of charge under section 420 suffered from serious illegality. MA Sukkur vs Md Zahirul Haque, 23 BLC (AD) 148. Sections 415(1) and 420-Whenever a loan is taken by one from another on a representation to repay the same dishonestly induces the person to lend the money having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code. Ruhul Amin Howlader (Md) va Mahmuda Akter Mita, 70 DLR 56. Sections 415 and 420-The offence of "cheating" under section 420 of the Penal Code is defined in section 415 of the Penal Code. There are two ingredients namely, deceit that is dishonest or fraudulent misrepresentation to a person, inducing of a person thereby to deliver property. Fraudulent or dishonest intention is of paramount importance for constituting the offence. The question is whether it is a civil liability or criminal offence depends upon facts, whether the complainant in parting with the loan money acted on the representation of the accused and in belief of the truth thereon and the next question will be whether he had a dishonest intention. Sahabuddin Alam (Md) vs State, 74 DLR 170. Section—415 Simple dishonouring of a cheque itself is not cheating To constitute an offence of cheating as described in section 415 of the Penal Code, there must be a specific allegation that the accused had initial intention to deceive the complainant. It is also true that such intention can be gathered from the facts and circumstances of a because such intention normally is concealed in the mind and is not expressed. If there are allegations that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not made within the specific time, it may be inferred that there was initial intention of deception. Md Asaduzzaman Vs Md Salamatullah, 19 BLD (HCD) 461 Ref: 46 DLR (AD) 180; 30 DLR 327; 27 DLR (AD) 175; 1954 Crl.L.J. (SC) 1806; 10 BLD (AD) 168: 42 DLR (AD) 240—Cited Section 415— The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180. Section—415 It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating. The intention is to be gathered from the surrounding circumstances. Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD) 78 Sections 415(f) and 420-Whenever a loan is taken by one from another on a representation to repay the same dishonestly induces the person to lend the money having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code. Ruhul Amin Howlader (Md) vs Mahmuda Akter Mita, 70 DLR 56 Section 420-When a cheque is issued for payment of any amount of money, drawer of the cheque is under obligation to honour the same or arrange payment. If it does not arrange payment of the cheque money and the cheque is dishonoured, such an act may constitute an offence of cheating punishable under section 420 of the Code. Abul Khair Chandu vs State, 65 DLR 230 Section 420-Whenever any transaction of money has taken place without any written instrument the same requires to be proved by very cogent and mitid evidence. In the whole proceeding I find no tangible evidence that Dino Bondhu Sarker delivered the money to the accused petitioner. Both the Courts below without considering the material evidence on record found the accused guilty under section 420 of the Code. Abdul Aziz vs State, 67 DLR 398 Penal Code, 1860 Section 420 and 406 – Failure to execute and register sale deed pursuant to an agreement to sell property constitutes civil liability. Failure to execute sale deed pursuant to an agreement to sell land constitutes civil liability for which remedy lies in the civil court. Such allegation does not constitute offence punishable under section 420 and 406 of the Penal Code. The learned judges of the High Court Division held the instant proceedings abuse of the process of the court and as such quashed the same. Shafiullah Chowdhury and others Vs. The State 14 MLR (2009) (HC) 490. Penal Code, 1860 Section 420 – Money obtained by inducement and practice of fraud constitutes the offence of cheating. Enhancement of sentence without issue of rule is illegal. Accused appellant took money from the complainant by inducement on the assurance of sending him to America and subsequently he did not send him to America and misappropriated the money and refused to return the money. Such an act on the part of the accused appellant constituted offence of cheating punishable under section 420 of the Penal Code. The appellate court enhanced the sentence without issuing any rule which the Appellate Division held as illegal and set-aside the enhanced portion of sentence and upheld the conviction and sentence awarded by the trial court. Mokbul Hossain Howlader Vs. The State 13 MLR (2008) (AD) 181. Section 420, 448, 506, 56 It has already been settled that exercise of its inherent jurisdiction under section 561A of the Code by the High Court Division can be exercised if it appears that a legal bar against institution or continuance of the proceeding is apparently visible the complaint, or even if accepted in their entirety, do not constitute any offence and if there is no legal evidence. Selim A Khan vs Md. Harun Malik (Amirul Kabir Chowdhury J) (Criminal) 3ADC 587 Section 420 We are of the view that as a result of addition of complainant Md. Ismail as party in the Criminal Miscellaneous Case No. 13540 of 2003 as opposite party No. 2 there is no likelihood of accused petitioners being prejudiced as the said Miscellaneous Case pending before the High Court Division will be decided on merit in accordance with law. Zafar Ahmed Chowdhury and oth- ers -vs- The state (Syed J.R. Mudassir Husain CJ) (Criminal) 3ADC 751 Penal Code, 1860 Section 420 – To constitute an offence under this section the necessary ingredients must be established Dispute being of civil nature the remedy lies in the civil court. In order to secure conviction the charge must be proved by reliable evidence beyond all reasonable doubt. Unless the constituent ingredients are fully established the allegations do not attract section 420 of the Penal Code. Alhaj Abul Kashem Vs. The State 11 MLR (2006) (HC) 73. Sections 420/409/467/468/471/466 The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged cannot be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax. The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitate the importers to release imported goods without paying any tax. The Solicitor repre- sented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir HusainCJ) (Criminal)4ADC 177 Section 420,409, 471 Job on the basis of false certificate of B.Com (Pass) Examination of Tularam Government College, Narayangonj and thus practised fraud upon the Government in obtaining the job. The State vs. Md. Humayun Hafiz (Md. Ruhul Amin J) (Criminal)4ADC 705 Section—420 To sustain a charge of cheating, the prosecution must prove the initial intention of the accused to deceive. Abdul Karim Vs Shamsul Alam and another, 14 BLD (HCD) 167 Ref: 42 DLR (AD) 