Sections-3 read with Section 30

Confession is nothing but admission of guilt by accused. Confession of an accused is not an evidence as defined in section 3 of The Evidence Act.  Under Section 30 confession of a co-accused can be taken into consideration but cannot be treated as substantive evidence and can be pressed into service in support of other evidences.

The State Vs. Md. Ershad Ali Sikder & Ors. 12 BLT (HCD)-125

Section- 3 Read with Section- 30

In the present case there being no substantive evidence either direct or circumstantial except as to some evidence about motive confession of co-accused alone cannot be considered against the appellant lawfully.

The evidence of P. Ws. 4 and 7 only shows mat there was rivalry with deceased Shahid in respect of calling customers for the two adjoining hotels and from this evidence alone it is very difficult to implicate the appellant with the involvement of murder of deceased Shahid or with the abatement of the said offence. This case lacks in sufficient legal evidence and in that view of the matter the benefit should go to the accused.

Ustar Ali Vs. The State 5 BLT (AD)-265

 

Sections-3 and 30

Criminal Trial

Confessing accused Abdus Satter implicated himself in the alleged dacoity along with the accused appellant and others wherein he stated that the appellant was the leader of dacoits and his instance the dacoity was committed, but there is no corroborative 127

evidence in support of the said confessional statement. So, it cannot be considered as evidence under section 30 of the Evidence Act. So relying on the said evidence conviction cannot be sustained.

Mojibar Vs. The State 7 BLT (HCD)-224

 

Section- 3 Read with Section-38

In the instant case, except appellant A. Rahim the other 3 appellants have not made any confessional statement and there is also no reliable evidence oral or documentary or circumstantial involving them in the commission of the alleged crime of murder of the victim or concealment of the dead body of the deceased and it appears that they have been convicted and sentenced only of the basis of the confessional statement of the co-accused A. Rahim which is illegal and therefore liable to be set aside.

Abul Khayer & Ors. Vs. The State 4 BLT (HCD)-89

 

Section-8 & 9

Murder Charge – Abscondence of accused – corroborative evidence of his guilt.

In the instant case there is in fact one eye witness P. W. 3 whom we have found to be fully trust worthy and reliable and she has been corroborated by their witnesses and also by the medical report and the deposition of the doctor along with this we may take into consideration the circumstances at the case as have been disclosed in this case by the fleeing away of the accused Ranajit just after the occurrence and thereafter at the time of the trial his decamping from the police custody and then his continuous absconsion till today- Thus the conduct of accused Ranajit must be taken into consideration under section 8& 9 of the Evidence Act as an incriminating substance against him- We are of the view that the prosecution has been able to establish the charge against accused Ranajit beyond all reasonable doubt and the learned Additional Sessions Judge has rightly convicted him under section 302 of the Penal Code- relied on 33 DLR-274.

The State Vs. Ranjit Kumar Mallik 4 BLT (HCD)-47

 

Section -11

The plea of alibi taken by the accused needs to be considered only, when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi.

Kazi Mahbubuddin Ahmed Vs. The State 13 BLT (HCD)-524

 

Section-27

The recovery of other wearing apparels and toiletries of the deceased at the showing of the condemned- prisoner while in police custody leads to the irresistible conclusion that the condemned- prisoner had the most intimate relationship with the deceased and that wearing apparels and toiletries of the deceased must have been either in the possession of the condemned prisoner or within his knowledge as to where those articles were. There recoveries are admissible in evidence under Section 27 of the Evidence Act.

Khalil Miah Vs. The State 7 BLT (AD)-245

 

Section – 30

Law is well settled by pronouncements of Apex Court of Sub-Continent that confession of a co-accused cannot be the sole basis of awarding conviction upon a non-confessing accused as postulated in section 3 of The Evidence Act. Confession of a confessing accused can be a solid pill for awarding conviction upon a non-confessing accused on finding him guilty of offence if the confession of a co-accused implicating non-confessing accused stand corroborated by other corroborative evidences.

Abdus Salam @ Biplob Vs The State 13 BLT (HCD)-567

 

Section-32

A Dying declaration enjoins almost J sacrosanct status as a piece of evidence as it comes from the month of a person who is about to die and at that stage he is not likely to make a false statement. If the Dying declaration is acceptable as true conviction, can be based upon the Dying declaration alone in the absence of corroboratives evidence on record.

The State Vs Abdul Hatem 12 BLT (HCD)-36

 

Section-32(1)

Whether declaration of deceased made to PWs-2 and 3 who are private persons can be enaracterised as oral dying declaration.

Where a person in a state of apprehension of death on account of his physical condition, injuries etc. tells something then, in the event of that person meeting his death, his version, as reproduced by witnesses or listeners or reduced in writing falls within the definition of dying declaration and is admissible in evidence under Section 32(1) of The Evidence Act.

The State Vs. Md. Saidul Huq 11 BLT (HCD)-155

 

Section-32(l)

Dying declaration

Its credibility —The worth that it commands — After receipt of the burns on 03.01.1998 the deceased was first admitted in the Thana Health Complex at Saril on 25.01.1998 PW-3 Dr. Azizur Rahman testified that she was admitted with old infected severe burn injuries. Same date, he referred her to the emergency department of the Brahmanbaria Sadar Hospital since her condition was very critical. What happened thereafter is not known. No evidence was led. We further find that on 03.02.1998 she died in her parent's house at Dattapara. Previous day PW-2 Shahadat Hossain Magistrate recorded her statement in that house. At the time, no doctor was present there. Nor we find any medical certificate or evidence that at the time she was both mentally and physically fit to make such statement, pw-2 Shahadat Hossain testified that the injured was dying. Much painstaking in talking. He also stated that he transcribed in his own Language of the Victim, he did not record and statement that he was satisfied that she was capable both physically and mentally to make such statement.

Why the prosecution found time to record such statement of the deceased only on the previous day of her death. Why the Magistrate was brought from the District. When Magistrate was available in the headquarter of the police station at Sarail. No explanation whatsoever is furnished by the prosecution. Only thumb impression of the victim would not lend any weight when such thumb could be obtained even after death.

In the circumstances and on the medical evidence and the testimonies of PWs-7 to 11, we cannot accept the dying declaration, exhibit-2 as true and voluntary and free from all doubts and suspicions. Moreover, die time is not corroborated by any other evidence, and not even by the informant.

When the time of occurrence is proved to be that of 'Shari', then the defence case that the deceased caught fire in her clothes while she was cooking, which caused the burns becomes more acceptable. So, the burns suffered by the deceased were caused by accidental fire and not by acid or any acts of the condemned prisoners.

The State Vs. Hosne Ara & Ors. 11 BLT (HCD)-170

 

Section -32(1)

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called Dying Declarations -Once the court is satisfied that the Dying Declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a Rule of Law but only a Rule of Prudence.

Touhid & Ors Vs. the State 15 BLT (HCD)-364

 

Section-33

At the instance of the defence time was allowed for further cross-examination of P. w. 1 and thereafter this witness could not be produced by the prosecution for further cross-examination, witness P.W.I having not been fully cross-examined, his evidence was inadmissible and should have been left out of consideration as contended by the learned Advocate for the appellants.

Held: The requirement of section 33 of the Evidence Act has been fulfilled in this case as it appears that the defence had ample opportunity to cross-examine the witness but for the fault of the accused and their subsequent conduct the concerned witness could not be produced on the dock for fur­ther cross- examination. Hence on such circumstances it cannot be said that the evidence of P.W.I is in admissible.

Bakul & Ors. Vs. The State 4 BLT (HCD)-14

 

Section-34  read with Bankers Books Evidence Act, 1891 Section-4

Section 4 exempts a banker from producing bankers' books, namely, ledgers, day books, cash-books, account-books and any other books used in the ordinary business of a bank to prove its claims. Instead, if a bank shall produce a certified copy of any entry or entries in the books of the bank in a manner as provided by section 2(8) of said Bankers' Books Evidence Act. Even when such certificate is produced and proved to have been so written that will not ifso facto prove the claim of a bank. Such entries would have to be corroborated by independent evidence.

BCCI Ltd. Vs. Bangladesh Electrical Industries Ltd. & Ors. 12 BLT (HCD)-502

 

Section-45

Opinions of Experts When the defence asserts that the disputed document is a genuine one and it has been duly acted upon. It becomes incumbent upon the prosecution to obtain the opinions of the hand writing and finger-print experts on the disputed deed to prove forgery.

Md. Ismail Hossain & Ors. Vs. The State 8 BLT (HCD)-290

 

Sections-57 & 60

Whether the author is living or dead, the book of reference must be an appropriate reference book in that the author must be shown to be properly qualified to make statements upon the subject and so only standard books acknowledged as authorities may be referred to-The reference to the booklet of unknown origin is therefore entirely disapproved.

State Vs. Abdul Khaleque 5 BLT (AD)-227

 

Section- 80

Non examination of the Magistrate recorded the confessional statement- the no requirement under the law that Magistrate should be examined the Gf shall presume the document to be gen and that the statement was duly taken.

Abdul Khaleque Mir Vs. The State 2 BLT (AD)-172

 

Section-106

Burden of proving fact specially within knowledge of any person. The definite and specific defence plea is Bus No Mymensingh BA-157 driver by ! was not involved in the accident but Bus Mymensingh BA-191 belonging to the owner was involved in it. This being within the special knowledge of the accused within the meaning of section-106 of the Evidence Act, a burden was cast upon him discharge it, mere so when the prosecution proved  the  guilt  of  the accused convincing and overwhelming evidence. The accused hopelessly failed to discharge the special burden.

Namaluddin Vs. The State 8 BLT (HCD)-121

 

Section -106

It appears that both the courts considered the defence plea and held plea to be false. It may be stated here that the defence is not always bound to give any explanation but if any explanation is given the court may consider it. The trial court after discussing and considering the evidence of witnesses found that Chapa was killed by somebody from inside the room and not by any one from outside the room through the window as claimed by the accused. The High Court Division in its turn held the same view. The High Court Division in clear terms held that it was not possible for any outside-miscreants to cause such injuries standing on nine inches wide carnish on the face and head of Chapa and kill her. The High Court Division thus in unequivocal terms expressed the clear view that the explanation given by the defence totally falls through and according to the High Court Division it was established that Chapa was killed in her room by the miscreants who were living within the house, went into her room, caused injuries in such manner that ultimately she succumbed to the injuries. In view of such concurrent findings of both the courts below on the basis of evidence on record we do not like to make further exercise on the point and we also are of the view that Chapa must have been killed by person/persons living inside the house on the night of occurrence.

The State Vs. Khandker Zillul Bari 14 BLT (AD) 91

 

Section-114(g)

The alamats including the incriminating articles along with the alleged heroine were not produced before the trial court- The alleged report of the chemical examiner was also not available in the record- material witnesses the I/O and the chemical examiner, none of them was produced as a witness it must be held that the learned Additional Sessions Judge committed illegality is not drawing an adverse presumption against the prosecution under section 114 (g) of the Evidence Act.

Ashok Kumar Saha Vs. The State 2 BLT (HCD)-79

 

Section-114(g)

The confessional statement Ext.7 of the confessing accused bears the reference of one Haider Ali son of Janab Ali who is neither witness nor accused in this case. The neighbours as well as the persons who allegedly took part in the occurrence as per confessional statement of the accused Akbor Ali  are  the  relevant witness  and non examination of any of them as witnesses or brining them on dock as accused creats presumption U/ S 114 (g) of the Evidence Act and raises a question of doubt in the prosecution and benefit of this defect would go to the accused.

Md. Akbor Ali & Ors. Vs. The State 7BLT (HCD)-317

 

Section-114(g)

In view of admitted bitter relationship between the parties as well as the private witnesses so examined in this case it was desirable for the prosecution to examine the close independent and disinterested neighbours. In the face of clear admission that 40/50 co-villagers were present just after the occurrence and they having not been produced in Court to show the bonafide of the prosecution, we find no with alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence.

Korban ali & Ors. Vs. The State 11BLT (HCD)-267

 

Section-114(g)

Onus of proof—although the prosecution must prove the guilt of the accused beyond all reasonable doubt, nevertheless after it has been shown that the wife at the relevant time of occurrence was at her husband's house and that she is subsequently found dead an obligation is cast upon the defence to account for the circumstances leading to the death of the deceased failing which the husband will be responsible for the death of the deceased.

Gias Uddin Vs. The State 11 BLT (HCD)-8

 

Section-114(g)

In the face of clear admission that 40/50 co-villagers were present just after the occurrence including the chairman and member of local union parishad and they having not been produced in Court to show the bonafide of the prosecution, we find no other alternative but to hold that had they been examined, would not have supported the prosecution case and in view of this matter the benefit of section 114(g) of the Evidence Act should go in favour of the defence.

Monu Sheikh & Ors Vs. The State 12 BLT (HCD)-177

 

Section-114(g)

The independent person —'Kamla' kader who was allegedly residing in the P.O. house in the night of occurrence having been with-held, we find no other alternative but to hold that had he been examined in this case, would not have supported the occurrence as alleged.

Monu Sheikh & Ors Vs. The State 12 BLT(HCD)-177

 

Section-114(g)

The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally knowing the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to have appear before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor (s) who is a material witness as regard particular mater then if not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s).

Hajee Lal Miah Vs. Nurul Amin & Ors. 13 BLT (AD)-145

 

Section 114(g)

Presumption against Prosecution Case In First Information Report it is stated that Sub-Inspector Sunil Kumar Sen who figured as charge sheet witness no. 11 accompanied Sub-Inspector of Police PW1 and, also! PW6  to  the  place  of occurrence and apprehended convict-appellant. PW6 in his testimony testified that local chowkidar took them to the place of occurrence but these two persons had not been placed on witness box by prosecution. No explanation even had been even assigned for their non-examination   by   prosecution. Nor production of above two witnesses was vea much fatal for prosecution case and presumption contemplated in Section 114(g) of The Evidence Act must follow.

Babul Vs. The State 13 BLT (HCD) 339

 

Section 114(g)

It is a cardinal rule in the law the best available evidence should be brought before fee court to prove a fact or the points in pue- when material witnesses are not called in a case and no sufficient explanation has been given for their absence, the court may draw a presumption that they would not support the prosecution.

Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473

 

Section-114(g)

In the instant case, the neighbors as mentioned above are the material witnesses who have been withheld from the examination and the prosecution has also failed to convincing reasons for their examining them. The prosecution examined on relatives and evidence cannot be relied n.

Md. Ali Azam & Ors Vs. The State 13 BLT (HCD)-473

 

Section – 114(g)

None of the brothers and sons of the deceased was examined. Not a single neutral neighbouring people was examined. Due to their non-examination presumption would be had they been examined they would not have supported the prosecution story. Non-production of the wife of the deceased, an alleged injured witness, raises serious doubt as to the truth of the prosecution case.

Abul Kalam & Ors. Vs. The State 14 BLT (HCD)214

 

Section -114(g)

?????? ?????????? ?? ???????? ??? ?????? ???? ????? ?? ???? ??? ??????? ?????? ??? ??? ?? ??????? ?????? ?? ?????? ??? ????? ??????? ?????? ??????? ??? ???? ?? ???????? ??????? ??? ???(??) ????? ????? ? ???? ???????? ??????

Md. Motiar Rahman Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313

 

Section-118

Mode of Ascertaining Competency of a Child witness.

It appears that in the instant case, a minor boy aged about 5/6 years is the only eye witness to the occurrence but in his cross -examination stated that he did not see the occurrence and he deposed as per dictation of the information of the case with whom he has been living since the occurrence-Learned Sessions Judge while examining a child witness did not look to his intelligence and competency and there is no such endorsement in the order sheet or deposition or judgment- there is also no sufficient corroboration by any independent and reliable witnesses- learned Sessions Judge was not justified in conviction the accused appellants relying on the solitary evidence of a child witness.

Kawsaun Nessa & Anr VS. The State 3 BLT (HCD)-122

 

Section-118

The position of a prosecutrix is a little different from that of an injured person simpliciter. The possibility of a prosecutrix being a collaborator cannot always be ruled out. Therefore a corroboration of the evidence of prosecutrix by at least some circumstantial evidence or a medical examination is always desirable.

Md. Hasan Vs. The State 7 BLT (AD)-378

 

Section-137 and section 139

By Section 137 and 139 of the Evidence Act an accused person has been given the opportunity to cross-examine a witness produced by the prosecution or to produce his own witness and evidence in support of his defence.

Jahangir Alam Vs. The State 15 BLT (HCD) 191

 

Section-145 read with Code of Criminal Procedure, 1898 Section-161

The Statement of an accused person which is not a confession but contains an admission of certain relevant facts is admissible under sections 18-21 of the Evidence Act, provided it is voluntary, even though retracted, if found to be true by the trial Court which is required to be corroborated by evidence of other witnesses in order to be the basis for conviction of the co-accused respondents and as regards statement under section 161 of the Code of Criminal Procedure the same is an statement and is not an evidence in the case and as such not at all admissible in law unless the witnesses are confronted with the said statement while deposing on dock having deposed contrary to the said statement, the same could not be of any avail to the prosecution but the statement could be utilized under section 162 of the Code of Criminal Procedure to contradict the witnesses in the manner provided under section 145 of the Evidence Act. Thus the statement under section 161 of the Code of Criminal Procedure is restricted to an investigation by the police for the purpose of police report.

The State Vs. Md. Mominullah (Mohan) 15 BLT (AD) 251

 

Section-154

Hostile witness

The evidences of witness is not to be rejected either in whole or in part simply because of being cross-examination by the party calling him, but the whole of the evidence as far as it affects both parties, favourable or unfavourable must be taken into account and assessed like any other evidence.

Amir Hossain Phali Vs. The State 5 BLT (HCD)-89

 

Section-157

Section 157 of the Evidence Act provides! that the former statement of a witness to furnish corroboration can be proved only if-it was made "at or about the time," where the fact took place. In order to corroborate the testimony of a witness any former statement made by such witness relating the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved. This section clearly speaks of the intention of the law that when the previous statement is to be use corroboration it must satisfy certain specifies^ conditions that the statement should be ma in relation to a fact which is so fresh in mind of the narrator that he may be assured to be speaking under pressure of collection alone, undiverted by any per motive i.e. the conditions should be such import proper legal sanctions in case should be variations from the truth.

The State Vs. Enayet Hossain @ Endu 12 BLT(HCD) 242

 

Section-193

Circumstances evidence —in the pre case it had been admitted by the defence I the wife died in her husband's house j there is no suggestion that the husband | away at the time of occurrence, prosecution assertion that the Appellant at his house and killed his wife has not been challenged on the ground that he was outside the house at the relevant time. The defence case that the deceased died by taking poison has been disproved. On the other hand the prosecution has proved beyond all reasonable doubt that the wife was killed and circumstantial evidence indicates that the husband was at his house at the time of occurrence. Further it appears that the Appellant was in absconsion from after the death of the deceased until his surrender on 08.11.1995 more than five years later. If the deceased dies of consuming poison he should have informed the police accordingly instead of absconding. Although his long period of absconsion is not by itself conclusive of his guilt but if lend weight to the circumstantial evidence against him.

Gias Uddin Vs. The State 11 BLT (HCD)-8

 

Evidence Act, 1872 read with Majority Act, 1875

Age of the victim

School certificate—in the instant case doctors certificate as to age of the victim at 17 1/2-181/2 years of age and an opinion as to the age is no conclusive proof thereof and the declaration in the statement under section 164 Cr. P.C. of the victim that she was a major are no proof of age and that radiologist’s opinion cannot be preferred to psitive evidence like school certificate.

Arun Karmaker Vs. The State 10 BLT (AD)-40

 

Circumstantial Evidence

P.W. 4 Abdul, Aziz who claimed to be a 'flight-guard in the area of Armanitola and he stated that he saw deceased Akber Sheith And Sultan Ahmed P.W.2 to go together by nchshaw towards Ananada Moyee School.

At United Transport Agency, very near to the place of occurrence he heard the firing sound and saw these two accused Ali Jan and Fazlu, Asad, Nairn and two others running away crossing the wall of Armanitola filed. It is not denied that near the place of occurrence there is Armanitola Math having a boundary wall. P.Ws. 14 and 16 have stated that they got this information from P.W. 4 in their house and in hospital immediately after the occurrence. All other P.Ws. also heard from P.W. 4 that he saw these two accused running away from the place of occurrence-—This strong circumstance lends support to the presence of the accused persons at night in the plan of occurrence.

Md. Nurul Alam Vs., Ali Jan & Ors. 8 BLT (AD)-23

 

Circumstantial Evidence

Sufficiency of for Conviction It appears that in this case excepting P.W. 2 there is no other eye witness of the occurrence, The prosecution has succeeded in proving that deceased Niru was found dead in the house of this condemned-prisoner while she was in his custody. In this case besides the oral evidence the prosecution also relied upon the circumstantial evidence. Admittedly Niru died at the house of this condemned-prisoner, her husband and naturally there cannot be any eye witness of the occurrence from the side of her father nor the someone from the house of the condemned-prisoner would depose in support of the murder or on the factum of assault by this prisoner upon the deceased. In such a situation the prosecution had no other alternative but to rely on the circumstantial evidence. In such circumstances when the wife met with her death while she was in the custody of her husband it is he who is to explain how she met with her death. The defence tried to impress that she was assaulted at her father's house by her relations who thereafter kept her forcibly at the house of this condemned-prisoner but none of the prosecution witnesses or even D. W. 1 has admitted this. No other defence witness was examined to prove this defence version of the case. According to the defence she was kept in the house of the condemned-prisoner at the date of occurrence which he stated in his statement recorded under section 342 of the Code of Criminal Procedure. He also stated that he saw his wife in injured condition. But he took no step for her treatment or inform any of the co-villager of the incident. It appears that he allowed his wife to die and even after her death he has not informed any of the co-villager or reported the matter to the police which is admittedly at a distance of 3 kilometers from his house. None of the inmates of the house also informed the police or took any medical help for saving the life of the deceased suggested that she was assaulted by the prosecution witnesses but no evidence was led in support of this suggestion. The witness produced by the condemned-prisoner also is silent as to the circumstances leading to the death of the deceased.

