Criminal Trial

Non-seizure of blood-stained clothes, pillow, quilt and earth renders the prosecution story implicating the appellant doubtful. Siddik Ali vs State 41 DLR 26.

—In the absence of examination of the blood stained articles by the chemical examiner, the prosecution has utterly failed to connect the blood in the articles with the human blood to connect it with the murder of the victim. Siddik Ali vs State 41 DLR 26.

—The possibility of the victim’s death by some of his enemies elsewhere as suggested by the defence cannot be ruled out. Siddik Ali vs State 41 DLR 26.

—Joinder of scheduled and non-scheduled offences—In view of the trend of the decisions of this court as mentioned above we are of the view that the joinder of scheduled and non-scheduled offences in present case vitiated the entire proceedings. The learned Tribunal committed illegality in taking cognizance of the case and framing the charge and convicting and sentencing the appellant and it requires interference. MM Rafiqul Hyder vs State 41 DLR 274.

—Malafide—Coram Non Judice—Detenu leased by the High Court by an order dated 27-101988 but the detenu was served with an other order on detention on the self-same ground which has been passed with a malafide motive. The order of detention is not sustainable in law. Nabila Chowdhury vs Bangladesh 41 DLR 345.

—Extra-judicial confession—If at all made-appears to be wholly untrue—No reliable evidence of corroboration of the alleged extra- judicial confession and it is not at safe to rely and act upon such extra-judicial confession. The alleged extra-judicial confession if at all made by the said accused also appears to be wholly untrue. So, in the whole analysis of the facts and circumstances of the case and the evidence on record and the alleged extra-judicial confession of the condemned-prisoner, we find that there is no reliable evidence of corroboration of the so-called alleged extra-judicial confession and it is not at all safe to rely and act upon such extra-judicial confession and convict the accused on that basis. Hence the conviction of the condemned-prisoner Badsha Mollah on the basis of alleged extra-judicial confession cannot be sustained in law. State vs Badsha Mollah 41 DLR 11.

—Mere absconding cannot always be a circumstance to lead to an inference of guilt of the accused.
Mere abscondance cannot always be a circumstance which should lead to an inference of guilt of the accused. Sometimes out of fear and self-respect and to avoid unnecessary harassment even an innocent person remains absconding for some time. State vs Badsha Mollah 41 DLR 11.

—Abscondance was not with any guilty mind. Existence of enmity is not disputed. Accused has been falsely implicated in this case out of grudge and enmity.
In this case the condemned-prisoner Badsha remained absent or absconding for some time but subsequently he surrendered himself in court before the commencement of the trial. It appears this abscondance was not with any guilty mind. So, this circumstance cannot be treated as an ncrminating one. State vs Badsha Mollah 41 DLR 11.

—“Working days” to be counted in determining the time of disposal a criminal case— “Working days” mean the days on which a judge works as such. So, the days when the learned Sessions Judge was on leave and outside the station should not be regarded as “Working days” of the learned Sessions fudge. Akbar Ali vs State 40 DLR 29.

—No finding on a charge of capital offence can be safely based on the statements of an untruthful witness, even though corroborated by other witnesses. Moniruddin Sana vs State 40 DLR 402.

—Principle of identification of an accused by witness in dock when there was a previous TI parade—Circumstances when a witness cannot possibly identify the accused in dock stated. Ratio decidendi reported in AIR 1925 (All) 223. It is well-settled that the evidence hat a witness gives in the witness box is the substantive evidence and it is always desirable hat the witness should be able to identify the accused persons in dock when there was a previous TI Parade, but owing to lapse of time and other compelling reasons it may not be possible for the witness to identify the accused persons in dock. Failure of witnesses to identify accused persons who are strangers to the witnesses— Identification if made without naming them Court’s duty to shift evidence in that circumstance—Any statement, express or implied, made by a witness identifying the accuseds but without naming them, if qualifies as substantive evidence —Test of Ratan Kha vs State 40 DLR 186.

—If a statement made in cross-examination contradicts the statement made in examination— in-chief, the entire evidence cannot be left out of consideration. Nurul Islam vs State 40 DLR 122.

—Relying on the reason ings given in the case reported in 29 DLR (AD) 221 the established principle of law is that if part of the evidence of certain witnesses is disbelieved, the entire evidence is not liable to be discarded. Nurul Islam vs State 40 DLR 122.