31; 27 DLR (AD)175; 36 DLR (AD) 14—Cited Section 420— Where a prima facie case of criminal offence has been clearly made out, the High Court Division in a proceeding under section 561A CrPC has little scope to scrutinize the truth or otherwise of any document or other evidence, which may be used as a defence in a criminal proceeding. Kamrul Islam (Md) vs Atikuzzaman 49 DLR 258. Section 420— The first information report having made out an allegation that the informant was persuaded by the petitioner to part with his money through a clever device and was ultimately threatened with murder for demanding repayment of the money, the initial intention to deceive appears on the face of the First Information Report. Nurul Islam vs State and another 49 DLR 464 The penal Code Sections 420/409/467/468/471/466 The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufacturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged cannot be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax. The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facili- tate the importers to release imported goods without paying any tax. The Solicitor represented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 177 Section 420— An offence under section 138 of the Negotiable Instruments Act is for dishonour of a cheque simpliciter for insufficiency of fund, etc. whereas an offence under section 420 of the Penal Code for cheating is a distinct offence. The rule of law about the peremptory application of the special law in place of the general law for trial of an offence hardly applies when the offences are distinct under the two laws. Nurul Islam vs State and another 49 DLR 464 Section 406 The two trucks belonging to the plain- tiffs were seized by the police in connection with the criminal case and as such the trucks were detained and the plaintiffs got the trucks released from the police custody by order of the court in which the criminal case is still pend- ing and in our opinion the High Court Division rightly held that the plaintiffs were not entitled to claim any amount on this count......(11). Abdul Quddus vs Latif Bawany Jute Mills Ltd. (M. M. Ruhul Amin J) (Civil) 2ADC 938 Section 406, 467, 468, 471, 109 That the accused persons in collusion with each other through forgery created records in the name of a false and non- existent firm. Shabbir Ahmed Chowdhury vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 832 Penal Code, 1860 Sections 408, 409, 420- Offence of misappropriation when not committed by a public servant – not triable by Special Judge. Prevention of Corruption Act, 1947 Section 5(2)- Headmaster of a private High School being not a public servant, section 5(2) is not attracted In the instant case the accused petitioner who is a Headmaster of a private High School is not a public servant within the meaning of section 21 of the Penal Code. So the offences complained of are not triable by the Special Judge. The learned judges of the High Court Division having found the impugned proceedings abuse of the process of the court and corum non-judice quashed the same. Aminul Islam Khandaker (Md.) Vs. The State 14 MLR (2009) (HC) 421. Section 408-The petition of com- plaint containing specific allegation against an employee of the Grameen Bank under section 408 of the Code should not be thrown away for legal defect giving opportunity to the offender to go scot-free. The Magistrate shall send the petition of complaint to the Commission in accordance with procedure laid down under Rules 13(3) of the Bidhimala to deal with in accordance with law. Shanik Chandra Barmon vs State, 66 DLR114 Section 409-In respect of trial of offences punishable under section 409 of the Code and section 5(2) of the Act under the Criminal Law Amendment Act, the accused-Ambassador may be tried for all such offences irrespective of dates of commission of the same. ATM Nazimullah Chowdhury vs State, 65 DLR 500 Section 409-Trial and conviction of an accused both under section 409 of the Penal Code and under section 5(2) of the Prevention of Corruption Act are legally justified; but he cannot be punished twice under the provisions of those two enactments. ATM Nazimullah Chowdhury vs State, 65 DLR 500 Section 409-Principle of vicarious liability cannot be imported in a charge for offence of criminal breach of trust. Mostafa Kamal vs State, 66 DLR 534 Section 409-The hard earned money of the people spent from the public exchequer cannot be misused at the whims and sweet wills of the accused-petitioner and others for their illegal gains and benefits. Yunus (Md) vs State, 67 DLR 97 Section 409-The accused-petitioner is an agent of the Roads and High Ways, since prima-facie, he has committed criminal breach of trust in respect of the property as described in the work order in the way of his business as an agent in misappropriating the public money and in not handing over the bhaban to the authority by constructing the same in time as per work order. Yunus (Md) vs State, 67 DLR 97 Section 409-Proceeding initiated against the accused-petitioner under section 409 of the Code is maintainable even in the absence of any public servant. Yunus (Md) vs State, 67 DLR 97 Section 409-Criminal breach of trust by agent-Any contractor is appointed by any department of the Government for construction of any building, the contractor is termed as an agent of the concerned department of the Government. Receiving the work order for construction of a bhaban by the contractor as an agent from any department of the Government is also an entrustment with property. Once the contactor as agent receives the work order for construction of a building, he is under obligation to hand over the same to the authority by constructing the same as per work order. Yunus (Md) vs State, 67 DLR 97 Sections 409 Sadharan Bima Corporation Karmachari Probidhanmala, 1992, Sections 41(Ka) No oral evidence was recorded by the Inquiry Officer to prove the allegations brought against the respondent No.1, eventually no question of cross- exam- ination of the prosecution witnesses by the writ petitioner-respondent No.1 has arisen at all. Thus, the inquiry proceed- ing in the case in hand has not been held in compliance with the provisions laid down in Probidhan 42 of Probidhanmala, 1992. In the aforesaid backdrop the impugned dismissal order of the respondent No.1 backed by flawed departmental proceeding cannot be sustainable in the eye of law......