Abdul Motleb Howalder Vs. The State 8 BLT (AD)-288

 

Circumstantial Evidence – Sufficiency of conviction

Admittedly deceased Dhan Mia died in the house of accused Malek Mia. The father of Moina who is the wife to the deceased and that the accused were present in the house of Malek Mia on the night of occurrence. The defence has not challenged that the accused were not present in the house of Malek Mia.

Where Dhan Mia died on the night of occurrence, no suggestion was given to that effect that they were elsewhere. A suggestion was given to P.W. 6 that Meherunnessa and her son Sibu were not present. Meherunnessa was not convicted for murder. As regards Sibu, P.W. 2 stated that she saw him. Therefore the complicity of appellants in the murder of Dhan Mia been established by the prosecution beyond any doubt. The prosecution also has been able to prove the first circumstance support of the prosecution case deceased Dhan Mia along with P.Ws. went to his father-in-law's house to bring wife Moina. P.W. 2 has satisfactorily proved that she stayed in that house and that she been all the accused at night in the east hut, thus is he second circumstance prove against the accused. After the murder of Dhan Mia, the accused got a false lodged through Meherun Nessa with the police stating that Dhan Mia committed suicide with malafide intention of screening them (accused) from legal punished although they believed that the information given to the police was false. This is another circumstance P.W. 11 holding examination on the persons of deceased found injuries and clearly opined that the death was due to the said injuries, the defence could not satisfactory explanation as to how Dhan sustained such injuries. This is an circumstance proved against the acc Since the plea taken by the defence has not been substantiated by them or injuries alternative, having found false in vie the medical evidence on record, and we find that the accused were present place of occurrence when the deceased the prosecution has been able to prove a strong circumstance of the complicity accused in the murder of Dhan Mia excluding all other hypothesis than that of the guilt of the accused.

Yunus & Ors. Vs. The State 8BLT (HCD)-245

 

Circumstantial Evidence – When sufficient to hold a man guilty.

In the instant case, it was found on evidence that Saiful Islam was a rickshaw puller and used to work in Chittagong. He enticed the victim and brought her home in his village at velara, Gaibanndha, from Chittagong. He married her on 19.05.1996 and presumably started their conjugal life together. Suddenly, he dead body of the victim was found to be dangling from a tree on the morning of 24.05.1996. There is no evidence to suggest that he was not with her on the fateful night in their house. Besides, his inexplicable conduct showing a total disregard for the dead body of his own wife highlights his reckless indifference towards |is near ones and nakedly exposes the pathological condition of his mind. In such circumstances, in the absence of any reasonable explanation coming from his side, the law shall hold him responsible for the death of his wife, the victim.

The State Vs. Md. Joynal Abedin & Ors. 8 BLT (HCD)-376

 

Circumstantial Evidence – Onus to prove

True it is that an accused has got no obligation to explain anything , the onus to prove the accusation is always on the prosecution. But if two persons live together under one roof and one of them suddenly dies in a suspicious circumstances in an unnatural manner, the other person comes under an obligation to explain the circumstances leading to his or her death. In the absence of a plausible explanation, the law casts a prima facie responsibility on the person who is alive, for the death of the victim who was earlier with him just before his or her death.

The State Vs. Md. Joynal Abdin & Ors. 8 BLT (HCD)-376

 

Circumstantial Evidence when not sufficient for conviction

The Trial Court considered it as strong a circumstance against the appellant why he was though present in the PS at the time of lodging the FIR but did not become the informant. But he failed to notice that the FIR was written by P.W. 18 Ranjit Baruna and after reading it out he took the signature of P.W 1 Abu Hossain, Another fact noticed by the Trial Court, why P.W.I flatly denied in his deposition that the appellant was with him at the time of lodging the FIR even after his attention was drawn to the FIR did not receive proper consideration from it. Moreover, P.W. 17 found only one injury causing the death and that injury was caused by the appellant and the search for money was also made by the appellant as per the confessions then how the confessions could be treated to be inculpatory. As stated earlier, the Court found that there is not an iota of evidence on record from any of the witnesses examined by the prosecution implicating the appellant with the offence or any other accused persons. All three confessions if closely considered, do not inspire any confidence in anyjudicial mind. So, this a clear case of no evidence. For the reasons, the judgment and order of conviction based solely such confessions cannot therefore be sustained in law.

Abu Sayed Vs. The State 9 BLT (HCD)-175

 

Circumstantial evidence

In a case of circumstantial evidence, the incriminating circumstances must be clearly proved and they must not be incompatible with any reasonable hypothesis of innocence.

The State Vs. Monu Miah & Ors. 10 BLT (AD)-12

 

Circumstantial Evidence

All the aforesaid witness found the appellant carrying a 'Dao' and was threatening to commit suicide if Firoja would not go with him. He stayed for Firoja Begum in her father's house upto 2/3 A. M. of the fateful night. May be after loss of both eyes, he became absolutely dependent on her to pressure his daily routine of life. But it is in evidenced that Firoja Begum became tired of Rouf and tried to get rid of him, even by divorce, which Rouf might have learnt and could not accept. P.W.-9 Ataur Rahman found Firoja died due to asphyxia by strangulation. Abdur Rouf moved out of the house of P. W.-2 Gisauddin holding Firoja. Then, in the early morning Firoja Begum found lying dead on the south bank of the canal and Abdur Rouf was also found lying with her, of course with a cut injury at his neck. Nobody came between them in the intervening time. It would not be difficult for him to strangulate her to death, when he was holding her. After fading her death, as was found by the trial court, he might have wanted to avoid the liability inflicting a cut on his own neck with the seized 'Dao' In the Absence of any other circumstance or possibility. We find all circumstances indicate toward Abdur Rouf.

Abdur Rouf @ Rab Howlader Vs. The State & Ors. 11 BLT (HCD)-198

 

Circumstantial Evidence

Circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or "factum probandum" must be proved indirectly by means of certain inferences drawn from "factum probandum" that is the probative on evidentiary fact.

The State Vs. Md. Ershad Ali Sikder & Ors. 12 BLT (HCD)-125

 

Circumstantial evidence

The rule of circumstantial evidence is that the chain of circumstances must be knitted together closely, so as to led to an irresistible conclusion that the accused appellant alone had committed offence by excluding the possibility that any other person might have committed the offence. The chain of events must be such that the possibility of innocence of accused is wholly excluded and such facts are incapable of explanation of any, other reasonable hypothesis other than the guilt of the accused.

Rawsan Ara Begum Vs. The State 15 BLT (HCD) 29

 

Circumstantial Evidence

P.W. 3 a neighbour of the accused stat that he heard cries from the room of the victim Sheully in the night of occurrence b he was not allowed to enter the house and o the following morning he heard that Sheully was murdered- P.W.6 Doctor, who held the postmortem examination of the dead body of deceased Sheully Begum found several injuries, P.W.6. stated that the injuries as found might cause the death of the victim-The wife having died in the house of her husband in the night of occurrence and being no plausible and acceptable explanation as to how the victim received those injuries, the circumstantial evidence relied upon by the prosecution are strong enough to establish the guilt of the petitioner.

Abdus Shaku Miah Vs. The State 3 BLT (AD)-187

 

Circumstantial Evidence

The principle and law for convicting the accused only on the basis of the Circumstantial Evidence is well settled by many decisions such as 1985 BLD (HCD) 129, Para-21 where the test were re-iterated as to the Circumstantial Evidence- AIR 1984 (SC) 1622 has laid down singular principle's followed by 41DLR (1989) 10.

Haji Md. Jamaluddin and others Vs. The State 1 BLT (HCD)-23

 

Circumstantial Evidence

Both the Trial Court and the High Court Division considered the circumstantial evidence against the petitioner in details and found that the circumstances are such that no other hypothesis other than the guilt of the petitioner can be derived therefrom. Although the accused -petitioner was also injured in the bomb explosion there is absolutely no suggestion to the prosecution witnesses that the bomb was placed in the Beauty Parlour before the arrival of the petitioner and that the petitioner was in no bray involved with the possession of the bomb. On the contrary the state of the accused-petitioner's trouser which was made a material exhibit evidently showed that the explosion ripped through his trouser, thereby making the circumstantial evidence even more compelling against the petitioner.

Ranjit Vs. The State 5 BLT (AD)-206

 

Circumstantial evidence

Law on circumstantial evidence is well settled. It requires that prosecution is to prove each of the circumstances having a definite tendency pointing towards the guilt of accused person and, though, each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis of innocence and unequivocally point to the guilt of the accused.

The State Vs. Md. Delwer Hossain Faraji 13 BLT (HCD)457

 

Doubtful- the allegations of rape

It appears from the facts of the case that victim Shakina alone went to the house of her sister Shahida for having dinner at that house and was coming back to her house at 10-00 at night accompanied by her sister with a kupi bati in hand and when the light of the Kupi bati was allegedly extinguished then her sister went back to her house for lighting the kupi bati keeping the victim girl in the midway. It has not been explained why the victim girl was kept above in the midway instead of taking her back with the sister when she went back home for lighting the kupi bati. This factor also create doubt about the whole allegations of rape-absence of sign of rape in the medical report and non-examination of the wearing clothes made the whole case most doubtful one.

Seraj Talukder Vs. The State 6 BLT (HCD)-82

 

Vital Evidence

In a case of rape, doctors report is a vital evidence to prove the sign of rape but it appears from the record that although the victim was examined by a doctor but it appears that neither the doctors was examined in the case nor his report.

Seraj Talukder Vs. The State 6 BLT (HCD)-82.

Evidence Act, 1872 (I of 1872)

 

Section-6

Unregistered deed of gift—the plaintiffs case was that the suit property was originally belonged to Abdul Wahab Howlader. The said Abdul Wahab Howlader executed a deed of gift in favour of the plaintiffs on 27.7.64 and delivered the possession but the said deed could not be registered due to certain difficulties. The defendants claimed the title over the suit land as a residuary sharer. Hence the plaintiff filed the title suit for declaration of title in respect of suif land—the learned trial court in consideration of oral and documentary evidence and materials on record decreed the suit. Against the said decree the defendants preferred appeal. Learned Appellate Court allowed the appeal by reversing the decree of the trial court—Held: That the plaintiffs, being in exclusive possession over the statutory period of limitation from the date of institution of the suit by the plaintiffs in the year 1984 and to the complete ouster of the defendants for about 20 years from the suit property have acquired a valid title even on the basis of the defective deed of gift being an unregistered one. It further appears that the defendant could neither challenge the said unregistered deed Ext. 1 nor file any suit to establish their alleged right in the suit property within the statutory period of 12 year and it is further held that the defect of the plaintiffs deed of gift has been cured with the passage of time and the plaintiffs imperfect title has been perfected by the said period.

Amirunnessa & Ors Vs. Abdul Mannan Howlader & Ors. 3 BLT (HCD)-245

Section-6

Document—Plaintiff instituted the suit for declaration of title and also for a declaration that the suit property cannot be treated as vested and non-resident property (Enemy Property) alleging, inter alia that one Jagat Chandra Karmaker was the C. S. recorded owner of the suit property. After his death his son Gopal Karmaker inherited the said property. This Gopal Karmaker transferred the suit property to one Harendra Lal Saha and Jagannath Saha. After the death of Harendra Lal Saha his property was inherited by his two sons Chandi Gopal Saha and Ashutosh Saha. One Parveen Akter purchased the suit property by registered deeds from Chandi Gopal Saha, Ashutosh Saha and Jagannath Saha. From this Parveen Akther plaintiff- appellants had purchased the suit property while the plaintiffs were possessing the suit land, they came to know that the property in question was declared as vested and nonresident property—learned Subordinate Judge dismissing the suit holding that the plaintiffs failed to produce any document to show the transfer in between Gopal Karmaker and Harendra Lal Saha and others—

Held : The averments made in the plaint and the evidence of P.W.I together with the written statements of defendant No. 2 and the evidence of P.W. I it clearly appears that Harendra Lal Saha and others became the owners of the suit property and they possessed the same and sold the same to Mrs. Parveen Akhter by registered sale deeds in 1981—the rent receipts together with the continuous record as right vide exhibits I series may be treated as collateral evidence of title in favour of the plaintiff. Now, if we consider the oral as well as documentary evidence as stated above, we find that this Harendra Lal Saha and others acquired right and title over the suit property. The documents by which the heirs Harendra Lal and Jagannath transferred the suit land to Parveen Akhter and the registered document by which Parveen Akther transferred the land to the present plaintiffs are not disputed at all. So it is held that the learned Subordinate Judge failed to consider the material evidence or record as stated above and he has arrived at a wrong finding and as such it cannot be sustained. [Paras-16 & 17]

Md. Amjad Hossain & Ors Vs. Upazilla Nirbahi Officer Savar & Ors 3 BLT (HCD)-163

 

Section-33

The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs vessel) who appeared before the Magistrate, 1st. Class, Marine Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court was relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. [Para-14]

BIWTC  Vs. Al-Falah Shipping Lines Ltd. & Ors. 6 BLT (AD)- 103

 

Section-73

Handwriting expert opinion as to the identity of the disputed signatures arid initials on a questioned document—Contention than the opinion of the handwriting expert is preferable to the courts exercising the power under section 73 of Evidence Act which is to done very cautiously and the said course is hazardous and inconclusive was rejected— petition dismissed.

It is true that long line of decisions have expressed divergent views and one view is that the Court should not take such hazardous steps for expressing any opinion and another view to the contrary. In the context of two views, a Judge naturally hesitates to exercise the power conferred by section 73 to compare handwriting by using his own eyes. This is more so whenever evidence is scanty or unreliable or there is no evidence of hand-writing expert but these are mere words of caution. There is no hard and fast rule which prohibits such course by the Judge.

The privy Council itself compared the disputed signatures with admittedly genuine signature in Monindra Vs. Tshalaxmi Bank, A. I. R. 1945 P.C. 150 and the same was followed in A.I.R. 1949 PC 325. Mr. Gafur strenuously urged that this court should lay down the law.

This contention does not appeal to us in view of the fact that the proceeding is still pending in the Court below and sufficient guidance has been given by the long line of decisions for the Court which do not warrant any further pronouncement.

Nitai Chand Shah & Ors. Vs. Md. Aga Khan & Ors. 1 BLT (AD)-46

 

Section- 101

Onus of proof—both sides have adduced their evidence in support of their respective cases and when the date is fixed for argument the defendant petitioner filed two applications before the Family Court, one for examining the plaintiff opposite party No. 1 by a Gynecologist to see whether she is still virgin in the instant case the plaintiff-opposite party No. 1 is to prove her case and will get its own course and for matter she cannot be examined by a competent doctor to as certain as to whether she is virgin or not because thereby the onus of proving the defense will be illegally shifted on the plaintiff opposite party No. 1. Learned Family Court rightly rejected the application of the defendant petitioner. [Para-8]

Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher Begum 4 BLT (HCD)-148

 

Section- 101

Burden of proof—vested property — when challenged in a Court of law, the onus is heavily on the Government to prove affirmatively that the property in question is in fact a vested property, failing which some evidence to the contrary adduced by the successors-in-interest of the original tenant or the transferees showing that they are in rightful possession of the disputed properties, is sufficient to take the same out of the ambit of enemy property laws. Mere claim by the Government or by the vested property authority that a certain property is a vested property, without the necessary factual basis and legal foundation, has no validity in the eye of law. [Para- 18]

Maran Mondal & Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22.

 

Section-101

Whether the cashier is a necessary party – The plaintiff respondent filed money suit against Bank, the sole defendant appellant for realisation of deposited money by himself— the cashier is not a necessary party in the suit in the facts and circumstances of the case. (Para-8)

Pubali Bank Vs. Md. Selim 7 BLT (HCD)-21

 

Proof of a document

Unless objection as to admissibility of a document was taken at the earlier opportunity, that is, at the time of admitting the documents into evidence and marking it as an exhibit, the question of its admissibility cannot be raised at a subsequent stage. (Para-l3)

Pubali Bank Vs. Md. Selim 7BLT (HCD)-21

 

Sections-102, 103 & 104

Suit for cancellation of Heba-bil-ewaz— The onus was upon the defendants according to prove the gift has been made intentionally, voluntarily and the consideration has passed. [Para- 12]

Md. Nurul Islam & Ors. Vs. Azimom Bewa 6 BLT (HCD)- 116

 

Section- 102

Burden of proof is that obligation to adduce evidence to the satisfaction of the court in order to establish the existence or non-existence of a fact contended by a party. The provision as to the burden of proof is founded on the Rule ‘el incumbit probatio, qui dicit non qui negat’– the burden of proving a fact rests on the party who substantially assents of the affirmative issue and not upon the party who denies it; for a negative is usually incapable of proof’. This Rule is derived from the Roman Law and is supportable not only on the ground of fairness but also upon that of the greater practical difficulty which is involved in proving a negative than in proving an affirmative. This Rule is an ancient Rule founded on consideration of good sense and should not be departed from without strong reasons.

Mohammad Azim & Ors Vs. Doly Islam & Ors 7 BLT (HCD)- 164

 

Section- 103

Onus – Presumption of genuineness of Ext. 4, the pattani register called for by the plaintiff. The plaintiff claimed that she took settlement of suit land by means a ‘Dhol fordi’ and Dakhila grarted by the Midnapur Zamindari Company Ltd. — The appellate court summarised its findings by way of stating that PW 1 and PW2 were not competent witnesses while the witnesses of the alleged settlement Kalipada Ghose and Korban Au were not cited as witnesses. There was no evidence that the tahsiider who allegedly gave the settlement had any authority to do so. The Dakhilas produced by the plaintiff were also not properly proved and the trial court wrongly exhibited the ‘fordi’ and Dakhilas as the basis of settlement as there was no proper proof of them — We may add that there is nothing on record to relate Ext.4 to the settlement claimed by the plaintiff. Agaib, the hukumnama and other documents of settlement in favour of the plaintiff were for the plaintiff to produce. In the absence of proof of existence of the said documents the defendants could not be supposed to be in a position to produce them. Thus the High Court Division had obviously given a wrong onus and drawn an incorrect presumption of genuineness of Ext. 4. [Paras-13 & 15]

Bangladesh & Anr. Vs. Abdul Latif Khan & Ors. 7 BLT (AD)-208

 

Section-114 (g)

In this case nowhere in the plaint it has stated that any of the attesting witnesses was present at the time of finalisation of talk for entering into the alleged agreement by the parties. The attesting witnesses appeared at the scene at a subsequent stage only at the time of execution of the alleged bainapatra, which is just a follow-up of the earlier proceedings. So, the earlier part of the proceedings remains totally unexplained for reasons best known to the plaintiff. The conspicuous absence of the plaintiff from the scene without any justifiable reason appears to be a mystery that has not been dissolved any cogent explanation and on that count the learned Court of appeal below was perfectly justified in drawing an averse presumption under section 114(g) of the Evidence Act. [Para- 13]

Abdur Rahim Vs. Arfin Rahman & Ors 6 BLT (HCD)-51

 

Section-115

The respondent voluntarily wanted to go retirement as his juniors had obtained promotion. He clearly mentioned in his letter that he did not have the requisite qualifying service to opt for retirement, even then he sought permission for retirement upon special consideration. It was on such representation the order of release was passed. He is now stopped to challenge the release order. A party litigant cannot be permitted to assume in consistent positions in court, to play—fast and loose, to blow hot & cold, to approbate and reprobate to the detriment of his opponent. [Paras- 17 & 20]

Bangladesh Pajatan Corporation & Ors. Vs. Md. Mafizur Rahrnan & Ors. 2 BLT (AD)-49

 

Section-115

Whether suit is riot barred by estoppel and waiver.

The plaintiff was threatened with dispossession in a summary way by the defendants and it was under the instant threats of forcible dispossession he had to pray for year-

ly lease of the suit property for saving his possession, albeit under protest and lost no time in coming to the court for vindication of his grievance—In the present case the plaintiff was always diligent in asserting his own title in the suit property and he never abandoned his claim of ownership over it nor the defendants were misled by his prayer for annual lease so as to change or alter their position to their detriment and the prayer for temporary lease being obviously under protest and without any prejudice to the rights of the parties, the doctrine of estoppel or waiver has no manner of application in the present case. [Paras- 12 & 13]

Maran Mondal & Ors. Vs. A. D. C. (Rev). 6 BLT (HCD)-22

 

Section- 115

Pre-emptor is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger to the case jote—In the instant case the pre-emptee of course, took such a plea of the principles of waiver, estoppel and acquiescence in his written objection and led some evidence. The pre-emptor, on the other hand, stoutly denied the said assertion and stated that the sale took place stealthily and beyond his knowledge without serving the statutory notice upon him and consequently he had no knowledge about it for quite a long time and he filed the pre-emption case promptly on obtaining the certified copy of the sale deed, following his knowledge about it—

Held: Section 96 of the State Acquisition Tenancy Act being a beneficial legislation intended for the convenience of co-sharer of a holding as well as the convenience of tenants holding land contiguous to the land transferred, any provision of law barring the claim of pre-emption must be strictly construed, judged from that angle of vision the claim of waiver and acquiescence made by the pre-emptee must be rejected as being totally unsubstantiated. [Para- 11]

M. M. Ahmed Sarker Vs. A. Khaleque & Ors. 6 BLT (HCD)-66

 

Section- 115

The appellant as a Government servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and as such the principle of estoppel is not attracted in the facts and circumstances of the case in as much as the appellant under compelling circumstances had to accept the financial benefits from the Government as contended by the appellants counsel.

