Penal Code, 1860

Penal Code

[XLV of 1860]

Sections 29, 361-365—

A careful reading of sections 29, 463 and 464 of the Penal
Code together would clearly show that a false document must have been actually
made and that mere taking of a signature on a blank paper without writing
anything on that paper does not make it a document. Since the complainant
petitioner did not disclose the nature of the document allegedly created the
allegations made do not constitute the offence under section 465 of the Penal
Code and as such the impugned proceeding is liable to be quashed.

Syed Khalilulla Salik alias Juned vs Haji Md Rahmat Ullah vs State 49
DLR 16

Section 34—

The essence of joint liability is to be found in the
existence of a common intention animating the accused in the doing of a
criminal act in furtherance of such intention.

Before application of section 34 of the Penal Code to a
case, it must be shown that (1) a criminal act was done by several persons, (2)
all of them intended the commission of the criminal act and (3) the criminal
act was done in furtherance of the common intention. In the instant case it is
not clear that except accused appellant Abul Kalam Azad, the other accused had
the intention of causing such bodily injury as was likely to cause the death of
Abdul Wadud and even the participation of the other accused in causing death of
the deceased is not free from doubt.

Abdul Kalam Azad vs State 47 DLR 317.

Section 34—

This section does not create any distinct offence. It is
intended to meet a case where the members of a party acted in furtherance of
the common intention of all but it was difficult to prove exactly the part
played by each of them.

In means that if two or more persons intentionally do a
thing jointly, it is just the same as if each of them had done it individually,
common intention within the meaning of this section pre-supposes a prior
concert. There must be a prior meeting of the minds leading to a pre-arranged
plan to commit an offence. The common intention to commit the offence invites
the application of section 34 of the Penal Code. In offences involving physical
violence, the presence of the accused at the scene of the occurrence renders
him liable on the principle of joint liability but where the offence consists
of diverse acts and it may be committed at different times, the presence of the
accused at the scene of the occurrence is not necessary.

State vs Tajul Islam 48 DLR 305.

Section 34—

Unless there is meeting of minds between the accused as to
the commission of crime of common intention, the application of section 34 of
the Penal Code is improper.

Abdul Khaleque and others vs State 48 DLR 446.

Section 34, 109 &
149—

For application of section 34 some overt act by each of the
accused is necessary in the commission of the crime by two or more persons but
in the case of application of section 149, if one is found to be a member of
the unlawful assembly for the commission of the crime, whether he takes active
part in it or not, he comes within its mischief, and so far as section 109 is
concerned, it is simply for abetment of the offence committed.

Now, in the instant case, according to the prosecution, all
the accused planned to commit the murder of the victim and towards that end
they started acting and then all together in a joint action with common
intention caused the murder of the victim. So, in such circumstances, it is not
understood why section 34 will not be attracted in this case, when allegation
is to the effect that each one of the accused persons took part in the
commission of the alleged crime of murder of the victim Kalam. The question is
whether the prosecution has been able to prove the allegation by evidence is a
different one. We, therefore find no illegality in framing the charge against
the accused under sections 302/34 of the Penal Code apart from other sections
of law.

Abdul Khayer and 3 others vs State 46 DLR 212.

Sections 34 and 149—

Section 34 of the Penal Code involves a direct overt act on
the part of the accused sharing “a common intention” with others for
the commission of an offence while section 149 is essentially a vicarious
liability for being a member of an unlawful assembly with the “common
object” of committing the offence. These two offences are of different
nature.

Abu Talukder vs State 51 DLR 188

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

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 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.

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 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 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.

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 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

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.

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—

State vs Abdul Momin Sardar 50 DLR 588

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 otherrs vs State 48 DLR 446.

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—

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

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 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 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.

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 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.

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.

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 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.

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

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 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 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

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 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

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.

Motaleb Sardar (Md) and others vs State and another 51 DLR 278.

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.

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 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

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 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 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 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 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.

Penal Code, 1860

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.

PENAL CODE, 1860

PENAL
CODE, 1860

(XLV
OF 1860)

Section—1

It lays down
that the Penal Code extends only to offences committed in Bangladesh and not to
offences committed outside Bangladesh.

Abdul Haque Vs. The
State, 14BLD(HCD)204

Section—21, Clause 12

Principal of a private
College is not a public servant

Clause 12 of
section 21 of the Penal Code provides that every person in the service or pay
of the Government or remunerated by the Government by fees or commission for
the performance of public duty is a public servant.

Public duty
is one which is created and conferred by law by which an individual is vested
with some portion of the sovereign function of the Government to be exercised
by him for the performance of the duty for the term and tenure prescribed by
law. There is no such law in the instant case and as such the petitioner cannot
be said to perform public duty and called a public servant.