(18) Sadharan Bima Corporation vs. Md. Rafiqul Islam (Obaidul Hassan J) (Civil) 20 ADC 45 Section 409-The prosecution has been able to prove that such wrongful loss has been caused by the convict petitioner by misusing his power and authority as the Ambassador and head of Mission. All the allegations have been proved by all the Pws who corroborated each other in every detail. None of the PWs were cross examined because of the abscondence of the convict petitioner. Be that as it may, all the allegations brought against the convict petitioner for which charge were framed having been proved by the PWs and corroborated by each other, the High Court Division found him guilty of all the charges, except the allegation of renting a new residence for the Ambassador. Finding and decision of the High Court Division in convicting the convict upon modifying and reducing the sentence and fine imposed by the trial Court calls for no interference. ATM Nazimullah Chowdhury vs State represented by the Deputy Commissioner, 69 DLR (AD) 344 Section 409-Admittedly the accused petitioner was the then Prime Minister of the People's Republic of Bangladesh who accorded approval as the head of the final authority to issue work-order in favour of CMC consortium, the third lowest among the three bidders, inspite of recommenda- tion of the Chairman, Petro Bangla for re- tender which according to the respondents has caused huge loss and damage to the Public Exchequer as the same constitute criminal breach of trust. Begum Khaleda Zia vs State, 70 DLR (AD) 99 Sections 409/109-Whether the accused have committed any offence within the meaning of section 409/109 of the Penal Code read with section 5(2) of Act II of 1947 or not are to be decided after recording evidence by the trial Court. Anti- Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242 Penal Code, 1860 Section 409, 468 and 477A- Offence of misappropriation and falsification of account. Prevention of Corruption Act, 1947 Section 5(2) – Criminal misconduct- Subsequent deposit- of the money in question does not create ground for acquittal. Admittedly the convict-petitioner misappropriated the money he collected from the Rajshahi City Corporation shops and on the proof of the charges he was convicted and sentenced to various term. But subsequently he deposited the money in question. The High Court Division did not interfere with the sentence even though the amount of money misappropriated was deposited. The apex court held the High Court Division was perfectly justified in dismissing the appeal. Sirajul Islam (Md.) Vs. The State 13 MLR (2008) (AD) 118. Sections 409/420/467/468/471- Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is misappropriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropriation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this section is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541] Sections 409/109- Re-calling the P.Ws for cross examination- In our view this observation of the learned Judges of the High Court Division is uncalled for and not contemplated by settled principles of criminal justice. Any individual accused person is liable to answer the charges brought against him and the prosecution is bound to prove the charges levelled against each individual accused beyond reasonable doubt, and hence, no individual can be compelled nor can it be suggested to any accused that he should adopt the cross- examination made on behalf of another accused. Accordingly, the following words-"Re-calling our earlier observation, however, we think that justice will meet to its end if the accused-petitioner exercises option, if thinks so, to adopt the cross-examination on behalf of the other accused- petitioners, Rahman. specially of Tareq are hereby expunged. However, for the reasons stated and in view of the discussion above we do not find any illegality in rejecting the accused petitioner's application for re-calling the witnesses already examined and cross- examined. ..... Begum Khaleda Zia =VS= The State, [4 LM (AD) 353] The Penal Code read with section 5(2) of Act II of 1947 sections-409/ 467/468/471/472/190 Allegation that they prepared fictitious bills by creating advice with forged sig- natures and thereby misappropriated huge amount. Shahadat Hossain Mina vs. Governor, Bangladesh Bank (Md. Tafazzul Islam J) (Civil) 6 ADC Section 409- The provisions of Section 222(2) read with Section 234 (1) require that if there are more than one offences committed over a period of more than 12 months then the offences may not be charged in one charge, whereas Section 6 (1B) provides that any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. Clearly, therefore, the provision in the Criminal Law Amendment Act is not consistent with the provision of the Code of Criminal Procedure. Since Section 409 of the Penal Code read with Section 5(2) of Prevention of Corruption Act come within the schedule of Criminal Law Amendment Act, the offences are liable to be tried as per the provisions of the Criminal Law Amendment Act, which being special law will prevail over the general law, i.e. the Code of Criminal Procedure. ... The State =VS= Ibrahim Ali(Md.), [10 LM (AD) 385] Section 409- The accused has paid back all the money which he is alleged to have defalcated. That again cannot be a ground for acquittal, if it is found from evidence that he in fact committed the offence. Upon conviction, it is the discretion of the Court to award punishment in accordance with law and taking into consideration all the facts and circumstances of the case, including any mitigating circumstances. To that extent the period of sentence may be more or less depending on the facts of the case and the circumstances of the accused. ... The State =VS= Ibrahim Ali(Md.), [10 LM (AD) 385] Sections 409/408/467/468/471/109/420- We are of the view that it cannot be said that there exists no prima facie case against the respondent No.1. Without exhausting the trial stage, no decision can be taken regarding the allegations brought against him in the charge sheet under Sections 409/408/467/468/471/109/420 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, Section 13 of the Money Laundering Protirodh Ain, 2002, Section 4(2) of the Money Laundering Protirodh Ain, 2009 and Section 4(2)(3) of the Money Laundering Protirodh Ain, 2012. The petition is disposed of. The judgment of the High Court Division is set aside. The order of the Mahanagar Senior Special Judge so far as it relates to the present respondent No.1 is also set aside.... Durnity Daman Commission =VS= Ezbahul Bar Chowdhury, [10 LM (AD) 500] The Penal Code (XLV of 1860) Section 409. Misappropriation of 8 metric tons of wheat as has not been established beyond reasonable doubt consequently the appellant is entitled to the benefit thereof. Abdul Jalil Sarder vs The Stat (Md Ruhul Amin J)(Criminal) IADC 9 Section 409, 477A, 109 The Janata Bank Employees Service Regulation, 1995 Rule 28 (1), 49.The Fundamental Rule 29. Reducing the petitioner from the post of Senior Officer to the post of Principal Officer without arrear salary and other attending benefits was illegal and directed the Bank to reinstate the petitioner in his original post with arrear salaries etc. Janata Bank, ors. vs Mr. Khalilur Rahman (Amirul Kabir