Held : We are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act. [Para-8]

Md. Jahangir Kabir Vs. Bangladesh 4 BLT(AD) -14

Section—115

Whether an attesting witness is bound by the contents of a document-

There is no evidence in the instant case that Sheikh Babu had any knowledge about the contents of the document attested by him beyond his mere attestation. Therefore it cannot be said that Sheikh Babu was in any way bound by the transaction by the kabala in question. [Para—9]

Amanatullah & Ors Vs. AU Mohammad Bhuiyan & Anr 6 BLT (AD)-1

Section- 135

When there are two sets of defendants to contest the suit and if one set of defendants goes to supports the claim of the plaintiffs wholly or in part, when in that case that set of defendants should be asked to cross-examine the witness of the plaintiff first as contended by the petitioner’s Advocate.

Held: Admittedly there is nothing in the Code specifically as to which of the defendants should cross-examine any prosecution witness first and hence, a court is to fall back on section 135 of the Evidence Act which speaks of the discretion of the court to fix the order of production and examination of witnesses, of course such discretion should be exercised judicially and not arbitrarily in the facts and circumstances of each case. [Para-7]

Shamsul Alam & Ors Vs Amirul Rahman Choudhury & Ors 3 BLT (HCD)-170

 

Section- 138

Examination of witnesses and their cross-examination

The right of the adverse party to cross- examine a witness is never confined to the facts deposed to by the witness in his examination-in-chief but it extends to all matters relating to the suit. The adverse party has the right to cross-examine a witness on all facts relevant in the suit.

Md. Khalilur Rahman Vs. Md. Asgar Ali 7 BLT (HCD)-352

Section- 138

Principle on Re-Examination

It is well-settled that where is no ambiguity or where there is nothing to explain, questions which are to be put in re-examination with the sole object of giving a chance to the witness to undo the effect of a previous statement cannot be allowed. To be precise, re-examination shall not be allowed to destroy the effect of cross-examination. [Para-8]

Ihteshanur Rahman Vs. Most. Masuda Khatun & Ors. 6 BLT (HCD)-47

Section- 167

Section 167 of the Evidence Act provides that if there is sufficient evidence to justi1r the decision then improper admission or rejection of the evidence will be no ground for a new trial. [Para- 14]

Jamaluddin & Ors. Vs. Abdul Majid & Ors. 6 BLT (AD)-137.

 

Evidence Act

[I of 1872]

 

Section 3— Relationship of the witnesses with a party cannot be the
sole ground of disbelieving their evidence unless contradiction and
inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564.

 

Section 3— Partisan evidence is no doubt suspect, but cannot be
discarded without finding any inherent infirmity and/or contradictions therein
making the same unworthy of credence.

In the context of prevailing deteriorating law and order
situation in the society where open threat is given to the witnesses not to
depose in support of the prosecution case the difficulty of the prosecution to
bring independent witnesses, and the rising tendency of witnesses giving
testimony in the Court to favour the accused giving different versions of the
occurrence from the one made to the investigation officer at the time of
investigation, for the above reasons, should be considered before finding fault
with the prosecution for non-production of independent witnesses and relying on
the evidence of the witnesses declared hostile by the prosecution without
properly evaluating whatever evidence is available on record with a critical
eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618

 

Section 3— Recognition by torch and hurricane at dead of night is
doubtful. Abu Bakker and others vs State
49 DLR 480.

 

Section 3— A witness has a tendency to exaggerate, embroider and also
to implicate falsely some other person in addition to the real offender. The
Court is to scan the evidence so as to come to a decision as to which part is
acceptable and only in case of impossibility to separate the truth from
falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349.

 

Section 3— Evidence adduced by the prosecution being of a
circumstantial nature and there being a missing link in the chain of
circumstances, the prosecution failed to prove the guilt of the appellants
beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97

 

Section 3— In the absence of the practice of registration of birth in
the official register kept by any public authority, one cannot really be sure
of the date of birth of any particular person. Ultimately, it falls on the
court to determine the age of the victim girl based on the impression received,
by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112.

 

Section 3— Long delay in examining the material witnesses casts a
doubt on the whole prosecution case. Syed
Nazakat Hossain alias Ujjal vs State 48 DLR 139.

 

Section 3— Circumstantial evidence —If the circumstances are not
proved beyond all reasonable doubt by reliable and sufficient evidence and if
at all proved but the same cumulatively do not lead to the inevitable conclusion
or hypothesis of guilt of the accused’s alone but to any other reasonable
hypothesis compatible with the innocence of the accused then it will be a case
of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486.

 

Section 3— Circumstantial evidence must be so strong as to eliminate
the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467.

 

Section 3— The statements under section 164 of the Code of Criminal
Procedure recorded before an authority other than the Judge who tried the case
was not the statement of the witnesses produced before him, and, as such, this
could not be treated as oral evidence. Such statements could not be used as
substantive evidence for arriving at any finding as to the guilt or innocence
of the accused. Babloo and another vs
State 47 DLR 337.

 

Section 3— A witness for the prosecution does not become partisan per
se nor an eye-witness can be disregarded merely because he has come to support
the prosecution party. It was necessary to consider the whole evidence and then
to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

 

Section 3— Benefit of doubt to the accused would be available provided
there is supportive evidence on record. For creating doubt or granting benefit
of doubt, the evidence is to be such which may lead to such doubt. The law
would fail to protect the community, if fanciful possibilities are admitted,
thus, deflecting the course of justice. Al-Amin
and 5 others vs State 51 DLR 154.

 

Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the
death for which he was placed on trial, but the murder having taken place while
the accused was living with his deceased wife in the same house; he was under
an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544

 

Sections 3 & 30— Confession of co-accused—The confession of an accused is no
evidence against the co-accused. Such confession cannot be taken into
consideration against his co-accused and it can only be used to lend assurance
to other legal evidence. But in the absence of any substantive evidence the
confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306.

 

Sections 3 & 30— It is true confession of an accused may be used as against
other co-accused in the same trial. But this is for a limited purpose.
Confession of a co-accused itself is not evidence but it may be used as such if
it is found to be true and voluntary as against other co-accused not as a
solitary basis but for the purpose of lending assurance to any other evidence
found against him. Abul Hossain and
others vs State 46 DLR 77.

 

Sections 3 & 30— Since the confessional statement is not required to be
taken on oath and taken in presence of a co-accused and not tested by
cross-examination it cannot be considered as substantive evidence against the
co-accused.. Mojibar vs State 51 DLR 507

 

Section 5— The Court ought not to have rejected the evidence of
witnesses merely on the ground that they were not disinterested witnesses when
their examination-in-chief could not be shaken in cross-examination by the
defence. Samad Sikdar @ Somed Sikder vs
State 50 DLR (AD) 24

 

Section 5— In the instant case where bitter enmity between the parties
is admitted, some sort of corroboration of the evidence of interested witnesses
is required as a rule of prudence. Abdul
Kader alias Kadu and others vs State 49 DLR 577

Section 5— Where bitter enmity between the parties is admitted some
sort of corroboration of the evidence of interested witnesses is required as a
rule of prudence. Serajul Islam and
others vs State 48 DLR 165.

 

Section 5— Courts must seek corroboration before acting upon interested
witnesses in a criminal trial. It is the Court’s solemn duty to assess the
evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184.

 

Section 5— Police witnesses are partisan or interested witnesses in the
sense that they are concerned in the success of the raid. Their evidence must
be tested in the same way as the evidence of the other interested witnesses by
the application of diverse considerations which must vary from case to case.

In view of the attitude as aforesaid of the learned Tribunal
Judge regarding the police witnesses, we are at the outset required to settle
the point. There cannot be any rigid consideration in this respect. In
assessing oral evidence Judges may call in aid their experience in life and
test the evidence on the basis of probabilities. Thus in a proper case, the
Court may look for independent corroboration when it is found not safe to dispense
with. Sirajul Islam (Md) vs State 48 DLR
301.

 

Section 5— An unreasonable delay in lodging the FIR inevitably gives
rise to suspicion as to the trustworthiness or otherwise of the prosecution
version of the case. State vs Tajul Islam
48 DLR 305.

 

Section 5— When the alleged eye­witnesses recognised the miscreants and
disclosed their names to the informant before lodging the FIR and still then
the informant does not mention their names in the FIR, the evidence of such
witnesses must be kept out of consideration.
State vs Tajul Islam 48 DLR 305.

 

Section 5— If there are admixture of falsehood so that it becomes
impossible for the courts to separate the grains of truth from mass of chaff,
then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy
Commissioner Madaripur 48 DLR 509.

 

Section 5— When the witness has animus against the accused her evidence
cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517.

 

Section 8— Mere abscondence for some time without any guilty mind
cannot be an incriminating circumstance against the accused to be relied upon
for basing his conviction. Shahjahan vs
State 46 DLR 575.

 

Section 8— In a case where bitter enmity is admitted between the parties,
it is required as a rule of prudence that there should be some corroboration of
the evidence of the interested witness. Amir
Hossain Dhali and other vs State 49 DLR 163

 

Section 8— As the condemned-accused absconded from the very beginning
of the case, it appears that the learned Sessions Judge has been influenced for
the same in awarding the capital sentence against him which is against the
decided principle of law.

From the conduct of a person for absconding after commission
of the offence may sometimes be evidence to show that he was concerned with the
offence. But it is usually a very small item in the evidence on which a
conviction can be based. State vs Balai
Chandra Sarker 47 DLR 467.

 

Section 8—Motive is not imperative in every case of murder and even if
motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590.

 

Section 8— Abscondence—Though the fact that the accused absconded soon
after the crime is not an evidence itself but it may lend weight to other
evidence. Ashraf Ali Munshi vs State 48
DLR 590.

 

Section 9— Long abscondence and non-submission to the process of the
court speaks a volume against the accused persons and clearly suggest their
involvement in the crime. Abscondence of the accused persons furnished
corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154

 

Section 9— The non-holding of the Test Identification Parade cannot
affect the identification of the accused Shamim Hossain by the victims at the
time of trial and the statement made by the witnesses are the legal and
substantive evidence in the eye of law. Al-Amin
and 5 others vs State 51 DLR 154

 

Section 24— Since the confessing prisoner neither filed any petition
from jail nor directly filed any petition in Court nor made any oral allegation
retracting from the confession his last moment retraction cannot be
entertained. State vs Kamal Ahmed 49 DLR
381.

 

Section 24— Extra-judicial confes­sions are not usually considered with
favour but it does not mean that such a confession coming from a person who has
no reason to state falsely and to whom it is made in the circumstances which
tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43.

 

Section 30— There being no independent evidence except the confessional
statement of appellant Farook Mahajan against the other accused appellants. The
trial Court was wrong in finding all the appellants guilty.A retracted
confession; like the one which is not retracted, may form the sole basis of
conviction of the maker if the court believes it to be voluntary and true. But
as against the co-accused, the evidentiary value of a retracted is practically
nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State
49 DLR 47

 

Section 30— Confessional statement of one accused cannot be used as
evidence against another co-accused unless there is any independent
corroboration. Sohel Monir, son of M A
Monir of Dhaka vs State 49 DLR 407

 

Section 30— The evidentiary value of a retracted confession is
practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs
State 49 DLR 407

 

Section 30— The confession of a co-accused may be used only to lend
assurance to other evidence on recorded in support of the guilt of the accused
but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588.

 

Section 30— No statement that contains self-exculpatory matter can
amount to confessional statement if the exculpatory statement is of some fact
which if proved would negative the offence confessed.

The statement of accused Bachchu in his confessional
statement as quoted are the admission and not confession as confession involved
a voluntary acknowledgment of guilt. From the admission of accused Bachchu it

cannot be said that he was aware that Khairul would be
murdered by the other accused. He, therefore, cannot be said to have abetted
that offence of murder. State vs Md
Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355

 

Section 30—If confession falls short of plenary acknowledgment of guilt
it would not be a confession even though the statement contained some
incriminating fact. J abed Ali (Md) alias
Jabed Ali and others vs State 51 DLR 397

 

Sections 30 & 3—Confession of co-accused—The confession of an accused is no
evidence agianst the co-accused. Such confession cannot be taken into
consideration against his co-accused and it can only be used to lend assurance
to other legal evidence. But in the absence of any substantive evidence the
confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306.

 

Sections 30 & 3—It is true confession of an accused may be used as against
other co-accused in the same trial. But this is for a limited purpose.
Confession of a co-accused itself is not evidence but it may be used as such if
it is found to be true and voluntary as against other co-accused not as a
solitary basis but for the purpose of lending assurance to any other evidence
found agianst him. Abul Hossain and
others vs State 46 DLR 77.

 

Sections 30 & 3—Since the confessional statement is not required to be taken
on oath and taken in presence of a co-accused and not tested by
cross-examination it cannot be considered as substantive evidence against the
co-accused. Mojibar vs State 51 DLR 507.

 

Section 32—It is not required for a dying declaration that the maker
should be in expectation of his immediate death nor it is restricted to
homicidal death.. Humayun Matubbar vs
State 51 DLR 43.

 

 

Section 32(1)—Unless the dying declaration as compared to other evidence
appears to be true, it cannot by itself form the basis of conviction of the
accused. State vs Tota Mia 51 DLR 244

Section 33—When the concerned witness could not be produced in the dock
for further cross-examination for the fault of the accused it cannot be said
that the evidence of the witness is inadmissible. Bakul and others vs State 47 DLR 486.

 

Section 45—The High Court Division rightly found that it was unsafe to
convict the accused persons on the uncorroborated opinion of handwriting and
fingerprint expert. State vs Raihan Ali
Khandker and others 50 DLR (AD) 23.

 

Section 45—The Court was not justified in convicting the accused
without examination and comparison of the disputed signature on the back of the
cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441.

 

Sections 45 & 73—The expert’s opinion is not a substantive piece of evidence.
The Courts below were quite competent to arrive at their own conclusion as to
whether or not the signatures appearing on Ext 3 series were those of the
petitioner. Nurul Huq alias Md Nurul
Hoque vs State 50 DLR (AD) 88.

 

Sections 57 & 60—The Appellate Division will set no example before the Courts
to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

 

Sections 73 & 45—The expert’s opinion is not a substantive piece of evidence.
The Courts below were quite competent to arrive at their own conclusion as to
whether or not the signatures appearing on Ext 3 series were those of the
petitioner. Nurul Huq alias Md Nurul
Hoque vs State 50 DLR (AD) 88.

 

Section 80—Non-examination of the Magistrate who conducted the TI
parade renders the memorandum drawn by him inadmissible as it is not a judicial
proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83

 

Section 80—It is not always necessary that the Magistrate who recorded
the confessional statement should be produced in Court as a witness. Section 80
provides that even without production of the Magistrate such statement may be
taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212.

 

Section 80—It dispenses with the necessity of a formal proof of a
confession duly recorded by a Magistrate in accordance with the provisions of
section 164 of the Code of Criminal Procedure. In such a case the examination
of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305.

 

Section 80—It was injudicious to rely upon confession without calling
the Magistrate as a witness. The Court is required to see not only that the forms
under sections 164 and 264 CrPC were complied with but the substance underneath
the law equally adhered to. Bimal Chandra
Das alias Vim and 3 others vs State 51 DLR 466

 

Section 114(g)— Non-examination of independent witnesses, especially some
of the close neighbours calls for a presumption against the prosecution. This
view finds support from the case reported in 25 DLR 398. Kawsarun Nessa and another vs State 48 DLR 196.

 

Sections 101 & 106— Since no special knowledge of the relevant fact as to committing
of the crime could be attributed to the accused the provisions of sections 101
& 106 of the Evidence Act have no applicability in the case. Kawsarun Nessa and another vs State DLR 196.

 

Sections 101 & 106— Section 106 does not relieve the prosecution of the duty to
discharge its onus of proving a case as has been imposed by section 101 of the
Evidence Act. Shahjahan Talukder @ Manik
and others vs State 47 DLR 198.

 

Section 114(g)— The principle laid down in the said case along with the
provision of 114(g) of the Evidence Act is applicable in the present case where
the prosecution suffers for non-examination of dis-interested and independent
witnesses as though the occurrence is alleged to have taken place in the broad
day light on the busy pathway. Alamgir
Hossain (Md) alias Alamgir Hossain and another vs State 49 DLR 590.

 

Section 114(g)— Withholding of charge-sheet witnesses—In a case where there
is no eye-witness or circumstantial evidence, it is essential that next-door
neighbours or those living near the place of occurrence be examined. Momin alias Md Mominul Huq vs State 48 DLR
282.

 

Section 118— All persons, who can understand the questions put to them
or can give rational answers to those questions are competent to testify before
a court.

It is not imperative for the court to subject a child
witness to preliminary examination before reception of his evidence. The court
may satisfy itself during the progress of the evidence in court that the
witness is capable of understanding the questions put to him and of giving
intelligible reply. In case of such satisfaction, the evidence becomes
admissible. It is, desirable that the court should make an endorsement about
its satisfaction. Seraj Miah vs State 49
DLR 192.

 

Section 118—Though a child witness, PW 2 received injuries in the hands
of the appellants when his father was done to death and the witness having
testified about the factum of the occurrence and the same having not been
shaken in cross-examination, the witness, though a child, should be believed in
the facts of the case. Forkan alias
Farhad and another vs State 47 DLR (AD) 149.

 

Section 134—In order to convict an accused solely on the basis of a
solitary witness like the police officer or the person who made the search and
seizure, the Judge must ensure that such witness is disinterested and the
evidence is unimpeachable and the other witnesses to the search who are alleged
to have resiled from their previous stand are unworthy of credit. Talebur Rahman alias Taleb and 2 others vs
State 49 DLR 167

 

Section 134—Even on the basis of a single witness a conviction can be
maintained but such a witness must be fully reliable, above reproach and not
shaken. Ashok Kumar Saha vs State 46 DLR
229.

 

Section 134—Law does not require any particular number of witnesses to
prove a case and conviction may be well-founded even on the testimony of a
solitary witness provided his credibility is not shaken. Al-Amin and 5 others vs State 51 DLR 154

 

Section 134—It is true that under section 134 of the evidence Act conviction
can be based on the Evidence of a single witness but the evidence of that
witness must be of unimpeachable character. Bimal
Chandra Das alias Vim and 3 others vs State 51 DLR 466

 

Section 145—Statements made under section 161 CrPC are not substantive
evidence. Such statements can only be utilized under section 162 CrPC to
contradict the witness in the manner provided by section 145 of the Evidence
Act. Abdus Subhan vs State 46 DLR 387.

 

Sections 145 & 155—The trial Court illegally referred to and considered the
statements of witnesses recorded under section 161 Criminal Procedure Code,
which could only be used to contradict or corroborate the witness. Abu Bakker and others vs State 49 DLR 480.

Sections 145 & 155—Statement of a person recorded under section 164 CrPC is not
a substantive piece of evidence of the fact stated therein. Such statements
recorded by a Magistrate under section 164 CrPC can only be used for
contradicting the maker of it under sections 145 and 155 of the Evidence Act or
for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192

 

Section 146—Mere relationship of the witness should not be a ground for
discarding his evidence unless he is found to be biased and lying. Sarwardy Kamal and others vs State 48 DLR
61.

 

Section 154—Even if there is some discrepancy in the evidence of a
witness with regard to some part of the case, for that his entire evidence on
the remaining part should not be discarded. Abdus
Sukur Mia vs State 48 DLR 228.

 

Sections 154 & 142—Court may in its discretion permit a party to put questions
to its witness which are usually put in cross-examination by the adverse party.
Babul vs State 50 DLR 490

 

Sections 154 & 155—The evidence of a witness is not to be rejected either in whole
or in part simply because of being cross-examined by the party calling him, but
the whole of the evidence as far as it affects both parties, favourable or
unfavourable, must be taken into account and assessed like any other evidence. Amir Hossain Dhali and others vs State 49
DLR 163

 

Section 156—The testimony of the victim of sexual assault is vital and
unless there are compelling reasons which necessitate looking for corroboration
of her statement, the court should find no difficulty in acting on the testimony
of a victim of sex crime alone to convict an accused where her testimony
inspires confidence and is found to be reliable.

One must remain alive to the fact that in a case of rape no
self respecting woman especially a college girl would come forward in a court
just to make a humiliating statement against her honour and dignity such as
involved in the commission of rape upon her. The court must not cling to fossil
formula and insist a corroborative testimony, even if, taken as a whole the
case spoken to by victims of sex crimes strikes a judicial mind as probable
Judicial response to Human Rights cannot be blunted by legal bigotry. Al-Amin and 5 others vs State 51 DLR 154.

 

 

EVIDENCE
ACT, 1872 (I OF 1872)

 

Section—31

This
section deals with the effect of admissions with regard to their
conclusiveness. It means that admissions are not conclusive proof of the
matters admitted and the party is at liberty to prove that these were made
under mistake of law or fact or that these were untrue or were made under
threat, inducement or fraud.

Sonali Bank
Vs. Mr. Hare Krishna Das and other, 16 BLD (HCD) 159.

Section—33

Market Value
of the Vessel

The
market value of the vessel of the plaintiff was determined by the Admiralty
Judge on the basis of Ext. 25 series which is the deposition of seven witnesses
(employees of the plaintiffs vessel) who appeared before the Magistrate, 1st
Class, Marine Court, Dhaka. It is unfortunate that deposition of those persons
who deposed in a criminal proceeding before the Marine Court was relied upon by
the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was
not between the same parties. As a matter of fact, Ext. 25 series is not
admissible in this admiralty proceeding and Ext. 25 series cannot be legally
accepted as the basis for determining the market value of the vessel and
consequently the passing of the decree of Tk. 80,10,000/- is without any legal
evidence and the same cannot be awarded infavour of the plaintiff as has been
done by the learned Admiralty Judge.

Bangladesh
Inland Water Transport Corporation Vs Al-Falah Shipping Lines Ltd. and others,
17 BLD (AD) 136.