—A newspaper is admissible in evidence without formal proof yet the paper ipso facto is not a proof of its contents. The learned Judge was absolutely wrong in taking into consideration, Ext. X, which is the Daily Sangbad, which published the story of the commission of murder by the accused persons. Nurul Islam vs State 40 DLR 122.

—There is no rule of law that once a witness has been discredited on one point, no credit is to be given to another. If a natural witness is declared hostile, his evidence may be accepted if corroborated. The evidence of boatman PW 2 cannot be discarded. Md Ali Haider vs State 40 DLR 97.

—Appeal is a creature of Statute—An appeal preferred by a convicted person can be withdrawn and dismissed for non-prosecution. Sayed Nurul Islam vs State 40 DLR 472.

—“Trial”—Whether it includes judgment— Trial as appearing in various sections of the CrPC had not been specifically defined but considering the scheme of the law, it is found to be a ‘drama’ played in three successive acts i.e. investigation, inquiry and trial. Judgment is a separate scene where the judge is the only player writing down his judgment on the basis of the last scene of the drama already played. Thus, trial does not include judgment. HM Ershad vs State 44 DLR 116.

—Trial of child along with adult is forbidden by law—Trial vitiated as being hit by want of jurisdiction. Md Nasir Ahmed vs State 42 DLR 89.

—In a criminal trial the prosecution is obliged to prove by evidence that the crime charged has been committed before seeking to prove that the accused on trial committed the crime. Akhtar Hossain vs State 44 DLR 83.

—Trial of cross-cases—The usual practice of trial of cross-cases is that both should be tried by the same judge simultaneously or one after another and judgments therein should be delivered after concluding the hearing of both. Siddique Munshi vs State 44 DLR (AD) 169.

—Joint Trial—Joint trial of appellant Sunil a child, along with the appellants being adults was illegal. Kadu vs State 43 DLR 163.

—Motive—If the prosecution assigns a particular motive in proof of its case, then the motive has to be established by the prosecution, failing which the prosecution must suffer on that account, not the defence. Khelu Mia vs State 43 DLR 573.

—The prosecution is not bound to prove motive of the accused for committing the crime, for motive is not an ingredient of the offence— The accused may be held guilty even without proof of his motive if the evidence connecting the accused with the crime is unimpeachable in character. Shah Alam vs State 42 DLR (AD) 31.

Double Jeopardy—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40.

Alibi—Burden of proof—Burden of proving alibi in a wife-killing—It is true that the burden of proving a plea of alibi or any other plea specifically set up by an accused-husband for absolving him of criminal liability lies on him. But this burden is somewhat lighter than that of the prosecution. The accused could be considered to have discharged his burden if he succeeds in creating a reasonable belief in the existence of circumstances that would absolve him of criminal liability, but the prosecution is to discharge its burden by establishing the guilt of the accused. An accused’s burden is lighter, because the court is to consider his plea only after, and not before, the prosecution leads evidence for sustaining a conviction. When the prosecution failed to prove that the husband was in his house where his wife was murdered, he cannot be saddled with any onus to prove his innocence. State vs Mofazzal Hossain Pramanik 43 DLR (AD) 64A.

Alibi—Magistrate cannot discharge accused persons on the plea of alibi that they were at different places at the time of commission of offences alleged by the prosecution—Magistrate’s “finding” in this regard is based on no evidence. Mere submission of some papers supporting alibi is either sufficient nor admissible as the stage of adducing defence evidence was not yet come. Magistrate’s order of discharge was no.t sustainable as it was based on gross misconception of law. Nannu Gazi vs Awlad Hossain 43 DLR (AD) 63.