Chowdhury J) (Civil) 3ADC 81 Sections 409/109 in collusion with each other for illegal gain misappropriated Tk. 11.80,615/-by - false billing against consultancy service and thereby committed an offence punish- able under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947. Section 561A of the Code of Criminal Procedure praying for quashing the pro- ceeding and the High Court Division by the impugned judgment and order made the Rule absolute. That after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in mak- ing payment against running bills. We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we con- sider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. The State, represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram (M.M. Ruhul Amin J) (Criminal) 4ADC 264 Section 409 The order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dis- missal of the respondent No.2 was not legal. Pubali Bank Ltd. vs Chairman, First Labour Court, (Md. Ruhul Amin J) (Civil) 2ADC 12 Confiscation of property In section 409 of the Penal Code there is no provision for confiscation of the property. But the Appellate Division refused to consider this prayer of the petitioner at this stage. as this point was not specifically raised before the High Court Division and no ground was taken before the Court. Bibhuti Bushan Talukder Vs. The State, 17BLD (AD)168 The ingredients of section 409 of the Code are misappropriation to commit criminal breach of trust in respect of property over which he had dominion as public servant. The appellant had no criminal intention to commit such criminal breach of trust in respect of the property which was held within his dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding over his financial difficulties and as such the appellant is entitled to acquittal as of right. A.K.M. Mohiuddin Vs. The State, 20 BLD(HCD)172 Penal Code, 1860 Section 409- Ingredients constituting the offence must be present. Prevention of Corruption Act, 1947 Section 5(2)- Irregularities committed by public servants in course of discharge of their duties do not constitute offence of criminal misconduct. Code of Criminal Procedure, 1898 Section 417- Unless the order of acquittal suffers from non- consideration of material evidence on record or perversity no interference is warranted. Section 234(1) and 222(1) – Charge framed in violation of the mandatory provision of law- defect is not curable under section 537 Cr.P.C. In order to constitute offence of misappropriation under section 409 of the Penal Code and criminal misconduct under section 5(2) of the Act II of 1947 there must be entrustment of the property and misappropriation thereof. When the fundamental characteristics of the offence complained of are not present, no offence is committed. Fariduddin Ahmed (Md.) Vs. Ataharuddin and another 13 MLR (2008) (HC) 786. Section 409/109 In collusion with each other for illegal gain misappropriated Tk. 11.80.615/-by false billing against consultancy service and thereby committed an offence punishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947. Section 561A of the Code of Criminal Procedure praying for quashing the proceeding and the High Court Division by the impugned judgment and order made the Rule absolute. That after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in making payment against running bills. We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we consider it a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. The State. represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram (M.M. Ruhul Amin J) (Criminal) 4ADC 264 Penal Code, 1860 Section 409 – No offence is constituted unless the ingredients are found present. Where there are evidence on record that the shortage of wheat in the godown concerned could be caused by leakage of rain water, attack of insects, rates, etc. the convict-appellant cannot be held liable for the shortage and convicted and sentenced for the said shortage of wheat which in the facts and circumstances does not constitute offence of criminal misappropriation punishable under section 409 of the Penal Code. The learned judge of the High Court Division therefore set-aside the conviction and sentence as being one not established and proved by convincing and reliable evidence beyond shadow of all reasonable doubt. Zahiduzzaman (Md.) Vs. The State 11 MLR (2006) (HC) 144. Section 409— The accused having withdrawn money of the account holder PW2 upon a previous understanding between them, the trial Court misdirected itself in assessing evidence in the case in its true perspective and thereby wrongly convicted him. AKM Mohiuddin vs State 50 DLR 447. Section—409 Awarding sentence of fine along with sentence of imprisonment for life, whether can be said to be illegal. Awarding sentence of fine alongwith imprisonment for life cannot is not illegal in view of the said provisions of section 409 of the Penal Code. A.M.A. Wazedul Islam Vs. The State 13BLD (HCD)296 Section 409 – Transfer of duty-free imported vehicle does not constitute punishable offence. The petitioner a member of the Parliament and not being a public servant who imported the duty-free vehicle is the owner thereof. When he transferred the vehicle as alleged in violation of the conditions of the SRO No. 266 dated 22.8.2005 he incurred the liability of the payment of customs duties and penalties which he already paid as adjudicated by the customs authority. The allegations do not constitute offence under section 409 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. The learned judges quashed the impugned proceedings as being one abuse of the process of the court. Shahidul Islam (Mohd.) @ Mufti Shahidul Islam Vs. National Board of Revenue, represented by its Chairman and others 13 MLR (2008) (HC) 441. Penal Code, 1860 Section 409 The Rule was issued calling upon the opposite parties to show cause as to why the proceeding in Special Tribunal Case No. 9 of 1991 (in fact Special Case No.9 of 1991) under section 409 of the Penal Code read with section 5(2) Act II of 1947 pending before Special Judge. Rajshahi Division (wrongly written as Special Tribunal Judge by the High Court Division) should not be quashed. Md. Khalequl Islam vs. The State (M.M. Ruhul Amin J) (Criminal) 4ADC 805 Section 409/109/471/472 Petitioner and others, who are the officers and employees of the Bangladesh Bank. Khulna Branch, in collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advice withdrew Tk. 7.25.400/- on 2.8.1992 from the said Bangladesh Bank Enamul Hoque Mollah vs. The State as represented by the Deputy Commissione (Md. Tafazzul Islam J) (Criminal)4ADC 972 Section 409/109/472 In collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advices. Mirza Saifuddin Hasan vs. The State (Md. Tafazzul Islam J) (Criminal) 4ADC 977 Section 409/420/109 Discharging the Rules and