 

Section—44

Any
party to the suit or any proceeding may challenge the judgment or order passed
by a Court on the ground of want of jurisdiction or on the ground of fraud and
collusion. The party seeking to establish fraud must make specific allegations
as to the nature of the fraud and must prove fraud by cogent evidence, In fine,
fraud must be specifically pleaded and proved.

Osman Gani
Talukder alias Sujat Ali Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD)165.

Sections—45, 47, 67 and 73

The
proof of genuineness of a document is of the authorship of the document and is
proof of a fact like that of any other fact. The opinion of handwriting expect
should be received with great caution and it is unsafe to base a decision
purely on experts opinion without sufficient corroboration.

In
the instant case, taking opinion of the handwriting expert on comparing the
siquantive and thumb impressions of the plaintiffs in Court on their physical
appearance is not necessary. Plaint or written statement after it has been
filed in court and registered becomes a public document and thus the court is
competent to form its opinion on a comparison of the handwritings and
signatures appearing on the materials on record with the signatures appearing
on the disputed solenama.

Sreemati
Hajari Roy and others v. Arun Kumar Singha and others, 22 BLD (HCD) 169.

Ref:
Gura Meah Shah and others v. Zahir Ahmed and others, 4BLD225.

 

Sections—45
and 73

Comparison
of disputed signature /LTI cannot be done by the expert with the said
registered document which is not admitted or proved to the satisfaction of the
Court.

Dinesh
Chandra Deb Vs Dulal Chandra Karmaker & others, 21BLD (HCD) 461.

Ref:
State (Delhi Administration) Vs. Pali Ram, A1R1979(SC)14; Krushna Chandra Vs. Commissioner
of Endowment, A1R1976 Orissa 52; Sreemuthy Sarojini Dassi Vs. Han Das Ghose, 26
CWN 113—cited

 

Section—59

The
Court has a right to believe or disbelieve a witness or a number of witnesses
on assigning reasons but it has no right to ignore the evidence of 1he
witnesses examined by the contending parties, irrespective of value that it may
carry. In the instant case the Courts below evidently erred in law in decreeing
the suit for permanent injunction without discussing and considering any
evidence of the 10 witnesses examined by the contending parties proving the
possession of the opposite parties.

Satish
Chandra Barua Vs Samir Kanti Barua and others, 19 BLD (HCD) 608.

 

Section—63 Secondary
evidence

The
production of the certified copy of a sale- deed does not by itself warrant the
presumption of due execution of the original document. A party producing the
secondary evidence of a document is not relieved of the duty of proving the
execution of the original. Even in a case where a document has been exhibited
without objection the Court is to be satisfied as to the execution of the
document.

Soya Rani
Guha alias Soya Rani Gupta Vs. Abdul Awal Mia and others, 14 BLD (AD) 257.

 

Section—65

Secondary
evidence is not admissible in evidence unless there is proof of execution of
the original and its subsequent loss or destruction. In the case of a
Hiba-bil–Ewaj deed, actual delivery of possession is not necessary, payment of
consideration to the donor and the bonafide intention of the donor to divest
himself in present of the property are enough for a valid transfer under the
deed of Hibabil-Ewaj.

Abdur Razzak
Vs. Ahila Khatun & Ors, 13 BLD (HCD) 610.

Ref:
Meherchand Banu Vs. Salimullaha & others, 22 DLR (HC) 316, 6 DLR (P.C)
598-cited.

 

Section—73

Section
73 of the Act clearly empowers the Court to itself examine the disputed
signatures to form its own opinion thereon, independent of the opinion of the
hand-writing expert. The Court is never bound to obtain the opinion of a hand
writing expert nor is such opinion binding upon it.

Moreover,
the art of calligraphy is yet to attain any decree of accuracy and precision so
that the Court can place explicit reliance on it.

Sree Naru
Gopal Roy Vs Parimal Rani Roy and others, 21 BLD (HCD) 282.

 

Section—73

Comparison
of signature or writing by the Court

Under
Section 73 of the Evidence Act the Court is the final expert with authority to
compare itself any disputed signature or writing or thumb impression to come to
its own conclusion without referring the matter to an expert. The Court being
the final authority to decide the matter can override or disregard the opinion
of a Hand-Writing Expert.

Hachina
Begum Vs. Mosammat Mahfuza Akhter, 16 BLD (HCD) 374.

 

Section—73

While
it is competent on the part of a Judge to compare disputed signatures or wt
ings with admitted signatures or writings for himself it is usually unsafe to
rely entirely on such comparison without expert advice or scientific
examination.

Sree Pratik
Bandhu Roy Vs. Sree Alok Bandhu Roy, 16 BLD (HCD) 445.

Ref:
AIR 1962 (Andra) 178; AIR 1928 (PC)277; AIR 1961 (Cal) 491—Cited.

 

Sections—91
and 92

When
a disputed deed is evidently an out and out Sale deed, Sections 91 and 92 of
the Evidence Act stand as bar against interpretation it as a deed of gift. Oral
evidence cannot alter or change the contents of the document.

Mosammat
Saleha Bibi V. Taib Ali Mollah and others, 13 BLD (HCD) 677.

Sections —91
and 92

Exclusion of
oral evidence

It
is settled by consistent judicial pronouncements that oral evidence is
inadmissible for the purpose either of construing the terms of a document or of
ascertaining the Intention of the parties thereto. Thus no oral evidence to
transform a nadabi-patra deed into a deed of gift is admissible.

Khorshed Ali
Bhuiyan Vs. Gsjan Ali, 17 BLD (HCD) 470.

 

Sections—91
and 92

No
oral or extraneous evidence to contradict or vary the terms of the contents of
the document is admissible under section 92 of the Evidence Act. It is thus
clear that the written terms of a contract cannot be altered or varied by oral
evidence.

Md. Serajul
Islam Vs. Sree Binoy Bhusan Chakraborty and others, 15 BLD (HCD) 241.

 

Sections—91
and 92

Oral
Evidence barred under all circumstances?

For
proving his plea that the disputed sale deed under preemption was, in fact, a
deed of release the pre-emptee is not debarred from adducing oral evidence to
prove the real nature of the transaction. Under the circumstances, sections 91
and 92 of the Evidence Act do not stand in the way.

Abul Hashem
Vs Sheikh Ahmed and another, 17 BLD (HCD) 385.

Ref:
39 DLR(AD)78; 44DLR(AD)270; 3 BLD(AD) 105; 43DLR 429; 35 DLR(AD) 334; PLD 1960
(Lahore) 231; 12 DLR 149; 19 DLR 17 and 654; 8BLD33; 6BLD88; AIR 1950(SC)15;
AIR 1958(SC)448; AIR 1955 (Bombay) 320; 3BLD (AD) 105; PLD 1960 (1.,ahore)231;
A1R1936(PC) 70; AIR 1931 (Orissa)177; DLR 1958 (SC) 448; AIR 1962 (Madras) 360;
AIR 1958(SC) 50; AIR 1938(Nagpur) 335; 95 Indian Cases 512; 37 DLR87—Cited.

 

Section—92

Section
92 of the Evidence Act does not preclude the admissibility of extrinsic
evidence to show that the three disputed documents purported to be separate
sale deeds are in reality part and parcel of the same transaction and are deeds
of exchange.

Patan Khan
and others Vs. Amud Ali Sheikh and others, 14 BLD (HCD) 461.

Ref: Ismail
Shah Vs. Saleh Muhammad Shah A.I.R. 1925 (Lahore) 326; Ram Badan Lal and others
Vs. Kunwar Singh and others, A.I.R. 1938 (AII)229; Randhir Singh and another
Vs. Randhir Singh and others; A.I.R. 1937 (All) 665; Prabhu Dayal and another
Vs. Shadi Ram and another, A.I.R. 1919 (Lahore) 246; Kishen Lal Vs. Ram Lal and
others; A.I.R. 1927 (All) 696; Hanif-un-nisa Vs. Faiz-un-nisa, I.L.R. 33 (All)
340 = It IC.398-Cited.

 

Section— 92
Proviso (2)

Although
under Section 92 of the Evidence Act oral evidence is inadmissible for the
purpose of contradicting, varying, adding to, or subtracting from the terms of
a written contract, Proviso (2) to Section 92 provides that the existence of
any separate oral agreement as to any matter, on which the document is silent
and which is not inconsistent with its term, may be proved.

Tafzal Ahmed
Contractor Vs. Abdur Rahim and others  16
BLD (AD) 160.

Ref: Mohammad
Ahmed Saeed Khan Vs. Kishori Lal, A.I.R. 1932 (Allahabad) 375; Kamala Sahai Vs.
Babu Naridan Mian, 11CLJ 39; LalaBihari Lal Vs. Abdul Aziz, 119 I.C. 92;—Cited.

 

Section—95

Section
95 of the Act provides that when language used in a document is plain in
itself, but is unmeaning in reference to existing facts, evidence may be given
to show that it was used in a peculiar sense.

In
the instant case the transaction vide registered sale deed dated 14.7.1978 was
absolutely a malafide one in order to deprive and defraud the
defendant-petitioner. So, the person committed fraud should not be allowed to
enjoy the fruits of his own fraud and as such the plaintiffs had not acquired
any right and title in the suit property out of a fraudulent transaction by a
deed of sale.

Md. Abdur
Rahman Mia Vs. Md. Saber Au Mia, 19 BLD (HCD) 342.

Ref:
57 I.C. page 569; 84 I.C.137—Cited

 

Section—103

When
the plaintiff fails to prove the execution of his bainapatra by the defendant
by examining the scribe and other independent attesting witnesses and fails to
prove that he was put to physical possession of the suit land in pursuance of
the agreement for sale, the execution of the bainapatra cannot be said to have
been duly proved. Under such circumstances he is not entitled to get a decree
for specific performance of the contract.

Kartick
Chandra Das Vs. Md. Abul Hossain Bhuiyan and another, 14 BLD (HCD) 585.

 

Section—103

Burden of
proof as to particular fact

A
statement in the plaint or in the written statement is no evidence in the eye
of law unless it is proved by examining a witness on oath. In the instant suit the
defendant claimed that the original owners had left this country before 1965
and the suit property became enemy property by operation of law. The onus was
upon the defendant to prove that fact either by examining any witness or by
producing any reliable documentary evidence establishing that the real owners
had left this country before 1965.

In
the absence of such evidence the property in question cannot be treated as
enemy property or vested property.

Sreejukta
Haladhar Karmakar Vs. Bangladesh, 16 BLD (HCD) 519.

 

Section—106

Burden of
proving fact especially within the knowledge of any person—Alibi in a
quasi-criminal proceeding

Even
in a quasi-criminal proceeding if a plea of alibi is taken the burden to prove
it is on the person who takes such a plea, because that fact is within his
special knowledge. The petitioner had opportunities to prove his absence from
the country since 1982 at the trial Court, the lower appellate Court and the
High Court Division but he did not avail of the opportunities. Even before the
Appellate Division the petitioner failed to produce any proof in support of his
plea of alibi. Under such cir cumstances the petition merits no consideration.

Md. Abdul
Tahid alias Tahid ulla V. M Kadaris Ali and ors., 16 BLD (HCD) 248.

 

Section—114(g)

Non-Production
of the requisition slip by the prosecution leads to an adverse presumption
against it under section 114 (g) of the Evidence Act that if the slip was
produced it would show that the Director himself obtained the blank Accession
Register and, thereafter, ‘gave the same to Accused Respondent No.2 for
preparation of a neo Register

Expunction
of observations—In the facts and circumstances of the case and evidence on
record, the observations made by the learned Special Judge against the informant
in the judgment under appeal are, in no way, unjustified, the same call for no
interference.

The
Solicitor, Government of Bangladesh. Vs. Feroz Mahmud and another, 14 BLD (HCD)
160.

 

Section—114(g)

Wireless
Telegraphy Act, 1933, Section—5

When
an action is taken or decision is taken by maintaining a file, that file must
be produced before the court to show that the act was done properly. In the
instant case, the relevant file has been withheld. Hence, presumption under
section 114(g) of the Act shall apply. Inspite of repeated orders, the file was
not produced by the respondents with whom those were lying. In such
circumstances, the Court is constrained to draws an adverse presumption under
section 114(g) of the Act.

Chowdhury
Mohmood Hossain v. Bangladesh and others, 22 BLD (HCD) 459.

 

Section—115

Estoppel

When
on his own volition, the Respondent induced the Appellate to allow him to
retire from service, which is akin to and in substance an order of release, the
Respondent now cannot be allowed to say that his order of release is illegal.
He cannot be allowed to play fast and loose, to blow hot and cold, to approbate
and reprobate to the detriment of his opponent.

Bangladesh
Parjatan Corporation, represented by its Chairman and others Vs. Mr. Mofizur
Rahman and another, 14 BLD (AD) 61.

 

Section—115

Estoppel

To
bring a case within the scope of estoppel as defined in section 115 of the
Evidence Act, the person claiming the benefit must show that he was not aware
of the true state of things. If he had the means of knowledge about the real
state of affairs, estoppel will not operate.

Sarafat
Hossain Vs. Dr. Islam Uddin, 14 BLD (HCD) 253.

 

Section—115

State
Acquisition and Tenancy Act, 1950, Section—96

In
the absence of conclusive evidence of waiver to operate against him, the
pre-emptor cannot be estopped from exercising his right of preemption.

Md. Ajmat
Ali Vs. Jamaluddin and others, 14 BLD (HCD) 563.

Ref:
Akhlasur Rahman and others Vs. Shafur-ullah and ors, 14 BLD(AD)20—Cited.

 

Section—115

Estoppel

A
party cannot blow hot and cold in his stand before a Court of law. He is not
entitled to approbate and reprobate in the same breadth. After having
participated in the election and being defeated, the defendant cannot disturb
the functioning of the elected manager without getting the election of the
latter declared illegal by a competent Court.

Anwar
Hossain Vs. Abdul Gafur and others, 14 BLD (HCD) 260.

Ref:
42 DLR 498; 5 B.C.R. (AD) 85; 35 DLR(AD) 182; 10 BLD 17; (1947) A.C. 46 (PC)
56; (1940) A.C. 412; (1940) All. E.R. 425; Halsbury’s Laws of England, 3rd
Edition, Vol. 15 Pagel68; 5BLD(AD) 54-Cited

 

Section—115

Plaintiff
having proved the contract, payment of full consideration and delivery of
possession in part performance of the contract, the Railways or the Government
is estopped from challenging the validity of the contract concluded with the
plaintiff.

Pronab Kumar
Chakraborty and Others Vs. The Govt. of the Peoples Republic of Bangladesh and
others, 14 BLD (HCD) 2.

 

Section—115

Bangladesh
Service Rules, Rule—9

Admittedly,
the plaintiff was granted LPR on 31 May, 1990, but he gave representation to
the Government for reconsideration of his age which was rejected on 30 August,
1990. Thereupon the plaintiff received all his dues upon retirement in
September 1991. It is after that he brought the suit on 2 October 1991
challenging the memo dated 23 December 1989. These facts clearly show that the
plaintiff had acquiesced in the decision taken by the Corporation about the
date of his retirement and waived his claim for extension of service. Rule 9 of
the Service Rules sets a bar to a change of the date of birth of the incumbent
as recorded at the time of appointment.

Bangladesh
Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan being dead his
heirs: Bali Begum and others, 19 BLD (AD) 106.

Ref:
36 DLR (AD)69: BCR1984(AD) 51; 1990(3) SCC 685(705) and (1972) AC1027— Cited.

 

Section—1 15

Transfer of
Property Act, 1882, Section—43

In
order to find an estoppel, the representation i.e. a party’s declaration, act
or omission must be clear, definite, unambiguous and unequivocal. The real
state of things were known to both the parties namely the transferor and the
transferees of the kabala and there is no proof of erroneous misrepresentation
and as such there is hardly any scope of the operation of section 43 of
Transfer of Property Act.

Ali Akbar
Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122.

Ref:
1921 Cal. L. 3. Vol. 33 page 522; 6PLR 181, 43 DLR(AD) 87; 42 DLR 434- Cited.

 

Section—115

Estoppel

The
action of the Local Revenue Officer in accepting the plaintiff and his
successive predecessors-in-interest as tenants in respect of the suit property
under the Government is binding on the Vested Property Department and the
latter cannot claim the suit property as a vested property. The action of the
A.D.C, (Revenue), who is the local administrative head of both the revenue
department and the vested property department, allowed himself to be indulged
in oppressive litigations and this was strongly deprecated.

Additional
Deputy Commissioner (Revenue), Narayanganj Vs A.K. M.Latiful Karim and others,
17 BLD (HCD) 249.

Ref:
(1949) 1 K.B. 227—Cited.

 

Section—115

Estoppel

To
establish a case of estoppel or waiver it is essential to show that the party
alleged to have waived his right acted in such a manner as to lead the other
party to believe and act that such rights have been enforced. The essence of
the act of estoppel lies in the fact that one party by his conduct has led the
other party to alter his position. A case of estoppel has not been made out in
the instant case.

Md. Jahangir
Kabir Vs Bangladesh, 16 BLD (AD) 85.

Ref:
45 DLR 112; 42 DLR (AD) 189; A.I.R. 1984 (SC) 921; 18 DLR (SC) 354; Indian
Appeals (189 1-92) Vol. XIX, page 203; Ambur Nair V.Kelu Nair, AIR 1933(PC)l67.

 

Section—116

Estoppel of
tenant and licensee

Section
116 of the Evidence Act provides that neither a tenant/licensee nor anyone
claiming through him can deny the title of the landlord! licensor after
admitting his title at the beginning of the tenancy.

Smriti
Ranjan Das and another Vs. Bifan Behari Roy and anr, 14 BLD (HCD) 573.

Ref:
Ramdashi Paul Vs. Sarabala Dashya and others, 14DLR 810; Joykumar Datta and
others Vs Sitanath Datta, 4 DLR 401—Cited.

 

Section—138

Order
of examination of witnesses— Examination-in-chief, cross-examination and
re-examination

Section
138 of the Evidence Act provides the order in which witnesses are to be
examined, cross-examined, and, with the permission of the Court, re-examined.
After a witness is sworn or affirmed, he is first examined by the party calling
him. This is known as examination-in-chief, the object of which is to elicit
from the witness all material facts within his knowledge relating to the
party’s case. The adverse party has then the right to examine the witness and
this is called cross- examination, the object of which is two-fold: to weaken,
qualify or destroy the case of the opponent and to establish the party’s own
case by impeaching the veracity, accuracy, credibility and the general value of
the evidence given in examination-in-chief. This exercise has justly been
described by the jurists as one of the principal and most efficacious tests for
deciphering the truth.

Where
there is no ambiguity or there is nothing to explain in the statement of a witness,
the prayer for re-examination with the sole object of giving a chance to the
witness to undo the effect of cross-examination is not contemplated in law.

Ihteshamur
Rahman Vs. Most. Masuda Khatun and others, 18 BLD (HCD) 134.

 

 

Evidence
Act, 1872

 

Section 8 –Ascension by itself is not an evidence of
guilt of an accused

Code of Criminal Procedure, 1898

Section 164 – Confessional statement of accused recorded
after being produced from prolonged police custody held inadmissible as being not true and voluntary

Penal Code, 1860

Section 396 – Offence of dacoity – Ingredients
constituting the offence must be present.

In the instant case the 8(eight)
condemned prisoners were sentenced to death by the trial court. In the FIR
3(three) accused are named. The learned judge of the High Court Division held
the confessional statement of accused involuntary and not true by reason of
being recorded from prolonged police custody and the recognition of the dacoits
in the light of torch improbable and accordingly acquitted all the condemned
prisoners.

State Vs. Munia alias Monia and 7
others 15 MLR (2010) (HC) 266.

 

Evidence Act, 1872

Section 30 – Confessional statement of one accused cannot
be the basis of conviction of non-confessing accused without corroborative
evidence.

Law is well settled that in a joint
trial of a confessing accused and non-confessing accused for the same offence,
the confession of a co-accused may be taken into consideration against non-confessing
accused only along with for substantive evidance
for the purpose of finding him guilty of the offence.

Abdus Salam Mollah V The State 13 MLR
(2008) (AD) 268.

Evidence
Act, 1872

Section 32 – Acceptability of dying
declaration

Unless the dying declaration is made under the expectation
of imminent death, it is not admissible in evidence as to the cause of death of the deceased who died long after the occurance. When the occurrance took place in the darkness of night and there was no means of
recognition of the accused and the Witnesses contradicted on points, the High
Court Division found the convict appellant not guilty of the charge and
acquitted which the apex court affirmed having found
nothing wrong therewith.

State Vs. Md. Ruhul Amin and others 13
MLR (2008) (AD) 280.

 

Evidence Act, 1872

Section 32 – Dying declaration its acceptability

While accepting the dying declaration
to form the basis of conviction the court is bound to make scrutiny as to the
physical condition and capability of the victim to make the dying declaration. When
the recording Magistrate categorically stated that the victim could not speak
clearly and the attending doctor stated the condition of the victim was very
serious and when the victim did not
disclose to anybody else the names assailants during seven days after the
occurrence the learned judge the High Court Division held the dying declaration
doubtful. The Appellate Division concurred with the findings of the high Division and accordingly dismissed the leave
petition.

State Vs. Shahin and others 15 MLR (2010) (AD) 37.

 

Evidence Act, 1872–

Section 34 –Conviction can be based on one witness –

There is no legal bar
convicting an
accused on the basis of evidence
given by
police personnel when the same appears to be trustworthy. Again conviction can
well be based on the evidence of solitary witness if found reliable.

Bayezid Hossain @ Bijoy Vs The State
11 MLR (2006) (HC) 263.

