Penal
Code, 1860
Section 21 – Member of Parliament is not a public servant
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 34 – Joint liability
Unless there is participation of the
accused in the commission of the offence in furtherance of their common
intention, section 34 is not attracted. Mere presence in or near the scene does
not make the person liable under section 34 of the Penal Code.
Aminul Islam and others Vs. The State 12 MLR (2007) (HC) 21.
Penal Code, 1860
Section 109 – offence of abetment
Prevention of Corruption Act, 1947
Section
5(2) – Punishment for criminal misconduct
Criminal Law (Amendment) Act, 1958
Section 9 – Provides for confiscation
of property to the extent connected with the offence
When the charges under section 5(2) of
the Prevention of Corruption Act, 1947 read with section 109 of the Penal Code Penal Code, 1860 are
established section 9 of the Criminal Law (Amendment) Act, 1958 imposes a duty
upon the trial judge whether he imposes a sentence of imprisonment or not, he
shall impose a sentence of fine and pass an order confiscating the property of
the accused connected with the offence. The apex court held that the
confiscated property cannot be restored to the offender.
M.A. Sattar and others Vs. The State
14 MLR (2009) (AD) 168.
Penal Code, 1860
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.
Penal Code, 1860
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.
Penal Code, 1860
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 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.
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.
Penal 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.
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.
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.
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.
Section 342- Examination of accused
Purpose of the examination of an accused under section 342 Cr. P.C
is to give him an opportunity to explain his position in relation to the
evidence brought against him on record. This is mandatory provision of law.
Improper examination causes prejuduce to the accused.
Touhid and others Vs. The State 12 MLR (2007) (HC) 158.
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.
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.
Penal Code, 1860
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
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.
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.
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.
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 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 can not 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.
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.
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.
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.
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.
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.
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.