common questions of law being involved in all these petitions, the same are disposed of by this judgment. Abdul Huque vs. The State (MD. Tafazzul Islam J) (Criminal) 4ADC 1004 Section—409 The word “banker” used is section 409 of the Penal Code, whether has been used in the technical sense of the Banking Companies Act. Held: The word “Banker”occurring in section 409 of the Penal Code has not been used in the technical sense of the Banking Companies Act but it signifies any person who discharges any of the functions of the customary business of banking. The word also includes a firm or company that carries on such business. Mustafizur Rahman Vs. The State and others, 13BLD(HCD)287 Ref: 1960 Cr. L.J. 188; 44 DLR(AD) 192; 23DLR(SC)4 1—Cited Section—409 Mere delay in payment entrusted to a person, whether misappropriation? Mere delay in payment of money entrusted to a person, when there was no particular obligaton to pay at a certain date, does not amount to misappropriation. A.H.M. Siddique Vs. The State, 13BLD (HCD)85 Section—409 In section 409 of the Penal Code there is no provision for confiscation of property. Yet the Appellate Division refused to consider the prayer of the petitioner at this stage as this point was not specifically raised before the High Court Division. Bibhuti Bushan Talukder Vs The State, 17BLD(AD) 168 Section—409 Mere retention of money by the accused for some time without actual use for which it was meant or mere delay in disbursement of money due from him, if properly explained, does not constitute an offence under section 409 of the Penal Code. A.K.M. Hafizuddin Vs. The State, 15 BLD(HCD)234 Section—409 The ingredients of section 409 of the Code are misappropriation to commit criminal breach of trust in respect of property over which he had dominion as public servant. The appellant had no criminal intention to commit such criminal breach of trust in respect of the property which was held within his dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding over his financial difficulties and as such the appellant is entitled to acquittal as of right. A.K.M. Mohiuddin Vs The State, 20 BLD(HCD)172 Section—411 Dishonestly retaining or receiving stolen property In order to sustain a conviction under section 411 of the Code the prosecution must prove affirmatively by reliable evidence that the accused had exclusive possession and effective control or domain over the stolen property or he received or retained the same knowing or having reason to believe it to be a stolen property. Md. Afsar Ali Pramanik Vs The State, 20BLD(HCD)356 Section 415 The legislature intended to criminalize only those breaches which are accompanied by fraudulent, dishonest or deceptive inducements, which resulted involuntary and inefficient transfers, under section 415 of Penal Code. Sahabuddin Alam (Md) vs State, 74 DLR 170. Section 415-The mere inability of the petitioner to return the loan amount can not give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts of the complaint and materials on record are taken on their face value, no such dishonest representation or inducement could be found or inferred. Sahabuddin Alam (Md) vs State, 74 DLR 170. Section 420— Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act. State vs Md Iqbal Hossain and others 48 DLR (AD) 100. Sections 420 & 406— From reading of section 48 of the Act we do not find that institution of this case under Penal Code is barred under section 48 of the Act by an explicit provision of this Act. Salahuddin (Md) and others vs State 51 DLR 299 Section—420 Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend money having no intention to repay, whether it will be an offence of cheating punishable under section 420 B.P.C. Intention of a person, whether can only be gathered from his conduct? Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend the money, having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code. Intention of a person can only be gathered from his conduct at the time of the occurrence and the surrounding circumstances. Md. Shafiuddin Khan Vs. The State & another, 13BLD(HCD)362 Ref: 13 CWN, 728; 10 DLR 325, 26 DLR 146; 27 DLR (AD) 175; 7 BLD 164—Cited Section 420-Normal financial transaction berween debtor and creditor does not come within the scope of any offence. MA Sukkur vs Md Zahirul Haque, 23 BLC (AD) 148. Section 420-The conviction of the petitioner under section 420 of the Penal Code for cheating does not debar the man cheated from filing a civil suit for specific performance of contract or for return of the money taken by the petitioner by practising deception. Abdul Awal vs Waliullah 12 DLR 520: PLID 1961 (Duc) 53: PLR 1961 (Dac) 187. Section 420-In order to bring home the charge under section 20 it is necessary for the prosecution to prove beyond all reasonable doubts that the representation made by the accused was known to him to be false and that acting on that false representation the complainant parted with his money. In dealing with an offence under section 420, it is necessary for a court of law to find whether the person making the representation had the knowledge that the statement made by him was false. In a case under section 420, a court is not concerned with a correct interpretation of a statute but with existence or otherwise of a bona fide belief whether there was a reasonable ground for the accused to think that he was entitled to act in the way he did in the particular case. AM Serajul Huq vs State 14 DLR 265. Section 420-Complaint by a person who is not himself cheated is valid in law-It is true that the success of a prosecution launched for cheating somebody to a large extent depends, in view of the ingredients of the offence of cheating, upon the examination of the person cheated. Jagadish Chandra Roy vs Joynarayun Biswas 14 DLR 198. Section 420-Where a complaint of cheating before the Court has been made not by the person defrauded but by another on his behalf, the case must fail. Surendra Nath Saha vs State 12 DLR 178. Section 420-Before a person could be convicted for cheating or for conspiracy to cheat on the basis of a speculative or improbable scheme issued to the public, it must be established that the promoters of the scheme themselves did not believe in the working of the scheme and that they had themselves not faith in it. Zahid Hasan vs State 16 DLR 23. Section 420-Accused was convicted and sentenced under section 420 CPC. On appeal, both the parties filed a joint petition for compromise before the Appellate Judge who directed that the compromise be effectd in part only, Held: If the Appellate Court permitted the case to be compromised, then under section 345, clause (6). CrPC he had no alternative but to acquit the accused and set aside the conviction and sentence. If he was refusing to allow the case to be compromised, then he had no alternative