 

Evidence Act, 1872

Section 114(g)– Non-examination of material witness and the adverse presumption
against the genuineness of the prosecution case

Convict-petitioner was convicted for
the offence under section 19(3) of the Narcotics Control Act, 1990 and
conviction and sentence were also affirmed by the Sessions judge in Appeal. The
learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any
evidence on record showing that the land wherefrom the ganja plants were
recovered actually belongs to the convict-petitioner.

Shasher Ali Vs. The State 12 MLR
(2007) (HC) 38.

 

Evidence Act, 1872

Section 114(g)– Non examination of material witness cited in
the chargesheet raises adverse presumption.
Conviction
based only on the evidence of police personnel held unsafe.

In the instant case the convict
appellants were convicted and septet iced only on the
evidence of police personnel. No independent
witnesses were examined. Moreover the evidences were contradictory. The learned
judges held the charge against the convicted
appelants not
proved beyond doubt and acquitted them.

Uzzal and Golarn Rasul alias Mamun Vs.
The State 15 MLR (2010) (HC) 311.

 

Evidence Act, 1872

Section 114(g)– Adverse presumption for non-examination of
material witness

Onus of proving the charge against the accused beyond all reasonable doubt entirely
lies upon the prosecution. Non-examination of material witness without
satisfactory explanation raises adverse presumption against the prosecution
case resulting in the acquittal of the convict-appellant on benefit of doubt.

Linckon Dewan @ Dewan Nurul Huda Vs.
The State 11 MLR (2006) (HC) 432.

 

Evidence Act, 1872

Section 118–Child witness is competent when found capable
of proper understanding.

Telephonic conversation recorded
leading to the arrest of the accused and recovery of the victim supported by
ocular evidence can well form the basis of conviction. The conviction and
sentence based on consistent and reliable evidence on record to the exclusion
of any reasonable doubt affirmed by the High Court Division are held by the
apex court perfectly justified.

Jasimuddin and another Vs. The State
11 MLR (2006) (AD) 162.

 

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
of Cr.P.C. Abscission of an accused from immediately after the occurrence may
be a circumstance pointing at the guilt of the accused. Sentence must be
proportionate to the nature and gravity of the offence committed.

In order to secure conviction of an
accused the prosecution must prove the charge against him by consistent and
reliable evidence beyond all reasonable doubt. Evidence of a solitary eye
witness can be the basis of conviction. Confessional statement though not
binding upon other co-accused may be considered as
corroborative evidence against the other co accused and along with other
evidence can form the basis of conviction.

State Vs. Gaush Mea @ Rana (Md.) and
others 11 MLR (2006) (HC) 417.

 

 

EVIDENCE ACT, 1872 (I OF 1872)

 

Section—3

Video Cassette—Video
cassette whether is a document and whether the same is admissible in evidence —
Video Cassette is a document within the meaning of the Evidence Act and is
accordingly admissible in evidence if otherwise relevant in course of a trial
or proceeding — when sound recorded on a tape is admissible in evidence, the
record of sound and picture should equally be admissible in evidence.

Mrs. Khaleda Akhtar Vs. The State; 5BLD (HCD) 303

Ref. AIR. 1964 (SC) 72; AIR. 1968 (SC) 147; PLD l976 (SC) 57
(69) Cited,Section—8

 

Non-payment of rent
whether relevant —Non-payment of rent alone will not extinguish or disprove
a tenancy but when it is a question of the very existence of the status of a
tenant, payment of rent would be relevant as the subsequent of the parties
concerned.

Sahabuddin Vs. Saluddin Talukder and others; 4BLD (HCD) 291

 

Section—13

Relevance of previous
judgment — When a judgment, though not inter parties, may be admissible —
Ordinarily a judgment cannot be used as evidence against a person who is a
stranger thereto — But the judgment in a prior suit together with the plaint
and other steps taken in connection therewith is evidence of an assertion by
the holder of the judgment of the right which he claims to acquire and is then
admissible in evidence of his right.

Hazi Waziullah alias Waziullah Miah and others Vs. The Additional
Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and
Non-Resident Property and others; 9BLD (AD)135

Ref. 21 DLR(SC)94; 2 C.W.N. 501; 58 Indian Appeals 125;
A.I.R.1937(PC)69— Cited.

 

Section—7

Admission— Value of
admission made in the plaint of a previous suit which was withdrawn — In our
law of evidence an admission made by a party in a plaint is admissible as
evidence against him in other actions as well but such admission cannot be
regarded as conclusive proof and it is open to the party to show that it is
untrue.

Abdul Kader Khan being dead his heirs All Akbar Khan and others Vs.
Basek Khan being dead his heirs Shaju Bia and others; 8BLD(AD)22

Ref. A.I.R. 1967 (SC) 341; AiR. 1968 (Cal)550; (1952) 1 Macq
212: 8DLR3I I Cited.

 

Section—20

Admission between the
parties made in another proceeding — Such admission whether binds a party
in a subsequent proceeding – Respondent’s admission that he was a tenant under
the appellant estops him from denying appellant’s title in the suit premises —
Admission by way of statements made in documents certified to be true copies by
an authorised officer of the Government are admissible in evidence.

Hajee Abdus Sattar Vs. Mahiuddin and others; 6BLD (AD) 224

 

Section—21

Admissibility of
previous statement

A party’s previous statement regarding a fact in issue is
relevant and can be used against him if he has not appeared in the witness box
at all — Even if the party appearing in the witness box is not confronted with
his contrary previous admission, his such previous admission, if duly proved is
admissible.

Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183

Ref: A.I.R. 1946 (Lah) 65 (PB); AIR. l957(AIl) 1(FB); AIR.
1966(SC)402 — Cited.

 

Section—23

Admission made by a
party in a letter written “without prejudice” — Admissibility of — The
letter written by the appellant cannot be used to determine the extent of its
liability, but in so far as it shows the relationship between the appellant and
the respondent No. I as debtor and creditor and that they tried to settle the
account, the letter can be taken into consideration.

M/s. Haque Brothers
(Carbide) Ltd. Vs. Bangladesh Shilpa Rin Sangstha and others; 5BLD (AD) 102

Ref. (1967) 72 C.W.N. 1 — Cited.Section—35

 

Entry in School
Register — Its admissibility in evidence — Entry in School Register, Admit
Cards and Board’s Certificate is that such Registers, Cards and Certificates
are public documents, and are admissible in evidence, but the evidentiary value
to be attached to the entries will vary from case to case.

Abul Hashem (Bulbul) Vs. Mobarakuddin Mahmud; 6BLD (HD) 25O

Ref. I.L.R. 14 (Lahore) 473; A.I.R. 1965 (SC)282 — Cited.

 

Section—43

 

Findings of the Criminal
Court are not binding on the Civil Courts — An order under section 145 Cr.
P.C. cannot be treated as substantive evidence of possession — A judgment of
acquittal in a criminal case only decides that the accused has not been found
guilty of the offence with which he had been charged but the opinion and the
conclusion expressed in the judgment are not admissible in evidence in civil
Courts.

Akhtar Hossain Sharif and others Vs. Munshi Akkas Flossain and others;
3BLD (AD)334

 

Section—43

Relevance of previous
judgment — When a judgment, though not inter parties, may be admissible —
Ordinarily a judgment cannot be used as evidence against a person who is a
stranger thereto — But the judgment in a prior suit together with the
plaint-and other steps taken in connection there with is evidence of an
assertion by the holder of the judgment of the right which he claims to acquire
and is then admissible in evidence of his right.

Hazi Waziullah alias Waziullah Miah and others Vs. The Additional
Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and
Non-Resident Property and others; 9BLD(AD)135

Ref.2IDLR (SC) 94; 2 C.W.N 501; 58 Indian Appeals 125: A.I.R.
1937(PC)69 — Cited.

 

 

Section—43

Findings in the
judgment of a criminal case — Whether can be relied upon in a subsequent
civil suit between the parties — The findings and decision in a criminal case
relating to the subject matter of the suit Scan n be relied upon — the fact
that the accused was acquitted in a criminal case can be relied but not the
opinion or conclusion expressed in such judgment.

Md. Arshad Ali Vs. Abed Ali and other, 4BLD (HCD)150

 

Section—44

Benamdar — Whether
a decree against a benamdar is binding on the real owner — Whether real owner
can agitate in another suit that the decree obtained against his benamdar was
fraudulent and not binding on him — It is now a settled principle of law that a
decree on the ostensible owner is binding on the real owner — The plaintiff
obtained the decree against the benandar fraudulently knowing full well that
the real owner defendant was in possession — When a decree is obtained by the
plaintiff practicing fraud it is not necessary to file a separate suit for
avoiding such decree but the said decree can be impugned in another suit by
such person aggrieved by such fraudulent decree — The real owner can avoid the
transfer by his benamdar provided that no reasonable care was taken by the
transferee in getting the transfer from the Benamdar — Transfer of property Act
(IV of 1882) S.41. –

Sultan Ahmed Vs. Md. Waziullah and others; 7BLD(HCD,)235

Ref. 24 DLR 63 — Cited.

 

Section—44

Plea of Fraud—Under
section 44 of the Evidence Act, whether it is competent for a party to a suit
or proceeding to show that a docunient or a decree proved against him was obtained
by fraud without having it set aside.

Under section 44 of the Evidence Act it is competent for a
party to a suit or other pro-ceeding to show in it that a document or a decree
which has been proved against him by his adversary in that suit was obtained by
fraud without having it set aside — When subsisting judgment, order or decree
is set up by one party as a bar to the claim of the other, the latter can show
that the judgment, order or decree was delivered by a Court without
jurisdiction or was obtained by fraud, collusion and it is not necessary for
him to have it previously set aside by a separate suit — A party to a
proceeding is never disabled from showing that a document has been obtained by
the adverse party by resorting to fraud.

Abdul Gani Khan Vs.
Shamser Ali and others; 12BLD (HCD) 90

 

Section—45

Expert’s opinion —
Value of — Opinion of an expert, such as a hand-writing expert, is only a
relevant fact — The Court will certainly consider the expert’s opinion but it
is the Court which alone will come to its own conclusion regarding the matter —
An expert’s opinion, particularly that of a handwriting expert, is always
received with great caution.

Ekias Khan and others Vs. Prajesh Chandra Das and others, 7BLD (AD) 142

 

Section—45

Assessment or evaluation
of the evidence of hand writing expert — Requirements of law as to
plaintiff’s obligation to prove his own case — Court to come to findings on
assessment of the materials on record.

Evidence of an expert
witness is of very weak nature — The evidence and the opinion of the expert
deserves consideration like any other evidence but such evidence has to be
received with great caution — In assessing or evaluating the evidence of a
handwriting expert on the question of genuineness of a signature, the following
facts must be kept in view : (1) very few people sign in the same manner on all
occasions. (2) expert opinion of the genuineness of the signature should be
received with great caution, especially in a case when there is positive
evidence of persons who saw a person sign. (3) all the test evidence by the
expert in the matter of comparison of hand writing and signature is merely
tentative in character. (4) Opinion is weak evidence.

(ii) Law requires that the plaintiff must prove his own case
to the hilt by cogent and sufficient evidence—He cannot succeed merely on the
weakness of the defence — Disbelief of the defence case ipso facto does not
make the plaintiff’s case believable.

(iii) The Court is required to come to a finding on assessment
of the evidence on record that the plaintiff has been able to prove his case —
The plaintiff must prove his case with sufficient evidence to obtain even an expaite
decree in his favour.

Sheikh Salimuddin Vs. Ataur Raharnn and others; 11BLD (HCD)386

Ref. 7 BLD (AD)142; IODLR(PC)l; 25 DLR(SC)90; 3 BLD(AD)225 —
Cited.

 

 

Sections—45, 47, 67 and
73

Mode of proof of
hand-writing or signature—It is well-known that the Evidence Act has
provided for the following 4 modes for proving hand-writing or signature of a
person in any document namely:

(1.) By proof of the signature or handwriting of the person
alleged to have signed or written the document by evidence vide section 67 of
the Evidence Act.

(2.) By the opinion of an expert who can examine and compare
the handwriting or signature in a scientific process vide section 45 as the
Evidence Act.

(3.) By a witness who is acquainted with the handwriting or
signature of the person by whom the same is supposed to be written and signed,
vide section 47 of the Evidence Act.

(4.) Also by comparison of the signature or handwriting of the
person with his other admitted and proved handwriting on signature by the Court
it self vide section 73 of the Act.

In the instant case when it is the duty of the plaintiffs to
prove the identity and genuineness of the signature of the petitioner in
thealleged document, the plaintiffs may avail of any of the methods as
enumerated above — He or they cannot be forced by the defendants to resort to
any particular method of proving the alleged signature.

Shree Dulal Benerfee alias Moni Vs. Shree Sharat Chandra Pal and
another; 12BLD (HCD) 277

 

Sections—56, 78(6) and
85

Power of attorney
authentic in foreign city—Power of attorney executed and authenticated by a
Magistrate or Notary Public in a foreign country—Whether could be acted upon as
a valid document in Bangladesh.

If a notarial act is done in a foreign country by a foreign
notary and there is reciprocal arrangement between Bangladesh and that foreign
country, then by reference to section 14 of Notaries Ordinance and section 33of
the Registration Act, those Notarial acts will be valid and the power of
attorney admissible in Bangladesh.

Nurunizessa and others Vs. Babar Ali Bepari and others; 1BLD (AD) 86

 

Section—64

Admissibility of
newspaper report — Probative nature of such report — Although a newspaper
is admissible in evidence without formal proof, yet the paper ipso facto is no
proof of its contents — The newspaper cannot be treated as proof of the facts.

Nurul Islam and others Vs. The State, 7BLD (HCD) 193

Ref. A.I.R. 1925 (Lahore) 299: A.I.R. 1961 (Pun) 215; AIR.
1951(SC)1376 — Cited.

 

Section—57

Judicial Notice of a
period of general dislocation — Momentous changes took place when Benches
of the High Court Division were established outside the capital — the cases
arising from Barisal were initially sent to the Jessore Bench and then after
the establishment of the Barisal Bench, to Barisal — It was a period of general
dislocation of which judicial notice should be taken.

Mvi. Md. Keramat Ali and another Vs. Syed Munsur Ali and others;
11BLDAD97

 

Sections—64 and 65

Best evidence — The
rule of evidence is that the best evidence which the case in its nature is
susceptible should always be given — Primary evidence is the best evidence as
it is that kind of proof which in the eye of law affords the greatest certainty
of facts in question — Unless it is shown that the production of this evidence
is out of the party’s power, no other proof of fact is generally admitted —
Overall testimony to prove shortage of stay and stationery is inadmissible in
evidence when documentary evidence to prove the same was available and
purposely withheld.

S.K. Abdul Majid Vs. The State; 7BLD (HCD) 413

 

Sections—65 and 66

Admissibility of
certified copy of an application — Original called for from the custody of
the person granting the copy bi the original not produced — In view of clauses
(a) (c) of sections 65 and 66 of the Evidence Act the certified copy of the
application is admissible in evidence.

Indus Ali and others
Vs. Abdul Jabbar Mia, 3BLD (HCD) 258

 

Section—65

Secondary evidence
— Question of admissibility without formal proof — Though no objection was
raised when the secondary evidence in the Photostat copy was produced, the
party producing it was not exempt from explaining why its original was not
produced

— If the original is not available, the reason for
non-availability must be given.

Hazi Waziullah and
others Vs. Additionial Deputy Commissionier, Noakhali and others; 9BLD (AD)135

Ref. 20 DLR (SC)205; — Cited.

 

Section—65

Award in respect of a
property — When cannot be considered — The original of the alleged award
having not been filed in the Court the true copy of the alleged award cannot be
considered.

Chan Jun Talukder and another Vs. Ching Neshazy Magni and others, 9BLD
(HCD)10

 

Sections—67 and 68

Presumption of
genuineness of a registered kabala — In the absence of proof of its due
execution a registered kabala by itself does not raise any presumption of its
genuineness.

Abdul Malek Sarkar Vs.
Govt. of Bangladesh; 3BLD(HCD)1 70

 

Sections—67 and 68

Execution and
attestation of a will — I-low is to be proved — Due execution of a will
means not only that the testator executed it by putting his signature or
affixing his mark but also it requires that the testator executed it in sound
mind, fully knowing the nature and effect of his action — It must be proved
that the testator had the testamentary capacity’ at the time he put his
signature or thumb impression on the Will — The requirements of sections 67 and
68 of the Evidence Act must be fulfilled.

Paresh Chandra Bhowmik Vs. Hiralal Nath and another, 4BLD (AD) 199

 

Sections—67 and 68

Proof of execution of a
document — Whether Registrar’s endorsement is conclusive proof of execution
— The certificate of a Registrar although raises a presumption as to the
admission of execution by the executant yet such admission cannot be the
evidence of due execution against third persons — The execution of a document
is required to be proved in the manner provided by sections 67 and 68 of the
Evidence Act.

Abani Mohan Saha Vs. Assistant Custodian Vested Property and others;
7BLD (AD) 306

 

Section—73

Comparison of
handwriting and signature by the Court — Court’s power to examine disputed
signature is not restricted but the power should be exercised with great
caution as an arbitrary exercise of the power may lead to miscarriage of
justice Only in appropriate cases the Court may exercise its enabling power
where the Court finds that the exercise of this power is necessary in the interest
of justice.

Syed Nurul Flossain and another Vs. Salema Khatun & another;
1BLD(HCD)474

Ref. 10 DLR 129; 49 C.W.N. 481; 26 C.W.N. 113; 64 C.W.N.
1067—Cited.

 

Section—73

Comparison of
handwriting by Court—Whether conclusion arrived at by comparison of hand
writing or signature by the Courts below can be interfered with by the High
Court Division in Second Appeal — Comparison of signature with admitted
signature is a question of fact — High Court Division is not to interfere with
the conclusion of the First Appellate Court on such question — Comparison of
signature is a perfectly legal mode of proving hand-writing and, however
inconclusive such proof may be, it cannot be considered as an error of law to
base a conclusion on such proof alone — High Court in second appeal is not
competent to set aside a finding based on such method — Code of Civil
Procedure, l908(V of 1908) S. 100 (repealed).

Abdul Matin Chowdhary Vs. Chapala Rani Sen and others; 5BLD (AD) 172

 

Section—73

Expert’s opinion—Whether
it is better to have and come to a decision, particularly in case of L.T.L

It is true that the Court itself can compare any signature or
L.T.1. of any concerned person himself under section 73 of the Evidence Act and come to a decision, but it is
better to have an expert’s opinion also, particularly in case of L.T.1.

Sk. Abul Qasem and
others Vs. Mayez liddin Mondal and others; 12BLD (HD) 161

Ref. 28 D.L.R. 123; A.I.R. 1928(P.C.)277 —CitedSection—74

 

Comparison of signature
or hand writing — Whether- Court should compare the disputed signature with
the admitted signature to come to a decision — reliance by the lower appellate
Court on his own comparison of the disputed signatures disregarding and in
preference to the positive evidence by an expert is highly unsatisfactory,
dangerous and imprudent in a judgment of reversal and such judgment without
proper reasons results in an error in the decision on merits occasioning a
failure of justice — Code of Civil Procedure, 1908 (V of 1908), S. 115.

SK. Anseruddin and others Vs. Usha Raid Ghose; 6BLD (HCD) 26

Ref. A.I.R. I 928(PC)277; A.I.R. I 954(SC) 320; A.I.R. 1979
(SC) 14; 5BLD (AD) 172 —Cited.

 

Section—74

Whether plaint of a
suit is a public document — Whether certified copy of the plaint is
admissible in evidence — The plaint of a suit as soon as it is registered by a
judicial officer within the meaning of clause (iii) of sub-section (1) of
section 74 of the Evidence Act and as soon as it forms part of the record of
the judicial officer it is a public document. Certified copy of such document
is therefore admissible in evidence.

Reazuddin and another Vs. Azimuddin and others; 7BLD (HCD)16

Ref. 19 DLR349; PLD I 967(Lahore) 1051; A.I.R. 1940 (Mad)768;
36 DLR(AD)248; 27 DLR 398: 29 DLR(SC)268; 92 IC. 184 — Cited. V

 

Section—85

Authentication of power
of attorney — A power of attorney duly authenticated raises the presumption
that it was duly executed by the donor who has signed the instrument — The
presumption unless rebutted, stands and the document can be admitted in evidence
as a document executed by the persons alleged to have executed it, without any
further proof — The defendant having failed to rebut the presumption
plaintiff’s case stands.

Md. Arshad Ali Vs. Abed Ali and others 4BLD(HCD)150

Ref. 30 DLR(SC)99; A.I.R. 1930 (Afl 524: A.I.R. 1971 (SC) 76;
1971(I) S.C. A. 136 —Cited.

 

Section—85

Power of Attorney —
Authentication of —Whether a power attorney, is to be authenticated for authorizing
the attorney by a No-tary Public —- Whether a power of attorney duly executed and
registered by the Si* Registrar can be used as a valid document Whether written
statement filed by the attorney of the defendant on the strength of power of
attorney duly executed by the defendant and registered by the Sub-Regisia can
be accepted or the same is liable to b expunged — Section 85 of the Evidence
raises a presumption as to the execution authentication of a power of attorney
exec and authenticated by the executant and authority described in the section
itself Although the power of attorney was authenticated by the Notary Public as
request under section 85 of the Evidence Act the being duly executed and
registered under provisions of the Registration Act is a document — Section 85
does not say the duly executed and a registered power of in Bangladesh is
unacceptable and in document for reason of non-authentication Written statement
filed by the attorney of defendant on the strength of such a attorney duly
presented cannot be expunged

Monindra Mohan Kar Vs. Ran Dutta and others. 7BLD (HCD) 275

Ref. 33 DLR(AD) 124— Cited.

 

Sections—91 and 92

Evidence —Its
admissibility in a preemption case — No evidence is admissible to vary the
contents of the documents by any oral evidence — In a pre-emption case it is
the transfer which is sought to be pre-empted.