Md Matiur Rahman Vs The
State, 19BLD(HCD)607

Ref: 30DLR(SC)127;
PLD1964 Dhaka 330; A1R1957(SC)13 and A1R1918 Lahore 1 52—distinguishable

Section—34

Common Intention

This
section-does not create any distinct offence. It is intended to meet a case
where the members of a party acted in furtherance of the common intention of
all but it was difficult to prove exactly the part played by each of them. It
means that if two or more persons intentionally do a thing jointly, it is just
the same as if each of them had done it individually ‘Common intention’ within
the meaning of this section pre-supposes a prior concert. There must be a prior
meeting of the minds leading to a pre-arranged plan to commit an offence. The
common intention to commit the offence invites the application of section 34 of
the Penal Code. In offences involving physical violence, the presence of the
accused at the scene of the occurrence renders him liable on the principle of
joint liability but where the offence consists of diverse acts and it may be
committed at different times, the presence of the accused at the scene of the
occurrence is not necessary.

The State Vs. Tajul Islam
and 8 others, 15BLD(HCD)53

Ref: 44DLR
83; A.I.R.l957(SC)381; 16 DLR(SC) 94; 16 DLR (Dhaka) 189; 29DLR (SC)271; A.I.R.
1978 (SC) 1248; A.I. R. 1939 (Cal) 65; A.I.R. 1929 (Bombay) 327; PLD 1957 (West
Pakistan) Lahore, 956; A.LR. 1946 (Sind) 43; 12DLR (SC) 217; 27 DLR (AD) 29; 44
DLR (AD) 10; A.I.R. 1952 (SC) 474; A.1.R. 1976 (SC) 2027—Cited

Section—34

Under
section 34 of the Penal Code the essence of joint liability is to be found in
the existence of a common intention animating the accused in the doing of a
criminal act in furtherance of such intention. Before application of this
section to a case, it must be shown: (a) a criminal act was done by several
persons, (b) all the accused intended the commission of the offence and (c) the
criminal act was done in furtherance of the common intention of all.

Abul Kalam Azad Vs. The
State, 14BLD (HCD)401

Sections—34 and 149

Sections 34
and 149 of the Penal Code are two distinct and separate offences with different
ingredients. Section 34 of the Penal Code involves a direct overt act on the
part of the accused sharing a ‘common intention’ with others for the commission
of an offence while section 149 of the Penal Code is essentially a vicarious
liability for being a member of an unlawful assembly with the ‘common object’
of committing the offences. These two offences are of different nature.

Abu Talukder Vs The
State, 19BLD (HCD)225

Sections—34 and 149

Common
intention is an intention to commit the crime actually committed and each accused
person can be convicted if he shared the common intention. The common intention
contemplated by this section is anterior to the commission of the crime and it
does not refer to the time when the offence is actually committed.

A person
cannot be found guilty under section 148 of the Penal Code unless he carried
with him a dangerous weapon. A general statement that the accused persons were
armed with dangerous weapons like dhal, katra, lathi and sorki is not
sufficient to warrant a conviction under this section.

Nurul
Haque Matbar and others Vs. The State, 14BLD(HCD)178

Sections—34 and 149

Section 34
applies in a case where a criminal act is done by two or more persons in
furtherance of the common intention of all while section 149 applies in the
case of a member of an unlawful assembly when a criminal act is committed by
any member of the unlawful assembly in prosecution of the common object of that
assembly.

Ataur Rahman and others
Vs. The State, 14BLD(HCD)391

Ref: 37 DLR 157—Cited

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

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—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

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

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., 19BLD(HCD)303

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—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, 20BLD(HCD)372

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—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, 20BLD(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 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

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.

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

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

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

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

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—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

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

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—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

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

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

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 16BLD (HCD)398

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—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

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

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, 20BLD(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.

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—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

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

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,
19BLD(HCD)461

Ref: 46 DLR (AD) 180; 30
DLR 327; 27 DLR (AD) 175; 1954 Crl.L.J. (SC) 1806; 10 BLD (AD) 168:
42DLR(AD)240—Cited

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

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, 14BLD(HCD)167

Ref: 42 DLR (AD) 31; 27
DLR (AD)175; 36 DLR (AD) 14—Cited

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

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, 20BLD(HCD)499

19BLD(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

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, 19BLD(HCD)407

Section—471

For the
offence under section 471 of the Penal Code an accused can be punished, as
provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment
or with fine or with both. The imposition of 4 years rigorous imprisonment
under section 471 of the Penal Code is not sustainable in law.

Abul Hossain Mollah alias
Abu Mollah Vs The State, 17BLD(AD)170

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, 14BLD(HCD)122

Ref: 34 DLR 366—Cited

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, 18BLD(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, 15BLD(HCD)362

Ref. 19DLR (SC)
198—Cited

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, 14BLD(HCD) 201

Section—599/500

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 can not 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.

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