but to hear the appeal on its merits and he had no right to say that the compromise was permitted in part merely by reducing the sentence of imprisonment to the period already served. Sahar Ali va Samed Ali 6 DLR-28 Section 420-Where a complaint under section 420 was preferred by a person not actually cheated. Held: The complainant had no locus standi to make a complaint. Md Hayat Khan vs Ghulam Md 6 DLR (WP) 177. Section 420-Joint trial of one S with other accused who were public servants under section 120B. PPC read with section 5(2) of the Prevention of Corruption Act-Illegal. Sayeed Hai vs State 20 DLR (WP) 20. Section 420-Money realised for work done on contract but done imperfectly and with materials other than those argeed to, by presenting a voucher certified by two union council members which voucher not signed by the accused but someone else in his (accused) name does not make out case of cheating under section 420. Lutfor Rahman vs State 25 DLR (SC) 101. Section 420 Complaint under section 420-Need not necessarily be filed by cheated person alone. Muhammad Ehsan va State 20 DLR (WP) 132. Section 420-To establish the offence of cheating it must be shown that the criminal intent to cheat exists from the very beginning- Its subsequent exhibition is not a test of cheating. Meser Ali vs State 26 DLR 146. Section 420-In order to constitute cheating it must be established that someone is made to part with some property on the promise of another to return or to give something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established to justify conviction for cheating. It is to be mentioned, however, that intention to cheat is to be gathered from surrounding circumstances. A dishonest concealment of facts is a deception within the meaning of section 415 of the Penal Code. Such a deception is an ingredient of cheating. Akamuddin Ahmed vs State 27 DLR (AD) 175 Section 420-An inducement to wrongly deliver, by false representation or by false pretence, need not be always by word of mouth. It can be inferred from all the circumstances attending the obtaining of the property. What is required is a dishonest intention which again can be gathered from the act or series of acts, even distinct and unconnected but committed with the one aim in view, that is, to cheat Kazi Mozaharul Haq va State 33 DLR 262 Section 420-Where any breach of contract is an offence and amounts to cheating. punishable under the Penal Code. Kazi Mozaharul Haq va State 33 DER 262 Section 420-A induces B by false representation to deliver some property to C- Offence of cheating is complete even though A does not gain anything. Kazi Mozaharul Haq va Siate 33 DLR 262 Section 420-Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act. State vs Md Iqbal Hossain and others 48 DLR (AD) 100. Section 420-To constitute an offence under section 420 Penal Code, there must be allegation of deception at the initial stage of the transaction. Habib (Md) and another vs State represented by the Deputy Commissioner 52 DLR 105. Section 420-None of the witnesses has deposed that the appellant induced PW 2 to execute kabala or to deliver the property to him. The prosecution has not led any evidence to prove the ingredient of the offence punishable under section 420 of the Penal Code when the trial Court as well as the High Court Division failed to appreciate this aspect of the matter and wrongly held that the appellant was guilty of the offence under section 420 of the Penal Code. Mohasin Ali (Md) @ Mohsin vs State 5 BLC (AD) 167. Section 420-The alleged transaction between the complainant and the appellant is clearly and admittedly a business transaction when the appellant had already paid a part of the money under the contract to the complainant, then the failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature and hence the complaint case is quashed. Dewan Obaidur Rahman vs State and another 4 BLC (AD) 167. Section 420-Business transaction - between the parties for long time-Money claimed has fallen due in course of long business transaction which cannot be the foundation of a proceeding for cheating and breach of trust in Criminal Court. Liability in course of business transaction is of civil nature. The impugned proceeding is misconceived. Criminal proceeding not maintainable as civil liability cannot constitute any basis of any Criminal Proceedings-It is essentially of civil nature-To hold otherwise would be to ignore the realities of business transactions and to encourage civil claims to be brought into criminal courts under some contrivance for the purpose of repayment of alleged dues. Syed Ali Mir vs. Syed Omar Ali 10 BCR (AD) 287. Sections 420 and 406-The alleged transaction between the parties are purely business transaction. The liability arising out of the loan transaction under a loan agreement is a civil liability, the remedy of which necessarily got to be settled and sorted out in the civil court. Further prolongation of the prosecution would amount to unnecessary harassment to the accused-petitioner, that is, abuse of the process of the court. Sahabuddin Alam (Md) vs State, 74 DLR 170. Sections—420 Dishonouring of the cheque itself cannot be considered as an ingredient of the offence of cheating unless there is evidence to show that after issuing it he has done something more to defraud the payee. Even such a cheque issued with the knowledge that he has not such amount in the Bank account at the moment it will not amount to cheating if he has intention to deposit the money before the cheque is presented for encashment. Mere dishonouring of the cheques itself is not an ingredient of cheating. Mohiuddin Md Abdul Kader Vs The State and another, 20 BLD (HCD) 499 19 BLD (HCD) 46 1—relied Sections—441/447 Criminal trespass It provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. In the instant case the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction. So the ingredients of section 441/447 of the Penal Code have been well-established. Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19BLD (AD) 260 Sections 447 & 379— When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others vs State and another 51 DLR 278. Section—447 Criminal trespass In view of the fact that theft of the case crop by the accused by the cutting and taking away of the same out of the possession of the complainant and damaging some crops in the course of the same transaction necessarily involves their entry into the case land and the accused are punished for the said offences, a separate conviction under section 447 of the Penal Code is wholly unwarranted. Moreover, in the absence of any finding by the trial Court on the intention or the object of the illegal trespass of the accused, conviction of the accused under sections 447 or 448 of the Penal Code is not maintainable in law. Md. Motaleb Sardar and others Vs. The State and another, 19 BLD (HCD) 407 Section 448/326/307/34, 561A Whether the High Court Division have committed an error of law resulting in mis- carriage of justice in not holding that the proceeding so far as the appellant is con- cerned is frivolous, vexatious, malafide and groundless and therefore ought to have been quashed and the proceeding being false, concocted, continuation of such pro- ceeding is abuse of the process of the Court and the Appellant standing on the same footing of co-accused Mr. Mashiuzzaman ought to have been released from the charge leveled against her and the proceeding against her ought to have been quashed. Mrs. Novara Schute alias ors. vs The State (Mainur Reza Chowdhury J) (Criminal) 247 Section 463— To find one guilty of forgery there must be an original document first. In the absence of the original one, it cannot be said that the resolution by the Bar Association dated in question is a forged resolution. SA Alim vs Dr Md Golam Nabi and another 48 DLR 98. Section 463-The proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial, when there is a prima facie case for going for trial. In view of the such facts the grounds taken in revision are not the correct exposition of law. Thus the Rule having no merit fails. Akhtaruzzaman Akhtar Shah vs State 64 DLR 442 Sections 463 & 464— Ante-dating of a document with any of the intentions such as causing damage or injury to a person by way of depriving him of his right already acquired by a kabala constitutes forgery. Amatutnnessa transferred her entire interest to the appellant by the kabala executed and registered by herself of 18-7-75 (Ext. l) and was thereafter left with nothing for subsequent transfer to anybody, but she executed the subsequent kabala (Ext.4) in favour of her brother accused Syeduzzaman conveying the same land by ante-dating the kabala showing that it had been executed earlier than the appellant’s kabala. Execution of the subsequent kabala shows her intention to deprive the appellant of his right already acquired by his kabala which was found to be genuine. “Forgery” means making of a false document with certain intentions, such as to cause damage or injury to a person, to support any claim or title, to commit fraud. Amjad Molla vs Syeduzzaman Molla and others 46 DLR (AD) 17. Section 464— Unless there is an element of fraud or intention to cause damage or injury to the public or any person the document or part thereof cannot be called as forged document. Mere signing of the petitioner in another’s name who did not give authority to sign without any intention to cause damage or injury to the public or any person and actually causing no injury or damage does not come within the definition of forgery. Abul Kashem Bhuiyan vs State 50 DLR 631 Section 465, 467 Suit seeking declaration that the execu- tion and registration of the deed of heba-bil-ewaz Md. Serajul Islam alias Tuku vs. Most. Shahid Khatun (Md. Tafazzul Islam J) (Civil) 6 ADC 942 Section 467— To secure a conviction for forgery in this case it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused. Showkat Hossain Akanda Chowdhury vs State 50 DLR (AD) 128 Sections 468, 471 Accused petitioner by fraudulent means showed said Marium Bibi being alive and created the 'Heba' Deed on 5-1-1977 in his favour and claimed his ownership of the case land. Abdur Rahman Nazim vs Abdul Rahman Nazim (Syed J. R. Mudassir Husain J) (Criminal) 3ADC 249 Section 471— For the offence under section 471 of the Penal Code an accused can be punished as provided in section 465 of the Penal Code up to 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah vs State 50 DLR (AD) 96 Section 471— The High Court Division is palpably wrong in holding that when an accused is convicted and sentenced under section 466 he cannot again be convicted and sentenced under section 471 of the Penal Code. In the present case it has been proved that the recall order was used by Nurun Nahar Begum in getting Khijiruddin released from the Thana. The accused-petitioner was certainly an abettor in so far as section 471 of the Penal Code is concerned. Azizul Hoque (Md) vs State 51 DLR (AD) 216 Section—471 For the offence under section 471 of the Penal Code an accused can be punished, as provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah Vs The State, 17 BLD (AD)170 Section 489C, 395, 397 In the FIR there was no allegation that accused had tried in any way to counter- feit or perform any part of the process of counterfeiting or sell or buy or make or perform any part of the process of making or intended to use the counterfeit currency-notes, and the mere possession of counterfeit currency-notes not being made punishable under Section 25A of the Special Powers Act. In law in view of the settled principle of law, that summary disposal of a case, be that in revisional jurisdiction or in other jurisdiction, without hearing the other side is not legally sustainable and appre ciable. The State vs. Nur Husain alias Hiron (Md. Ruhul Amin J) (Criminal) 4ADC 85 Section—493 A mere promise of marriage made by the accused to a woman or to her guardian intending never to fulfil his promise does not warrant a conclusion that a false belief was caused in her mind that she was the lawfully married wife of the accused. Makhan alias Putu Vs. The State, 14 BLD (HCD)122 Ref: 34 DLR 366—Cited Section 493— The prosecution is required to prove that some form of marriage or an apology for conducting a marriage took place and as a result of which the woman had a belief in her mind that she was the lawfully married wife of the accused. In the facts and circumstances of the case and the evidence on record, it is difficult to comprehend how such a grown up woman with sufficient worldly knowledge would bonafide believe that she was the legally married wife of accused Hanif on his mere promise to marry her in the future and on such fond belief she surrendered herself to the carnal desire of the accused petitioner, which eventually led to her conception. Hanif Sheikh (Md) vs Asia Begum 51 DLR 129 Section 493- A mere promise of marriage made by the accused to a woman intending never to fulfil his promise does not lead to a conclusion that a false belief was caused to her mind that she was the lawfully married wife of the accused-Penal Code, S. 493 Makhan alias Putu Vs The State, 14BLD(HCD)122 Ref: 34 DLR 366-Cited Section 494— Marrying again during lifetime of wife—framing of charge under this section was wrong because the Muslim Family Laws Ordinance or any other law does not render second marriage, during the subsistence of the earlier marriage, void. A person can be charged under section 494 Penal Code only when such marriage is void. In is apparent that the Magistrate committed error of law in framing charge under section 494 of the Penal Code instead of under section 6(5) of the