Jaynal Abedin Molla Vs.
Aliar Rahmax and others; 3BLD (AD) 105Sections—91 and 92

 

Admissibility of oral
evidence?

In a pre-emption case
sale or exchange can be decided — Whether evidence can be adduced to prove
that the document is not what it purports to be When the disputed Kabala is
between stranger to the document in question and a party thereto, there is no
bar in leading oral evidence to prove that the document in question is not what
it purports to be but when it is between the parties to the document such
evidence is not admissible — There is no error of law in holding that the
transaction is an exchange and not a sale and as such exempted from preemption
— State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96

Brindaban Das and another Vs. Ershad Ali
Mondal, 6BLD (HCD)85

Ref. 17 DLR 15; 26 DLR(SC) 59; 35 DLR(AD)230; A.I.R. 1958
(SC)448 — Cited.

 

Sections—91 and 92

Admissibility of oral
evidence — Whether a sale deed can be declared a mortgage deed solely on
oral evidence — Oral or extraneous evidence to contradict the terms of the
contents of a document is inadmissible — It is an established rule of evidence
that oral evidence is inadmissible for the purpose either of construing the
terms of a document or of ascertaining the intention of the parties thereto —
Evidence of the witnesses that the document is not a sale deed but is a
mortgage deed is clearly inadmissible.

Mrs. Feroza Majid and another Vs. Jiban Biina Corporation, represented
by its Managing Director, 7BLD(AD)124

Ref. 27 l.A. 58 — Cited.

 

Sections—91 and 92

Exclusion of oral
evidence—Admission of oral evidence of the acts and conducts of the parties
in determining the true nature of the transaction does not infringe upon the
provision of section 92 of the Evidence Act — it can be shown by oral evidence
that though a document in a particular form was executed, in fact it is
different from what it appears to be — When a docuriient is meant merely as an
informal memorandum of transaction and not as a document embodying disposition
of a property, oral evidence is not excluded.

A.M. Abul Kashim Vs. Nasiruddin Ahmed and others; 8BLD (HCD) 33

Ref. 37 DLR 87 — Cited.

 

Section—91

Kabalas under pre-emption under section 96 of the State
Acquisition and Tenancy Act — recitals in documents are of out and out sale —
no mention about any exchange or compromise.

Section 91 of the Evidence Act will not bar any challenge as
to the character of the disputed documents — But for that reason, the kabalas
in question cannot be construed as instruments of exchange, simply because the
ownership of the case land was not transferred for the ownership of any other
land — State Acquisition and Tenancy Act, 1951 (XX VIII of 1951), S. 96.

Abu Hassan (Minor) and others Vs. Basiruddin Ahmed and others; 11BLD (AD)
231, 12 BLD(AD)191

 

Section—92

Evidence — whether
it is admissible to vary the terms of a written and registered document — Oral
evidence though not admissible to vary, modify or alter the terms of a written
registered document, will however be admissible to prove that the nature and
character of the instrument is different from what it is alleged to be or that
the instrument was a mere paper transaction that it was never intended to be
given effect to or acted upon.

Mozem Par and others Vs. Fazie Karim Biswas and others; 4BLD (HCD) 173

Ref. 19 DLRI7; 38 l.A. Page-85; (1924) 51 l.A. Page-305; 38
C.W.N. Page — 883; 20 C.W.N. Page-347; 16 DLR(SC)629; PLl968(Karachi) 307;
A.LR. 1936 (PC) 61 — Cited.

 

Section—101

Onus of Proof — in a
case of disputed parentage — The onus is not on the defendant to prove the
factum of marriage — The onus was clearly upon the plaintiff to establish that
there was no marriage when the defendant proved acknowledgement in his favour —
All the Courts below in the facts of the case misplaced the onus on the
defendant for proving the marriage of Monwar Begum with Amir Ali Mia whereas
the settled principle of law is that the person who denies it will have to
establish it — it was for the plaintiff to prove that there was no marriage with
Manwara as alleged — As such the concurrent findings of fact is no finding in
the eye of law.

Khorshed A lain alias Shah Alam Vs. Amir Sultan All Hyder and another
5BLD (AD) 121

Ref. 3 M.I.A. 295; 8 M.I.A. 836 and 11 M.1.A, 94; 561.A. 201;
51 C,W.N. 98—Cited.

 

Sections—101 and 102

Onus — Onus on whom
lies in a suit for specific performance of a contract for sale of property
where the signatures in the documents regarding the contract are admitted by
the defendants pleading that the same were obtained from them by threat,
intimidation and coercion — Law does not require that all facts alleged by the
plaintiff shall be strictly proved, for burden of proof is often lightened by
presumptions, admissions and estoppels — Primarily onus, of course lies in a civil
proceeding, upon the plaintiff — In this case primary onus has been discharged
satisfactorily by the plaintiff — Then onus has shifted upon the defendants to
prove their particular fact that their signatures were extorted — This onus
they failed to prove — Consequently, the evidence adduced by the plaintiffs as
to execution of the documents stands.

Jabed Ali Mondal and others Vs. Jamini Kanta Dey and others, 7BLD (AD)
156

 

Section—101

Onus to prove parentage
— When oral evidence was inconclusive to decide the question of parentage
whether the Court can decide the same on the basis of the documents showing
dealings with the property — The onus was on the plaintiff to prove that his
father Nagar was the son of Gour Majhi — In view of the inconclusive testimony
of the witnesses as to parentage of the plaintiff, the appellate Court rightly
dismissed the suit when the documentary evidence as to the ownership, use and
mode of transfer of the impartibly property clearly indicated that the
plaintiff had at no point of time raised any claim or had any possession in the
suit property.

Sree Gopal Chandra
Mondal and another Vs. Lasman Dasi and others; 7BLD (AD) 107

 

Section—101

 

Finding of fact—Finding
of fact is ordinarily binding in a second appeal — Section 101 distinctly
prohibits second appeal on a finding of fact based on legal evidence unless in
the process of arriving at a finding of fact the Court has committed an error
of law or a substantial error of procedure.

Abdul Gaizi Khan Vs. Shainser Ali and others; 12BLD (HCD)90

 

Sections—101 and 102

Burden of proof —
The onus of proving the genuineness of the signature and the questioned
document is on the plaintiff.

Shree Dulal Benergee
alias Moni Vs. Shree Sha rat Chandra Pal and another. I2BLD (HCD) 277

 

Section—102

Onus of proof —
Onus in a suit for his on whom declaring a heba-bil-ewaz deed in favour of the
defendant was forged and without consideration.

Initial onus was upon the plaintiff — Plaintiff having
discharged that onus it shifted on to the defendant to prove that there was the
intention for making the heba-bil-ewaz and that the consideration was paid —
the onus of proving the formalities in connection with thedeed is upon the
person who upholds the transaction.

Montajur Rahman Vs.
A.K.M. Mokbul Hossain and others; 5BLD (HCD) 18

Ref. 9 DLR (1957) Page 422 — Cited.

 

Section—102

Burden of proof when
special knowledge is involved — when the petitioner gives a list of dead
persons and the opposite party does not controvert the same, the contents of
the list are not proved — It is not the opposite party who maintains officially
a list of dead voters — He does not have a special knowledge as to who are dead
voters.

Abul Hashern (Bulbul,)
Vs.Mobarak Uddin Mahmud, 6BLD(HCD)250

 

Sections—102 and 103

Burden of proof — When both parties adduced evidence in order
to set up their respective cases, the question of onus loses significance.

Chinibash Pramanik Vs. Md. Nurul Hossain Mollah, 7BLD (AD) 103

 

Section—102

Onus Probandi —
When onus is arbitrarily shifted and found not discharged — The plaintiff did
not examine any independent witness in support of its case that the food
supplied by the defendant’s canteen was not good — Trial Court arbitrarily
shifted the onus on the defendant for proving its defence plea — The plaintiff
therefore failed to bring its case home that he needed the tenanted premises
for efficient management of the canteen — Premises Rent Control Ordinance, 1963
(XX of 1963), S. l8(l)(E).

M/s. Channel Cinema Ltd.
Vs. Chowdhury Golain Malek; 10BLD (AD,)82

 

Section—103

Burden of proof —
Onus of proof that the left-out co-sharer has no subsisting right of
pre-emption is upon the pre-emptor — State Acquisition and Tenancy Act,
1950(XXVIII of 1951), S. 96(2).

Md. Abdul Jalil Vs.
Durjan Ali alias Siddique Hossain and others, IBLD(’AD,) 241

 

Section—111

Burden of proof —
Pardanashin Lady — Burden lies on the person who claims benefit under a deed
executed by a pardanashin lady to establish that the deed was executed by the
pardanashin lady after clearly understanding the nature of the transaction —
The burden lies not only on the receipient of the deed, but also upon the
transferee from the beneficiary.

Mst. Rokeya KhatunVs.
Aljan alias Aljan Bepari and others; 2BLD(4D)139

Ref. 52 l.A. 342; A.I.R. 1928 (PC) 303; A.I.R. 1940 (PC) 1,34
— Cited.

 

Section—111

Burden of proof —
Pardanashin lady — Protection given to pardanashin lady by the special rule of
onus will extend to her legal heir — If the person upon whom the property of
the pardanashin woman devolves by operation of law, and who, in the facts of
the case, represents her can challenge the legality of disposition.

Mst. Rokeya Khatun Vs.
Aljan alias Alijan Bepari and others; 2BLD (AD) 139

Ref. 33 DLR (AD) 1 — Cited. –

 

Section—111

Hiba-bil-Ewaj—Question
of absurdity of the reason for Hiba-bil-Ewaj — Special rule on onus of proof
devised to protect a pardanashin lady need not be understood to create
disability in her right to deal with her property — When the final Court of
fact is satisfied that the questioned document is beyond suspicion, no further
examination of the document is called for.

Jahura Khatun and another Vs. Md. Nurul Momen and others; 2BLD (HCD)
165Ref. 70 C.L.J. 402: A.LR. 1940 (PC) 134: 45 C.W.N. 259; 82 C.L.J.
26; 59 C.W.N. 147; 6 DLR 202; 33 DLR (AD) 1; A.I.R. 1919 (PC) 24; — Cited.

 

Section—111

Pardanashin Lady —
Discharge of special onus by the recipient of the document from a pardanashin
lady — Without making any pleading that the executant was a pardanashin lady
and she could not comprehend and understand the transaction there was no
special onus upon the recipient of the kabala to prove that the document was a
bonafide one and the executant understood and comprehended the transaction and
that she had independent advice before she executed the kabala,

Noad Chand Vs. Mst. Hjssain Banu and others; 6BLD (HCD) 173

Ref. A.I.R. 1956 (SC)593; A.LR. 1966

(SC) 635; 34 LA. 27: A.I.R. 1930(Sind) 25; 33DLR (AD) 1; 34
DLR(AD)266; A.I.R. 1930 (PC) 57; 28DLR(AD)57; A.I.R. 1920 (PC) 65 — Cited.

 

 

Section—111

Pardanashin and
illeterate lady — Execution of deed by her — Onus on whom that she had
independent and disinterested advice at the time of execution and registration
of the sale deed — Mere reading over and explaining of the contents of the deed
will not meet the requirement of law — Onus is on the vendee to prove that
independent and disinterested advice in the matter was received by her — The
party relying on a document executed by an illeterate pardanashin village woman
must satisfy the Court that not only the deed was read over and explained to
her but also to prove that she understood the contents and that she got
independent and disinterested advice in the matter.

Rangbi Bewa Vs. Md. Abed Ali and others; 7BLD(HD)319

Ref. 26 C.W.N. 517(DB).

 

Section—1 14(e)

Public Notice —
Presumption of service of such notice — Public notice for acquisition of
property being an official act a presumption is available under the Evidence
Act that it has been regularly performed unless the contrary is proved — Emergency
Requisition of Property Act (XIII of 1948), S. 5(1).

Government of Bangladesh, represented

by the Deputy Commissioizer, Dhaka and others Vs. Basharatultah being
dead his heirs and successors: Fade Karim and others; 1OBLD (AD)11O

 

Section—114

Presumption of Judicial
or official

Acts—Whether
illustration (C) of the section provides that all acts are presumed to have
been rightly and regularly done.

Illustration (C) of section 114 of the Evidence Act provides
that all acts are presumed to have been rightly and regularly done — This
presumption applies to judicial as well as to official acts — Where judicial or
official act is shown to have been done, it is presumed to have been done
rightly and regularly complying with the necessary requirements.

Md. Akhtar Hossain Vs. The Governinent of the People’s Republic of
Bangladesh and others; I2BLD (HCD,) 541

 

Section—114(e) (f)

Service of notice u/s.
106 T.P. Act — Notice sent by registered post and returned with endorsement
“refused” — Notice presumed to be served — Examination of peon to prove the
endorsement is not necessary — Mere denial of the tenant that he did not
receive the notice or that the notice was not tendered to him is not sufficient
to rebut the presumption — General Clauses Act, 1 897 (X of 1897)

Dr. Jainshed Bakht Vs.
Md. Kainaluddin, 1BLD (HCD) 97Ref. A.I,R. 191 5(Cal)3 13; 39C.W.N. 934;
51C.W.N. 650; 52 C.W.N. 659; 6 DLR267; A.I.R. 1918 (PC) 102; A.I.R. 1958 (Cal)
251; 22 DLR 664; 17 DLR(WP)26—Cited.

 

Section—114

Reserved Forest —
Whether in the absence of notification under the Assam Forest Regulation or
Forest Act nature of the forest land under the Forest Department as ‘reserved
forest’ is affected — Even assuming that the defendant Forest Department did
not acquire any title in the suit land of the forest as no subsequent
notification required under section 17 of the Assam Forest Regulation VII of

1 891 or under section 20 of the Forest Act, 1927 was issued,
even in that case, the possession of the Forest Department in the lands of the
notification Ext. A is not denied or disputed and the long possession of the
Forest Department is a fact — So under section 114(e) and (f) of the Evidence
Act there is presumption that notification under section 17 of the Assam Forest
Regulation was duly made -— Forest Department has got title and possession in
the suit land or at least a better title and prior possession than thoe of the
plaintiff—Assam Forest Regulation (VII of 1891). S. 17.

Kanglu Khasia Vs. Divisional Forest Officer and others; 7BLD(HCD)96

 

Section—1 15

Estoppel —
Plaintiff’s karsha right sold in auction — Defendants claiming kol-karsha right
setting aside the auction sale under section 174(3) of B.T. Act impleading the
plaintiff in the proceeding — Plaintiff is estopped from denying defendant’s
kol-karsha.

Sunil Kumar Biswas Vs. Mohammad Idris and others, 1BLD (AD)367

 

Section—115

Estoppel — Series
of litigation’s between the parties ultimately concluded by a compromise decree
— Defendant gave up his claim of Tk, 1000/- as a consideration of compromise —
Subsequent suit which in effect is directed against the compromise is hit by
the principle of estoppel.

Abdul Mujib Chowdhury Vs. Syed Abdul Mutalib and others; 1BLD (HCD)467

 

No estoppel against
Statute — Whether this rule of law can be invoked by one to takes advantage
of his own fraud — The rule is attracted only when its invocation will defeat
the public policy behind a Statute — If, in disregard of the obligation imposed
by section 75A upon the landlord he has alienated his land he cannot
subsequently raise an objection to nullify his own action — The plaintiff-
appellant has filed the suit certaintly not for the benefit of the Government,
nor is there any reason to suppose that the statutory provisions would be
nullified if the declaration sought for is not granted — If he is allowed to
succeed he would be enabled to take advantage of his own fraud.

Sree Sudhir Chandra Saha and another Vs. Matiran Bewa, being dead her
heirs Nazmul Rahrnan Sarker and others; 6BLD (AD) 182

Ref. A.I.R. l937 (PC)1 14; (1903)30 l.A. 114;
(l964)I6DLR(SC)685 —Cited.

 

Section—115

Right of Pre-emption
— Whether barred by acquiescence and estoppel — When the pre-emptor negotiates
the sale under pre-emption or the facts are such that his acquiescence can be
safely concluded, the doctrine of estoppel comes into full play — His conduct
will be a bar even though he files his application for pre-emption in a
statutory right — State Acquisition and Tenancy Act, 1950(XXVIII of 195
1),S.96.

Moulana Abdul Karim Vs.
Nurfahan Begum and others; 6BLD (HCD) 125

Ref. A.I.R. 1968(SC) 933; PLD 196 l(SC)436(444); 22 DLR 449;
A.I.R. 1947 (Oudh)81; A.I.R. 1951 (Nagpur) 451; AIR. 1950(Madhya Bharat)85;
A.I.R. I 925( Lahore)57; A.I.R. 1928(P.C.)190— Cited.

 

Section—115

Resignation from service
— Employee of Biman Bangladesh Air Lines resigning with immediate effect
allowed to resume his duties — Whether the employer in such a position waived
its right to continue the services of the employee — When a permanent employee,
as in the present case resigns with immediate effect the employer is required
neither to accept nor to reject the resignation — The question of acceptance or
refusal of resignation arises only when the employee gives a notice of
resignation — Since the petitioner resigned with immediate effect, he has only
to surrender his pay in lieu of notice period — But by allowing the employee to
resume his duties from 4.8.87 the employer literally waived its right to
discontinue his service — It is as if the employee has not taken any notice of
the letter of resignation and thus caused the employee to believe that he was
still in service — the employer was therefore estopped by its conduct from
saying that the employee was no longer in service — Bangladesh Biman
Corporation Employees (Service) Regulations, 1979, Peg. 53.

M.A. Mannan Vs. Biman Bangladesh Air Lines, 9BLD(HCD)516

 

Section—115

Promissory Estoppel —
Principle of

When a party acts upon Government assurance, the latter is
estopped from denying such position particularly when there is no formal
contract executed between the parties and a right vests in him.

There was acute shortage of sugar in the country and the
government encouraged the importation of sugar under Wage Earner’s Scheme
exempting so much of customs duty and sales tax leviable thereon as in excess
of 50% and 10% respectively — The importer respondent imported sugar acting
upon assurance of the Government — the subsequent notification dated 6. 11 .84
withdrawing confessional rate with retrospective effect can have no operation
when a right has vested in the importer inasmuch as the respondent had acted
upon assurance that the favourable terms mentioned in the notification dated
16.10.1984 will be applicable to him — He acted upon his assurance and now the
Government cannot fall back upon it and say LriZ he will have to pay customs
duty at the rate that prevailed on 16.11.1988, which reduced the exemption —-
This is clearly a case of as the respondent had acted on the assurance given by
the Government and a right vested in him could not be taken away.

The Collector of Customs, Customs House, Chittagong and others Vs. Mr.
A. .Hannan, 1OBLD(AD)216

 

Section—115

Estoppel — Bar of estoppel when not applicable — Once a
candidate is declared Chairman by notification in the official Gazette he
acquires a legal status and by his subsequent conduct, it cannot be said, he
created an estoppel against statute itself.

Hazrat Ali Vs. Election Commission and others; 10BLD (HCD)157

 

Section—115

Estoppel-Under the Retirement Rules, 1968, the word ‘competent
authority’ has been defined as the authority competent to make appointment of
such service — From the definition, it is clear that the competent authority to
make appointments in Barisal Pourashava is the executive head, namely the Chairman.

Since the appointment of the petitioners was made by the then
Chairman of the Pourashava and since the petitioner joined their services on
the basis of those appointment letters and rendered 12 years uninterrupted
service their appointment cannot now be said to be made irregularly and, if any
irregularity was there initially, it has been cured by lapse of time.

Kanaklata Halder and
others Vs. Barisal Pourashava and another 10BLD (HCD) 381 Section—116

 

Tenant’s estoppel —
It is founded upon a contract — when a person enters into possession of
immovable property as a tenant of another person then neither he nor any body
claiming though him shall be permitted during continuance of the tenancy to
deny the land-lord’s title however defective that title might be.

Hajee Abdus Sattar Vs. Mahiuddin and other. 6BLD (AD) 224

Ref: 49 l.A. 299; A.LR. 1933 (PC)29 — Cited.

 

Section—116

Estoppel — Estoppel
against a tenant — A tenant during his possession is estopped from denying
that the landlord who let him into possession had no title at the time entry —
The estoppel is however restricted to denial of the title at the commencement
of the tenancy — It is open to the tenant even without surrendering possession
to show that since the date of commencement of tenancy, the title of the
landlord came to an end or that he has been evicted by the paramount title
holder — The defendant is estopped from questioning or denying the exclusive
title of the plaintiff landlord who let him into the possession of the suit
property at the beginning Of the tenancy.

Fazal Kariin Vs. Sree Dulal Kanti Baidya and another; 6BLD (HD) 1O5

Ref: A.I.R. 1913 (PC) 96; AIR. l935(PC)59; A.I.R. 1966 (SC)
629;— Cited.

 

Section—145

Admissibility of
previous statement — A party’s previous statement regarding a fact in issue
is relevant and can be used against him if he has not appeared in the witness
box at all — Even if the party appearing in the witness box is not confronted
with his contrary previous admission, his previous admission, if duly proved,
is admissible.

Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183

Ref. A.I.R. I 946(Lahore) 65(FB); A.I.R. 1957 (Allahabad) I
(F.B); A.I.R. 1966(SC) 402—Cited.

 

Section—145

Recital in kabala —
Question of admissibility — Plaintiff is not an executrix the kabala, she
is a mere recipient of it — The recital of kabala per se shall not go into
evidence unless the person who has made such recital raises any objection there
for.

Feroja Khatoon Vs. Brajalal Nath and others; 10 BLD (HCD) 218.

EVIDENCE
ACT 1872 (1 OF 1872)

 

Section—3

Confession
of a co-accused—it does not come within the definition of ‘evidence’ as
contained in section 3 of the Evidence Act. It may however lend assurance to
other evidence.