Last Seen—This is a case in which a minor boy, the victim of murder, was called away by and seen in the company of the two young accused for the last time before disappearance and then some time thereafter the body ofthe victim was found out. The fact of calling away of victim Khairul by accused Khasru was satisfactorily established as the first circumstance in support of the prosecution and witnesses have also satisfactorily proved that the victim travelled with the two accused from their village Noapara to a distant place called Takerhat by bus and got down there at 4-00/4-30 PM on 4-1-79. This is the second circumstance proved against the accused. From this point onward upto the time of recovery of the body of Khairul at about 3-00/3-30 PM on the following day the accused were alleged to have been seen along with the deceased, the third circumstance in the absence of ocular evidence of murder, by PWs 11 and 12. The High Court Division rejected their evidence due to apparent contradiction between their evidence and the statement made by them before the police and also for the reason that their identification of the accused in the TI Parade had lost all significance in view of the fact that they had chance to sec the accused. There has been no violation of any norm or procedure in assessing the evidence of the said two witnesses for which the finding of fact made by the High Court Division could be disturbed. The position, therefore, comes to this that the third circumstance, that of seeing the three boys together near the bank of the river where the victim’s body was found was not satisfactorily established. The circumstances of the case can never be said to be conclusive as to the guilt of accused Khasru and his brother Nowab. The High Court Division has correctly applied the rule as to circumstantial evidence in the facts of the present case. State vs Khasru @ Syed Mostafa Hossain 43 DLR (AD) 182.

—Defence plea, when not acceptable—Plea of inadvertence, liable to be rejected if not taken during the trial but argued subsequently. Accused Fishery Officer did not take the plea of inadvertence during his trial on the charge of manipulation of lease deed which was argued on his behalf subsequently—no suggestion was made to any of the witnesses that on the date of executing the lease deed on government’s behalf, he was very busy as many other lease deeds were executed by him and by inadvertence, he executed the lease deed in question by putting his signature thereon

—During examination under the section 342 CrPC all the incriminating facts in evidence were put to him in details by the Court, but he did not take the plea and just pleaded not guilty—plea of inadvertence due to pressure of work rightly rejected. Atiqur Rahman vs State 42 DLR (AD) 176.

—In case of direct evidence the question of motive is not of much importance. Shah Alam vs State 42 DLR (AD) 31.

—There cannot be any bar for a person to witness an occurrence and give evidence merely because the accused has brought the case against that person—His evidence is to be tested, scrutinized and assessed along with all other evidence and circumstances. Shah Alam vs State 42 DLR (AD) 31.

—Inference from the facts of the case—The two expressions “common intention” and “similar intention” are not coterminous or co-extensive in range—Each case is to be considered in its own background. Chand Mia vs State 42 DLR (AD) 3.

—Circumstantial evidence and extra-judicial confession not corroborated by any reliable evidence. State vs Badsha Mollah 41 DLR 11.

—Circumstantial evidence—Chains of circumstantial evidence missing—Facts proved must be incompatible with the innocence of the accused. In respect of charge of abduction with murder, even if the chains of circumstances are broken and a strong and dominant inference takes the place of evidence, such substitute by inference may often fill up the gap provided the inference stands on a very high degree excluding all other hypothesis save and except the hypothesis of the guilt of the accused: Soleman vs State 42 DLR 118.

—The process of trial of cross cases is that both should be tried by the same judge simultaneously or one after another and judgment therein should be delivered after concluding the hearing of both the cases and in such trial, record of cases should be kept distinct and separate and evidence of one case cannot be used in another case and each case must be decided on its own evidence and record. State vs Matiur Rahman 60 DLR (AD) 4.

Place of occurrence—The High Court Division confused the pathway and the vacant land as two distinct and different places whereas the pathway has been shown in the sketch map adjacent to the place of occurrence and the place of occurrence is on the pathway and the vacant land by the side of the pathway. Therefore, there was no shifting of the place of occurrence as misunderstood by the High Court Division only because pathway has been depicted in the sketch map as ‘K’ and the place of occurrence as ‘A’. State vs Anowar Hossain Pinto 61 DLR (AD) 108.

—Suspicion—Cannot be basis for conviction—Probability however strong, and suspicion however grave, can never take place of proof as because in a criminal trial presumption of innocence is a principle of cardinal importance and so guilt of the accused must be proved beyond reasonable doubt by legal, reliable and unimpeachable evidence. Suspicion and probability, however strong and grave, can never take place of proof. Niranjan Malaker vs State 62 DLR 387.

—Principle of criminal jurisprudence that an accused should be dealt in accordance with law and before awarding any punishment a judge should have considered the legal evidence and proposition of law and he will not act as a social activist, rather he should have guided by law giving up emotion. Nazmul Islam vs State 63 DLR 460.