Muslim Family Laws Ordinance, 1961. No doubt the accused petitioner pleaded guilty and the conviction is based upon that plea only. But the guilty pleading of an accused person cannot cure the inherent defect in the charge or in the conviction. Masud Ahmed vs Khushnehara Begum and another 46 DLR 664. Section 498-Since sanctity of a matrimonial tie is to be preserved, persons dealing or behaving in a manner with a married woman which tends to severe such a tie run a great risk which, to a great extent is akin to dealing with a minor or insane person. Enticing a woman to desert her husband's refuge, or taking her away by persuation or otherwise by a man, knowing the woman to have been another's wife is patently an infringement of matrimonial right of that husband, an manifestly a crime punishable under section 498 of the Penal Code, no matter whether the woman was a consenting party or not. Sabita Rani Mondal vs Amal Krishna Mistry, 68 DLR 247 Section—499 Eighth Exception Complaint made by the petitioners in good faith to the Hon’ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by 8th exception of section 499 of the Penal Code. Md. Abdun Noor and others Vs The State and another, 18 BLD (HCD) 624 Section—499 Ninth Exception—Defamation Bringing anything which is unjust or improper to the notice of the public at large is certainly for the public good. In the instant case, since the alleged offending imputation was made at a press conference by a person who has not been made an accused in the case and the matter was earlier published in other newspapers and the present publication was made in good faith, the offending publication per see satisfies the requirement of Ninth Exception to section 499 of the Penal Code and as such further continuation of the impugned proceeding amounts tà an abuse of the process of the Court and the same is quashed. Syed Mohammad Afzal Hossain Vs. S.M. Selim Idris, 15 BLD (HCD) 362 Ref. 19 DLR (SC) 198—Cited Section 499, 8th Exception— Complaint made by the petitioners in good faith to the Hon’ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by exception. Abdur Noor and others vs State and another 50 DLR 456 Section—499/500 Imputations, if made by a lawyer iii the discharge of his or her professional duty on the character of any person in good faith, whether will constitute any offence of defamation—A lawyer while acting under the instructions of his or her client, whether is entitled to special protection? Imputation, if any, made by a lawyer, in the discharge of his or her professional duty, on the character of any person, in good faith and for protection of the interest of the person making it or of any other person or for the public good will not constitute any offence of defamation. A lawyer, while acting under the instructions of his or her client and proceeding professionally, has a qualified privilege; while acting as such, the lawyer does not, if not otherwise implicated, come within the ambit of defamation unless and until there is an express malice on his or her part; and mere knowledge in such cases cannot be equated with express malice or malice in fact. The privilege enjoyed by the lawyer is only a qualified privilege and he will not come within the bounds of the offence of defamation unless and until there is an “express malice” or malice in fact on his or her part. An Advocate is entitled to special protection, when is called in question in respect of defamatory statements made by him or her in course of his or her duties as an Advocate. The Court ought to presume that he or she acted in good faith upon instructions of the clients and ought to require the party to prove the express malice. Mrs. Sigma Huda @ Sigma Huda Vs.Ishfaque Samad. 13BLD(HCD)152. Ref: (1976) 78 Born. L.R.234; A.I.R.1927 Cal. 823; A.I.R. 1932 Bom. 49O—Cited. Section 500— Had the complainant sent a rejoinder to the petitioner and the same was not published then it could be said that the petitioner did not act in good faith and for public good. Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176. Section 500— Further prolongation of the case against the accused, for publishing the alleged report which has not even been claimed to be entirely baseless in the petition of complaint will be an abuse of the process of the court. Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176. Section—500 To constitute defamation, the offending words spoken must contain imputation concerning a person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such a person. Explanation 4 of section 499 of Penal Code provides that no imputation harms a person’s reputation unless that imputation lowers the moral or intellectual character of that person in the estimation of others. A.K.M. Enamul Haque Vs. Md. Mizanur Rahman and others, 14 BLD (HCD) 201

Section—201

To sustain a charge U/s 201 of the Penal Code it is essential to prove that an offence has been committed and that the accused knew or had reason to believe that an offence has been committed and with the requisite knowledge and intent to screen the offenders from legal punishment causes the evidence thereof to disappear or gives false information in respect of such offence, knowing or having reason to believe the same to be false.  Khandkar Md. Moniruzzaman Vs.The State, 14BLD(HCD)308  Ref: 35 DLR (AD) 127; 18 DLR(SC)289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR238; 45DLR386; 30DLR58; 1984 B.C.R. 231; P.L.D. 1978 Lahore 1285—Cited

Section 506 As regards the offence under section 506(2) of the IPC is concerned, no offence is said to have been established against the applicant in the present case since the contents of the FIR reveal that the alleged criminal intimidation has not caused any alarm to the complainant. It is settled proposition of law that mere threats given by the accused not with an intention to cause alarm to the complainant would not constitute an offence of criminal intimidation. The complainant has not stated that the criminal intimidation caused him such a degree of alarm and he R/SCR.A/7933/2020 JUDGMENT DATED: 29/06/2022 actually felt threatened that the applicant will actually cause injury to him. The delay in lodging the FIR would itself be fatal for satisfying the ingredients of section 503 of IPC, if the same is not satisfactorily explained. In the present case, the complainant has stated that since he was busy with agricultural activities, the FIR has been lodged belatedly. Such an explanation fortifies that no alarm was caused to the complainant and he actually did not feel threatened. It appears that the impugned F.I.R. has been lodged with oblique motive to wreck vengeance against the applicant due to their rivalry, hence the same is required to be quashed and set aside." Nitinkumar Harshadbhai Patel vs State Of Gujarat on 29 June, 2022 https://indiankanoon.org/doc/197817528/