Dula Mia alias Nurul
Islam Vs The State 14BLD(HCD)477

 

Section—3

Confession
of a co-accused is no evidence against other accused persons and the same
cannot be made the sole basis of conviction of others. The Court can however
consider the same to lend assurance to other independent evidence on record.

The State Vs. Md. Musa
alias Musaiya alias Shafir Bap 15BLD(HCD)169

Sections—3 and 30

Confession of a co-accused

It is now well-settled
that the evidentiary value of a confession, particularly of a retracted
confession by a co-accused is nil in the absence of strong, independent and
corroborative evidence.

Faruk Mahajan and others
Vs The State, 17BLD(HCD)15

Ref: 16DLR558;1983BLD325;
PLD1960  (WP)Karachi 817; 1984BLD(AD)193—Cited.

Sections—3 and 30

It is an
accepted proposition of law that the confession of a co-accused is no evidence
against the other accused within the definition of section 3 of the Evidence
Act. The purport of section 30 is that the confession of a co-accused can only
be used to lend assurance to other evidence which by itself must be sufficient
to support a conviction.

Abdul Awal and others Vs.
The State, 14BLD(HCD)187

Ref: 1952 S.C.R. (India)526—Cited.

Sections—3 and 30

Confession of co-accused

The
confession of an accused is no evidence against the co- accused under section 3
of the Evidence Act. Under Section 30 of the Evidence Act the confession of an
accused can be taken into consideration against his co-accused and it can only
be used to lend assurance to other legal evidence. But in the absence of any
substantive evidence the confession of a co-accused is of no consequence
against other accused persons.

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

Sections—3 and 30

Confession of a co-accused,
use of

Even if the
confessional statement of one accused is found to be true and voluntary, still
his confession cannot be used against those who are co-accused in the case, as
the basis for convicting them when there is no other evidence against them.

Dr. Ishaq Ali Vs. The
State (1993) 13BLD (HCD)236

Ref: 5DLR 369; 18 DLR
(West Pakistan) 112—Cited

Section—5

The evidence of interested,
inter-related and partisan witness

Their
evidence must be closely scrutinized before it is accepted. The correct
principle in respect of the evidence of persons falling in the category of
interested, interrelated and partisan witnesses is that it must be closely and
critically scrutinized. It should not be accepted on its face value. Since
interested witnesses may have a motive of falsely implicating the accused
persons, their evidence has to cross the hurdle of critical appreciation. As
their evidence cannot be thrown out mechanically because of their
interestedness, so their evidence cannot be accepted mechanically without a
critical examination.

The rule
that the evidence of interested witnesses requires corroboration is not an
inflexible one. It is a rule of caution rather than a rule of law.

The High
Court was obviously wrong in holding that no corroboration was necessary in
this case and failed to scrutinise the evidence of interested eye-witnesses
with infirmities in their evidence. It is unsafe to rely on such evidence for
sustaining a conviction on a capital charge without corroboration, either
circumstantial or ocular. (Per. Mustafa Kamal, J delivering the majority
judgment)

There is no
rule of law that if independent witnesses are not available in a case, a
conviction cannot be sustained on the evidence of eye witnesses who are
relations and partisan witnesses. If found to be trustworthy, conviction can be
based on the evidence of such interested witnesses.

When both
the parties are equally powerful and divided in two hostile groups, at the
present day no body likes to involve himself in a group rivalry between two
strong factions of people. In such a case, it is indeed difficult for the
prosecution to examine independent witnesses as the villagers would be
reluctant to side with any of the parties who had longstanding enmity and
rivalry between them. Furthermore, the witnesses as well as the accused being
interrelated amongst themselves and enemically disposed of towards one another,
it was difficult for the prosecution to examine independent witnesses.
Moreover, it does not appear from the record that any independent witness who
had seen the occurrence & was withheld by the prosecution to find fault
with it. (Per Latifur
Rahman,.J-delivering dissenting judgment)

Nowabul Alam and others
Vs The State, 15BLD(AD)54

Section—8

Abscondence of the accused—Abscondence
of the accused during the trial may be a circumstance for giving rise to an
adverse presumption against him and but it can never be the sole basis of
conviction.

The court
acted illegally in putting the burden of disproving the charge upon the accused
person.

Abdus Salam Vs. The
State, 14BLD (HCD)99

Section—8

It is a
settled principle of law that an accused is not supposed to prove or disprove
anything and the onus lies on the prosecution to prove its case. The learned
Special Judge was wrong in convicting the appellant simply on the ground that
he was absconding and did not appear to face the trial or to refute the charges

Md. Jamsed Ahmed Vs. The
State, 14 BLD (HCD)301

Section—17

Statement in
writing made by the accused before respectable persons who are not police
officers, clearly admitting therein bringing into Bangladesh of a huge quantity
of gold without any valid authority though may not amount to confession proper
but nonetheless it is a clear admission by the accused of his misdeed under
section 17 of the Evidence Act. The trial Court was right in accepting this
admission along with other evidences in establishing the guilt of the accused.

Md. Shaft Vs. The State, 14BLD
(HCD) 322

Ref: 10 DLR(WP)55; 45
DLR(AD) 113—Cited

Section—24

Extra-Judicial confession

By its very
nature it is a very weak type of evidence. It is unsafe to base conviction of
an accused on his extra-judicial confession alone. The value of such confession
as evidence depends on the veracity of the witnesses to whom it is made. In a
case of such confession material corroboration of evidence of unimpeachable
character is required.

In the
instant case there is no ocular evidence of the occurrence except the testimony
of P.W.8 Md. Habibur Rahman who also did not disclose the name of the condemned
prisoner to the P.W. 1 informant, or to anybody after the killing or also at
the time of lodging the first information report. Although it has been stated
by some of the witnesses that condemned prisoner Hasen Ali made extra-judicial
confession admitting the killing of the victim the allegation of making the
extra- judicial confession has become, uncertain and without any corroboration
and as such it is unsafe to base a conviction on the basis of the said extra
judicial confession.

The State Vs. Hasen All,
19BLD (HCD) 419

 

Sections.—24, 30

Prolonged police custody before recording
confessional statement—Prolonged police custody of the confessing accused
immediately preceding the making of confession is sufficient, if not properly
explained, to make the confession involuntary.

A confession
to be the basis of conviction must be voluntary and true and it must also be
inculpatory in nature. Exculpatory confession is no confession in the eye of
law.

Dula Mia alias Nurul
Islam and others Vs. The State, 14BLD(HCD)477

Retracted confession

A retracted
confession requires independent and reliable corroboration before it is
accepted and acted upon.

Dula Mia alias Nurul
Islam and others Vs. The State, 14BLD(HCD)477

Section—30

Confessional statement,
whether is evidence itself?

Confessional
statement is not evidence itself. It can only be taken into consideration
against the co-accused if corroborated by some other independent evidence. This
section applies to confession made by an accused affecting himself and his
co-accused in a joint trial for the same offence and not the statement whereby
he does not admit his guilt

Abdul Gafur and others,
Vs. The State, 13BLD(HCD)598

Section—30

Section 30 of the Evidence Act
provides that the confession of a co-accused can be taken into consideration to
lend assurance to other substantive evidence on record but it never says that
such confession amounts to proof. In the instant case, there being no
substantive evidence, either direct or circumstantial, implicating the
appellant in the alleged murder or in the abetment of the same except as to
some evidence about the motive of the offence, the High Court Division was
wrong in treating the confessional statement of the co-accused as substantive
evidence and treating the evidence of P.Ws. 4 and 7 as corroboration thereof.

Ustar Ali Vs. The State,
18BLD (AD)43

Ref: 1LR76 Indian
Appeals 147; 27DLR 29; 44DLR(AD) 10—Cited

Section—30

Confession of co-accused

Section 30
of the Act provides that the confession of a co-accused can be taken into
consideration to lend assurance to other substantive evidence on record but it
never says that such confession amounts to proof. In the instant case, there
being no substantive evidence, either direct or circumstantial, implicating the
appellant in the alleged dacoity or in the abatement of the same except as to
some evidence about the motive of the offence, the trial Court was wrong in
treating the confessional statement of the co-accused as substantive evidence
against the appellant.

Mojibar Vs The State, 20BLD(HCD)273

Ref: Ustar Ali Vs. The
State, 18BLD (AD) (1998)43: 3BLC(AD)53; Bhuboni Safer Vs. The King, 1LR76
Indian Appeals 147; Lutfun Nahar Vs. State, 27DLR29; Babor Ali Mollah Vs.
State, 44DLR(AD)10 ; 2DLR (PC) 29—relied.

Section—30

Section 30
of the Act provides that the confession of a co-accused can be taken into
consideration to lend assurance to other substantive evidence on record, but it
never says that such confession amounts to proof. In the instant case there
being no substantive evidence, either direct or circumstantial, implicating
Ansar Ali, Montaz, Bhola and Hormuz Ali in the alleged commission of dacoity,
the learned Assistant Sessions Judge was wrong in convicting the appellants on
the basis of the confessional statement of their two co-accused.

Md. Ansar Ali Vs The
State, 19BLD (HCD)224

Ref: 1 8BLD(AD)(
1998)43—relied upon

 

Section—32(1)

Dying declaration

It is
alleged by the defence that P.W.1 admittedly not a witness of the occurrence
implicated the accused persons out of enmity at the instance of P.W.4 who
during cross- examination himself stated categorically that before going to the
thana for lodging F.I.R. he consulted the matter with the informant PW. 1 which
lends support to the defence version that the accuseds have been falsely
implicated in the case in collusion with him. It is also in the evidence of
P.W.5 that regarding dying declaration alleged to have been made by the
deceased on query to her wife but Mobessera did not say that she reported the
matter to P.W. 1 before going to thana for lodging

F.I.R.
Moreovor the daroga deposed that she did not state to him that her husband the
victim told her the names of the accused persons or she saw them running away.
This statements are also absent in the first information report. Moreover the
principal accused Kamrul Islam have been acquitted by another Bench of the High
Court Division disbelieving the prosecution story in Criminal Appeal No. 605 of
1995.

Liton Vs The State, 20BLD(HCD)219

 

Section—32(1)

In the
instant case, there are two dying declarations made by deceased Hatem Ali
Sikder and in both the dying declarations he mentioned the names of the
appellants. The second dying declaration being nearer to death, the High Court
Division believed the same and acted on it. Moreover, P.Ws 4 and 7 in clear
terms mentioned the inflicting of injuries by the appellants on the person of
the deceased, which is supported by the medical evidence. The High Court
Division ought not to have rejected the evidence of these two witnesses merely
on the ground that they were not disinterested witnesses, notwithstanding the
fact that the defence failed to shaken their credibility in cross-examination.
The order of conviction is maintained.

Samad Sikdar Vs. Md.
Abdul annan Sikder, 17BLD(AD)239

Section—32 (1)

Dying declaration—Conditions for acceptance

Three
conditions will have to be fulfilled before a dying declaration is acted upon.
The first condition is whether the victim had the physical capability of making
the statement. Secondly, whether the witnesses heard the statement correctly
and reproduced the names of the assailants correctly in the Court. Thirdly,
whether the maker of the dying declaration had the opportunity to recognise the
assailants correctly.

Md. Abul Kashem Vs. The
State, 15BLD (HCD)205

Section—32(1)

Statement of a dead person when relevant?

Statement,
written or verbal, of relevant facts, made by a person who is dead is relevant
when the statement is made by a person as to the cause of his or her death in
cases in which the cause of that person’s death comes into question.

The State Vs. Abdul
Khaleque, 13BLD (HCD)354

Ref:
PLD 1956 (FC)43=8 DLR (FC) 24; BCR 1982 (Special Bench )344; 12 BLD 49; 40
DLR(AD)281; 21DLR(SC)89=PLD 1969 -SC 89; Pakala Narayan Swami Vs. The King
Emperor (1939)56 Indian Appeals 66 (76); 27 DLR (AD) 29—Cited

Section—80

Examination of the recording Magistrate

It dispenses
with the necessity of a formal proof of a confession duly recorded by a
Magistrate in accordance with the provisions of section 164 of the Code of
Criminal Procedure. In such a case the examination of the recording Magistrate
is not imperative.

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

 

Section—32(1)

Dying declaration

A dying
declaration if believed can alone from the basis of conviction, as it is a
substantive evidence under section 32 of the Act. In the instant case the dying
declaration was duly recorded by a competent Magistrate who proved the same
before the Court. The dying declaration was recorded on 22.5.1989 and the
victim died on 15.6.1989. The intestine of the victim came out and he was
operated upon immediately. Thereafter on the requisition of hospital authority
the dying declaration was recorded by a competent Magistrate which shows
critical condition of the victim. Moreover the victim himself corroborated, it
by saying that he could not speak further and there- fore merely because the
victim died some days after recording the dying declaration will not render the
dying declaration inadmissible under section 32 of the Act.

The State Vs Akkel Ali
and ors, 20 BLD(HCD)484

Section—80

Memorandum by Magistrate
conducting

TI. Parade—Not admissible in
evidence

Memorandum recorded by the
Magistrate conducting T.I. Parade is not a judicial proceeding and as such it
is not admissible under section 80 of the Evidence Act, unless the Magistrate
deposes before the Court and proves it. Non-examination of the Magistrate who
held the T.I. Parade renders the memorandum drawn by him inadmissible in
evidence.

Md. Mizanur Rahman alias
Miza alias Mizan Vs The State, 17BLD(HCD)82

 

Section—101

Burden of Proof

In a
criminal case the onus of proving the charge against an accused lies on the
prosecution. The prosecution must prove its case beyond reasonable doubt and
the accused has no obligation to account for the death of the victim for which
he is placed on trial. But when the murder of the wife of the appellant takes
place in his house while she was living with him in the same house, the accused
owes a duty to explain as to how his wife has met with her death.

Ali Hossain Vs. The
State, 15BLD (HCD)307

Sections—101 and 106

The burden
of proving the manner of the incident as alleged by the prosecution lies
squarely on the prosecution and it never shifts. If the manner of the incident
is not proved, the prosecution must necessarily fail, no matter, whether the
defence version of the case has not been proved either.

In order to
bring a case within the ambit of section 106 of the Evidence Act, ‘special knowledge”
of relevant facts must be attributed to the accused persons in respect of
commission of the offence. Only in such exceptional cases the burden of proving
those facts is shifted to the accused persons for dispelling special knowledge’
in the commission of the offence.

Kawsarun Nessa and
another Vs. The State, 15BLD(HCD)21

Sections—102

Burden of Proof

The gravity
of the offence or its heniousness is no ground in determining the guilt of the
accused. For securing conviction the prosecution must prove its case by cogent
and legal evidence. The guilt of the accused cannot be said to have been
established only with reference to the statements made in the FIR, it never
being substantive evidence.

The State Vs. Md. Habibur
Rahman Khan, 17BLD(HCD)527

Section—102

Burden of proof

In our
criminal jurisprudence the burden of proving the guilt of the accused lies
squarely on the prosecution and it does not ordinarily shift on to the accused,
yet, in anticorruption cases under the Criminal Law Amendment Act, 1958 certain
burden has been thrust upon the accused to account for the goods and properties
entrusted to him.

In the
instant case the defence miserably failed to discharge that onus to dispel the
effect of the overwhelming evidence on record proving the guilt of the accused
beyond reasonable doubt and as such there is no substance in the instant appeal
and accordingly it fails.

G. M. Nowsher Ali Vs. The
State, 19BLD (HCD)1 77

Section—106

Burden of proving fact especially within
the knowledge of any person—Alibi in a quasi-criminal proceeding

Even in a
quasi-criminal proceeding if a plea of alibi is taken the burden to prove it is
on the person who takes such a plea, because that fact is within his special
knowledge. The petitioner had opportunities to prove his absence from the
country since 1982 at the trial Court, the lower appellate Court and the High
Court Division but he did not avail of the opportunities. Even before the
Appellate Division the petitioner failed to produce any proof in support of his
plea of alibi. Under such circumstances the petition merits no consideration.

Md. Abdul Tahid alias
Tahid Ulla Vs. Md. Kadaris All, 16BLD(AD)248

Section—106

Murder of wife—Alibi of the
husband— Presumption

The accused
and his wife were sleeping in the same bed. The wife died due to multiple
injuries on her person. In such circumstances a heavy burden is cast upon the
husband to satisfactorily explain as to how his wife died.

Gouranga Kumar Saha Vs
The State, 17BLD(HCD)259

Section—114 (g)

Adverse presumption

Unless it is
shown that the witnesses named in the charge sheet were material witnesses in
the case, no adverse inference against the prosecution should be drawn under
section 114(g) of the Evidence Act for non-examination of all those witnesses.

Md. Reazuddin Sardar
alias Md. Reazuddin and others Vs. The State, 14BLD (AD)178

Section—114(g)

Non-examination
of important witnesses, particularly some of the neighbours, without reasonable
explanation raises a presumption against the prosecution to the effect that had
they been examined, they would not support the prosecution case.

Benefit
of doubt—Even if there may be elements of truth in the prosecution case
against the accused, that by itself is not sufficient for conviction. Between
“may be true” and “must be true” there is inevitably a long distance to travel
and whole of the distance must be covered by the prosecution by legal and
reliable evidence.

Dula Mm alias Nurul Islam
and others The State, 14BLD(HCD)477

Section—114(g)

Non-examination
of independent witnesses, especially some of the close neighbours, calls for a
presumption under section 114(g) of the Evidence Act to the effect that had
they been examined they might have deposed against the prosecution.

Kawsarun Nessa and
another Vs. The State, 15BLD(HCD)21

Ref: 25 DLR 398; AIR
1936 (All) 833; 41DLR(HCD) 349; 31 DLR (AD) 75—Cited.

Suggestion by the defence
lawyer

Suggestion
by the defence lawyer cannot be construed as admission of guilt by the accused.
The accused is not required to prove his innocence. The prosecution must prove
his guilt beyond reasonable doubt.

Dula Mia alias Nurul
Islam and others Vs. The State, 14BLD(HCD)477

Ref:
27 DLR(AD)29; 44DLR(AD) 10, I.L.R. .76 Indian Appeals 147; 12 DLR (SC) 156;
12DLR (SC) 217; 36 DLR 185; 16 DLR 147; 45 DLR 171; A.I.R. 1939 (PC) 47; 25 DLR
399; A.I.R. 1957 (SC)107; 6BLD(AD)1— Cited

Section—114(g)

Although law
does not require that all the chargesheeted witnesses will have to be examined
at the trial but nevertheless when the prosecution withholds material witness
and fails to examine natural witnesses from the vicinity of the place of
occurrence without any explanation, it casts a serious reflection on the
prosecution case. Under such circumstances an adverse presumption under section
114(g) of the Evidence Act should be drawn against the prosecution.

Momin alias Md. Mominul Huq Vs The State, 16BLD(HCD)246

Section—114(g)

The Court may presume
existence of certain facts

When the
alleged occurrence took place in broad daylight on a busy pathway and the
prosecution failed to examine even a single witness from the neighbourhood and
furnished no cogent explanation for non- examination of such witnesses adverse
presumption under section 114(g) of the Evidence Act must be drawn against the
prosecution.

Md. Alamgir Hossain alias
Alaingir Hossain and another Vs. The State, 16BLD(HCD)270

Section—114(g)

Non-examination of the
Investigation Officer

Non-examination
of the Investigation Officer prejudices the defence and deprives the accused of
an opportunity of cross-examining him as to the manner and method of the
investigation that leads to the submission of two charge-sheets on the
self-same occurrence.

Abdus
Sobhan Howlader and others Vs. The State,13BLD(AD)131

Ref: 40 DLR(AD)
282—Cited

Section—114 (g)

Presumption against the
prosecution for withholding witnesses and evidence

When the
prosecution did not examine the doctor who held postmortem examination, the
investigation officer and other charge-sheeted material witnesses without
satisfactory explanation, adverse presumption under section 114(g) of the
Evidence Act must be drawn against the prosecution.

Munsurul Hossain alias
Babul Vs The State, 16BLD(HCD)326

Ref: 36 DLR 333; 28DL R
128—Cited

 

Section—114 (g)

In this case admittedly there
are dwelling houses on all sides of the place of occurrence but no owner of
these dwelling houses was examined in this case by the prosecution without any
explanation. Non-examination of these natural, probable and disinterested
witnesses calls for an adverse presumption against the prosecution under
section 114(g) of the Evidence Act.

Tomezuddin Biswas alias
Kalu and another Vs The State, 17BLD(HCD)174

Ref :40DLR348; 1
1BLD(1991)23 1—Cited

 

Section—114 (g)

Benefit of doubt

The evidence
of P.W.2 Mona corroborated by the Medical Officer PW 3 and informant P.W I to
the effect that accused Paltu caught hold of victim Kafi while accused Ashraf
struck an iron rod blow on his chest was not accepted by the High Court
Division in view of this fact that P.W.2 omitted to state the fact in his statement
before the Investigating Officer.

The State Vs. Ashraf Ali
and others, 14BLD(AD)127

Section—114(g)

Benefit of doubt

When from
the evidence of the handwriting expert it is clear that the three disputed
cheques, on the basis of which moneys were withdrawn, were in the hand-writing
of the accused person and he did not challenge that fact and did not explain
why he wrote the three cheques belonging to a fictitious account- holders, his
guilt is established and he is not entitled to get benefit of doubt out of
minor omissions made by the prosecution witnesses.

Md. Ibrahim Hossain Vs.
The State, 14BLD(AD)253

Section—114(g)

Benefit of doubt

Evidence
being contradictory on the material question of recognition of the accused
persons and there being no circumstantial evidence lending support to the
deposition of P.W2, the sole eye-witness of the case, the accused are entitled
to benefit of doubt.

Nurul and others Vs. The
State, 14BLD (HCD)221

Section—114(g)

Benefit of doubt

The only
public witness to the occurrence is the baby taxi driver P.W. 2 Aslam who
failed to recognise the accused persons and he could not say the name of the
baby taxi driver or the number of the babi taxis from which the contraband
phensidil syrup was recovered and he did not see from whose physical possession
the said syrups was recovered. The baby taxi driver in question being neither a
witness nor an accused in the case and no neighbouring shop-keeper having been
examined as a witness in the case, the prosecution case becomes doubtful. Under
such circumstances the accused are entitled to benefit of doubt.

Md. Farque Hossain and 2
others Vs. The State, 15BLD(HCD)163

Ref: 1973 Cr1. L. J.
(All) 1096—Cited

Section—114(g)

Benefit of Doubt

In order to
succeed the prosecution must prove its case beyond all reasonable doubts by
cogent reliable and sufficient evidence. The accused is entitled to get all
benefits of doubt till the persecution succeeds in proving its case
convincingly. Simply because several other cases are pending against the accused
persons, no adverse presumption can be drawn against them in determining their
guilt.

The State Vs. Md. Musa
alias Musaiya alias Shafir Bap, 15BLD(HCD) 169

Ref:
5 BLD (HCD) 9; 46 DLR (HCD) 77; 27 DLR (AD) 29; IIDLR (SC) 84; 20 DLR 780;
A.I.R. 1916 (All) 50; SC Cases 1982, 368 (1); 1IBLD(HCD) 295—Cited

 

Section—114(g)

Benefit of Doubt

In a case
where bitter enmity between the parties is proved some sort of corroboration of
the evidence of interested witnesses is required as a rule of prudence. In the
absence of such corroboration of the evidence of interested witnesses, the
accused becomes entitled to the benefit of doubt.

When FIR
mentions gun shot injuries on the head and waist of victim Waliullah but the
postmortem report does not mention any such injuries on the body of the victim
and the Investigating Officer did not find any alamat of firing, the
prosecution case becomes doubtful.

Serajul islam and others
Vs. The State, 15BLD(HCD)613

Section—114(g)

Benefit of doubt

Witnesses to
the case being totally disinterested and they having deposed uniformly on the
material question of recovery of the revolver from the possession of the
appellant, the case has been proved against him beyond the shadow of reasonable
doubts. In such circumstances, the appellant is not entitled to the benefit of
doubt.

Mahbubnr Rahman Khan
alias Tipu Vs. The State 16BLD(AD)268

 

Section—114(g)

Benefit of doubt

For securing
conviction in a criminal case the prosecution must prove beyond all reasonable
doubts the individual liability of each and every accused person. Since there
were fourteen inmates living in the house of occurrence on the fateful night
and the prosecution has failed to prove beyond doubts as to which of them
actually committed the alleged murder of victim Chapa, it cannot be said that
the guilt of the 3 appellants has been proved. Although the defence plea that
some miscreant has committed the murder from out side the window falls through
and it is found that victim Chapa was murdered by some of the inmates of the house,
still then since individual liability of the appellants could not be
ascertained, the accused are entitled to get benefit of doubt.

Zahirul Alam Kamal and
another Vs. The State, 16BLD(HCD)428

Ref: 39 DLR(AD)177—Cited

Section—118

Child witness

Under section
118 of the Evidence Act a prosecutrix, who is the victim of rape or of sexual
offence, is undoubtedly a competent witness and she is entitled to receive the
same weight as is attached to an injured person in case of physical violence.
The same degree of care and caution must therefore attach to the evaluation of
her evidence as in the case of an injured witness in a case of physical
violence. Once the Court is satisfied that the evidence of the prosecutrix can
be safely accepted and relied upon there is no need for any corroboration to
her evidence.

Jahangir Hossain Vs The
State, 16BLD (HCD)238

Ref: (1960) 12 DLR (SC)
165; (1967) 19 DLR (SC) 259;13 BLD(AD)79; 1952 SCR 377; A.I.R. 1983(SC)753;
A.I.R. 1980 (SC) 658; 47 DLR 54: 15 BLD 34—Cited

Section—118

Evidence of a child witness

Section 118
of the Evidence Act provides that all persons who can understand the questions
put to them or can give rational answers to those questions are competent
witnesses to testify in Court.

It is not
imperative for the Court to subject a child witness to a preliminary
examination before reception of his evidence. The Court may satisfy itself
during the progress of the evidence in Court that the witness is capable of
understanding the questions put to him and of giving intelligible reply. In
case of such satisfaction, the evidence becomes admissible. It is desairable
that the Court (trial court) should make an endorsement about its satisfaction
in the ordersheet, in the deposition sheet or in the body of the judgment. There
is no legal compulsion that the Court must ask preliminary questions to test
the capacity of a witness to testify.

Siraj Miah Vs The State,
17BLD (HCD)295

Ref: 1952 SCA 40; 143
Indian Cases 479; 11 DLR (Dhaka) 338; 25 DLR 4—Cited

Section—118

Child witness

A child
witness is a competent witness to give evidence in the Court provided it
appears from its deposition that it could understand the questions put and give
rational answers thereto.

If the
child, though of tender age, was found to be intelligent to understand the
questions put to him and to give rational answers to those questions then his
capacity to give evidence was on the same footing as that of any other adult.
But in such a case it would be desirable for the Court before examining the
child as a witness, to test his intellectual capacity by putting a few simple
and ordinary questions to him and to record a brief proceeding so that the
higher Court may feel satisfied as to the capacity of the child to give
evidence.

The State Vs Ali Hossain,18BLD
(HCD) 655

Ref: AIR 1937 (Patna)
662; 1BLC (1996) 173; 43DLR(AD)(1991)234;A1R1953 (Patna) 246—Cited

Section—134

It provides
that no particular number of witnesses is necessary to prove any fact. The
consensus of judicial opinion is that conviction can be based on the solitary
evidence of a witness, if not tainted in any way.

In the
instant case, since the evidence of the only witness seeing the infliction of
the fatal dagger blow on the neck of victim Abdun Nabi by condemned prisoner
Munshi Miah suffers from infirmities and a number of persons present near about
the place of the occurrence that took place in broad daylight do not support
the informant in so far as it relates to the infliction of the fatal injury, it
is highly unsafe to base conviction on the solitary evidence of the informant.
Discrepancy in the medical evidence makes the prosecution case doubtful.

The State Vs. Munshi
Miah, 15BLD (HCD)139

Ref. 29 DLR (AD)
21i—Cited

Section—134

Number of witnesses

Though it
provides that no particular number of witnesses is required for the proof of
any fact but still then in order to convict an accused solely on the basis of
the evidence of police personnels, who made the search and seizure, the Judge
must ensure that their evidence is unimpeachable and unshaken in character and
the other witnesses to the search and seizure, who are alleged to have resiled
from their previous stand, are unworthy of credence.

Talebur Rahman alias
Taleb Vs. The State, 16BLD(HCD)86

Ref: 8BLD 106; 21 DLR
684; 44 DLR 159—Cited

Section—134

Law does not
require any particular number of witnesses to prove a case. Conviction may be
well founded even on the testimony of a solitary witness provided his
credibility is not shaken by any adverse circumstances appearing on the record
against him and the Court, at the same time, is convinced that he is a truthful
witness. As a general rule, a court can act on the testimony of a single
witness though uncorroborated. One credible witness outweighs the testimony of
a number of other witnesses of indifferent character. Evidence on a point is to
be judged not by the number of witnesses produced but its inherent truth.

Al Amin Vs. The State,
19BLD (HCD) 307

Sections—137 and 139

Examination and
cross-examination of witnesses—Appreciation of evidence

The proper
procedure for appreciation of evidence is to evaluate the evidence of a witness
in its entirety and not to bank on a particular portion of it, evidence of a
witness in his cross-examination is as good as that of his
examination-in-chief, while considering the legal incidence and the essence of
the impressions that it creates upon the mind of the Judge. In arriving at the
proper conclusions, the Court is also required to take note of the attending
circumstances of the case, which at times become a determining factor in
judging the guilt or innocence of witness ignoring his cross-examination an
vital circumstances surrounding the case, must be held to be no proper finding
in the eye of law.

Taizal Biswas Vs The
State, 20BLD (HCD)322

Sections—154 and 142

Witness—Cross-examination by
the party calling it

It provides
that the Court may, in its discretion, permit a party to put questions to its
witness which are usually put in cross- examination by the adverse party. It
may so happen that due to gaining over or unwillingness or faulty memory a
witness does not support the case of the party who brings him in the witness
box but gives unfavourable evidence, in that case the Court is given the
discretion to relax the rule of ‘leading questions’ as defined in section 142
of the Evidence Act and allow the said party to put questions to its own
witness as in done by the cross-examination by the adverse party.

Md. Babul Vs. The State, 18BLD
(HCD) 386

Ref: A.I.R. 1931 Cal
401—Cited

Section—155

Impeaching credit of witnesses—When the
prosecution made out a case in the Court totally different from the F.I.R.  case and the statements of the witnesses
recorded under section 161 Cr.P.C. and the witnesses are found to be
suppressing material evidence, the prosecution case becomes unworthy of
credence.

Md. Zakir Hossain alias
Jakir Hossain and others Vs. The State, 14BLD(HCD)509

Circumstantial evidence

To base a
conviction upon circumstantial evidence it must be incompatible with the
innocence of the accused and it must exclude all reasonable hypothesis of his
innocence.

Haji Md. Jamaluddin and
others Vs. The State, 14BLD(HCD)33

Corroboration

Corroborative
evidence is not an imperative component of Judicial credence in every case of
rape. Corroboration as a condition for judicial reliance on the testimony of a
victim of sex crime is not a requirement of law but merely a guidance of
prudence under given circumstances. The rule is not that corroboration is
essential before there can be a conviction. The testimony of the victim of
sexual assault is vital and unless there are compelling reasons which necessite
looking for corroboration of her statement, the Court should find no difficulty
in acting on the testimony of a victim of sex crime alone to convict an accused
where her testimony inspires confidence and is found to be reliable.

Al Amin Vs. The State,
19BLD(HCD)307

 

Credibility of a witness

The credit
to be given to the evidence of a witness is a matter which is not governed by
rule of law. It depends upon his knowledge of facts to which he testified, his
disinterestedness, integrity and veracity. In judging the credibility of a
witness the Court has to consider the surrounding circumstances as well as the
broad probabilities. When a witness is found to be trustworthy, straight

forward and
reliable and his evidence intrinsically rings true, the evidence of such a
witness can be safely relied upon.

Daliin and another Vs.
The State,15BLD(HCD)133

Corrobaration of the
statement of the prosecutrix

It has long
been a rule of practice for insisting coroboration of the statement of the
prosecutrix but if the Judge feels that without corroboration in a particular
case conviction can be sustained without independent corroboration, then the
Judge should give some indication in his judgment that he has/had this rule of
caution in his mind and then should proceed to give reasons for considering it
necessary to require corroboration and for considering that it was safe to
convict the accused in a particular case without corroboration.

Md. Saidur Rahman Neoton
Vs. The State 13BLD(AD)79

Ref: 12 DLR(SC)165; 19
DLR(SC)256; 1952 Supreme Court Reports 377—Cited

 

Death of a witness after
examination-chief and before cross-examination

When a
witness died after he had been examined-in-chief and before his cross
examination had been concluded, his evidence was admissible, but the degree of
weight to be attached will depend on the circumstances of the case.

There is no
provision in the Evidence Act that the evidence of witness which is admissible
at the time he gave it should become inadmissible for the simple reason that he
could not be cross-examined for some unavoidable reason.

Chowdhury Mia Vs.
Dhanindra Kumar Skil (1993)13BLD(HCD)216

Ref: Davies Vs.
Otty(1865)55 E.R.875;

W. Strewart Vs. New Zealand
Insurance Co. Ltd.(1912)16C.W.N.991=17 IC. 188; Narsing Das Vs. Gokul Prasad,
A.I.R.1928 All 140 =50 All.113; Ahmed Ali Vs. Joly Prosad, 1944 All. 188—Cited

Expunction of Evidence

Once a
witness has deposed in the Court, his deposition has to remain on record for
whatever it is and there is no law for expunction of his evidence at the
instance of the prosecution.

Md. Mainuddin Howlader
Vs. The State, 14BLD(HCD)82

Evidence of prosecutrix in a
rape case

On principle
the evidence of a victim of sexual assault stands at par with the evidence of
an injured witness. Just as a witness who has sustained an injury in the
occurrence is the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of rape or of a sexual
offence is entitled to a great weight, absence of corroboration
notwithstanding. If the evidence of the victim of a sexual offence does not
suffer from any basic infirmity and “probabilities factor” does not render it
unworthy of credence there is no reason to insist on corroboration to the
evidence of the prosecutrix. Law does not require that the evidence of the
prosecutrix requires corroboration.

In a sex
offence case there is no legal bar in believing the sole testimony of the
prosecutrix, nay, she must prima facie be believed, except in a rarest of rare
cases where she is found unreliable. The necessity of corroborative evidence
will arise and that the legal custom of insisting on corroboration in every
case or alternatively of stating the reason for waiving such corroboration is
not applicable in our country.

Jahangir Hossain Vs The
State, 16BLD (HCD)238

 

Evidence—False in part, may
not be false in entirity

In our
country there is a tendency in the witness to exaggerate, embroider and also to
falsely implicate some persons in addition to the real offenders. But even then
the Court is to scan the evidence carefully so as to come to a correct decision
as to which part of the evidence is acceptable and which part is to be
rejected. Only when it becomes impossible to separate the truth from the
falsehood, the Court will be justified in rejecting the entire evidence.

Masum and others Vs. The
State, 16BLD (HCD)151

 

Non-examination of the
Investigating Officer

When
non-examination of the Investigating Officer deprives the defence of its
valuable right to shake the credit of the prosecution witnesses by bringing out
the contradictions between their statements made during the investigation and
the statements made before the Court, in such a case non- examination of the
I.O. is fatal.

Zafar and others vs. The
State, 14BLD (HCD)280

Police personnel —Interested
witness

The public
witness did not support the prosecution case and the prosecution failed to come
with reasonable explanation as to why they did not support the prosecution case
nor any enmity with the informant of this case. So, the persistent evidence of
the public witnesses regarding denial of their presence at the time of alleged
recovery in no way can be cured by the official witnesses (police personnel)
who are none but interested in this case.

Aslam Jahangir Vs The State, 20 BLD (HCD) 426.

 

 

Evidence Act, 1872 (I of 1872)

Section —3

Proceeding before Arbitrator

Arbitration
Award cannot be quashed simply on the ground of Misreading of evidence.
Arbitrators in awarding Award had taken upon themselves the duties of
Arbitrators carefully and considered papers in the case and passed the Award.
It, thus, cannot be at all suggested that the Award rested on no evidence or on
Misreading of evidence.

Chittagong Steel Mills Ltd & Anr. Vs M/S
MEC & Ors. 13 BLT (HCD)230

Section-6

Unregistered
deed of gift—the
plaintiffs case was that the suit property was originally belonged to Abdul
Wahab Howlader. The said Abdul Wahab Howlader executed a deed of gift in favour
of the plaintiffs on 27.7.64 and delivered the possession but the said deed
could not be registered due to certain difficulties. The defendants claimed the
title over the suit land as a residuary sharer. Hence the plaintiff filed the
title suit for declaration of title in respect of suit land—the learned trial
court in consideration of oral and documentary evidence and materials on record
decreed the suit. Against the said decree the defendants preferred appeal.
Learned Appellate Court allowed the appeal by reversing the decree of the trial
court—Held: That the plaintiffs, being in exclusive possession over the
statutory period of limitation from the date of institution of the suit by the
plaintiffs in the year 1984 and to the complete ouster of the defendants for
about 20 years from the suit property have acquired a valid title even on the
basis of the defective deed -of gift being an unregistered one. It further
appears that the defendant could neither challenge the said unregistered deed
Ext. I nor file any suit to establish their alleged right in the suit property
within the statutory period of 12 year and it is further held that the defect
of the plaintiffs deed of gift has been cured with the passage of time and the
plaintiffs imperfect title has been perfected by the said period.

Amirunnessa & Ors Vs. Abdul Mannan
Howlader & Ors. 3BLT (HCD)-245

Section -6

Document—Plaintiff instituted the suit for declaration
of title and also for a declaration that the suit property cannot be treated as
vested and non-resident property (Enemy Property) alleging, inter alia that one
Jagat Chandra Karmaker was the C. S. recorded owner of the suit property. After
his death his son Gopal Karmaker inherited the said property. This Gopal
Karmaker transferred the suit property to one Harendra Lal Saha and Jagannath
Saha. After the death of Harendra Lal Saha his property was inherited by his
two sons Chandi Gopal Saha and Ashutosh Saha. One Parveen Akter purchased the
suit property by registered deeds from Chandi Gopal Saha, Ashutosh Saha and
Jagannath Saha. From this Parveen Akhter plaintiff- appellants had purchased
the suit property while the plaintiffs were possessing the suit land, they came
to know that the property in question was declared as vested and nonresident
property—learned Subordinate Judge dismissing the suit holding that the
plaintiffs failed to produce any document to show the transfer in between Gopal
Karmaker and Harendra Lal Saha and others—Held: The averments made in the
plaint and the evidence of P.W.I together with the written statements of
defendant No. 2 and the evidence of P.W. I it clearly appears that Harendra Lal
Saha and others became the owners of the suit property and they possessed the
same and sold the same to Mrs. Parveen Akhter by registered sale deeds in
1981—the rent receipts together with the continuous record as right vide
exhibits I series may be treated as collateral evidence of title in favour of
the plaintiff. Now, if we consider the oral as well as documentary evidence as
stated above, we find that this Harendra Lal Saha and others acquired right and
title over the suit property. The documents by which the heirs Harendra Lal and
Jagannath transferred the suit land to Parveen Akhter and the registered
document by which Parveen Akhter transferred the land to the present plaintiffs
are not disputed at all. So it is held that the learned Subordinate Judge
failed to consider the material evidence or record as stated above and he has
arrived at a wrong finding and as such it cannot be sustained.

Md.
Amjad Hossain & Ors. Vs. Upazilla Nirbahi Officer Savar & Ors. 3BLT
(HCD)-163

Section-33

The
market value of the vessel of the plaintiff was determined by the Admiralty
Judge on the basis of Ext. 25 series which is the deposition of seven witnesses
(employees of the plaintiffs’ vessel) who appeared before the Magistrate, 1st.
Class, Marine Court, Dhaka. It is really unfortunate that deposition of those
persons who deposed in a criminal proceeding before the Marine Court s relied
upon by the Admiralty Judge. Under section 33 of the Evidence Act that
proceeding was not between the same parties. As a matter of fact, Ext. 25
series is not admissible in this admiralty proceeding and Ext. 25 series cannot
be legally accepted as the basis for determining the market value of the vessel
and consequently the passing of the decree of Tk. 80,10,000/- is without any
legal evidence and the same cannot be awarded in favour of the plaintiff as has
been done by the learned Admiralty Judge.

BIWTC Vs. Al-Falah Shipping Lines Ltd. &
Ors. 6BLT(AD)-103

Section-34 read with Bankers Books Evidence
Act, 1891; Section-4

Section
4 exempts a banker from producing bankers’ books namely ledgers day books,
cash-books, account-books and any other books used in the ordinary business of
a bank to prove its claims. Instead, it’ a bank shall produce a certified copy
of any entry or entries in the books of the bank in a manner as provided by
section 2(8) of said Bankers’ Books Evidence Act. Even when such certificate is
produced and proved to have been so written that will not if so facto prove the
claim of a bank. Such entries would have to be corroborated by independent
evidence.

BCCI Ltd. Vs. Bangladesh Electrical Industries
Ltd. & Ors. 12 BLT(HCD)-502

Section-73

Handwriting
expert opinion as to the identity of the disputed signatures and initials on a
questioned document—Contention than the opinion of the handwriting expert is
preferable to the court’s exercising the power under section 73 of Evidence Act
which is to done very cautiously and the said course is hazardous and
inconclusive was rejected— petition dismissed.

It is
true that long line of decisions have expressed divergent views and one view is
that the Court should not take such hazardous steps for expressing any opinion
and another view to the contrary. In the context of two views, a Judge
naturally hesitates to exercise the power conferred by section 73 to compare
handwriting by using his own eyes. This is more so whenever evidence is scanty
unreliable or there is no evidence of hand-writing expert but these are mere
words of caution. There is no hard and fast rule which prohibits such course by
the Judge. The privy Council itself compared the disputed signatures with
admittedly genuine signature in Monindra Vs. Tshalaxmi Bank, A. I. R. 1945 P.C.
150 and the same was followed in A.I.R. 1949 PC 325. Mr. Gafur strenuously
urged that this court should lay down the law.

This
contention does not appeal to us in view of the fact that the proceeding is
still pending in the Court below and sufficient guidance has been given by the
long line of decisions for the Court which do not warrant any further
pronouncement.

Nitai Chand Shah. & Ors. Vs. Md. Aga. Khan
& Ors. 1BLT (AD)-46

Section-73

In the
instant case the court by the impugned order allowed comparison of the disputed
signature of the plaintiff on the solenama with the specimen signatures of the
plaintiff and the signature of the plaintiff on the registered sale deed dated
23.10.1983. The plaintiff petitioner raised serious objection on the ground
that the genuineness of the registered sale deed dated 23.10.1983 was
challenged in Title Suit No. 334 of 1992

Held:
Comparison of disputed nature L.T.I cannot be done by the Expert with the said
registered document which is not admitted or proved to the satisfaction of the
court.

Dinesh Chandra Deb Vs. Dulal Chandra Karmaker
& Ors 9BLT (HCD)-202

Section-73

Opposite
party Mossammat Zinnatunnessa categorically denied that she put her thumb
impression on each and every page of the alleged deed of gift—Held: I am of the
view that in the facts and circumstances of the case it is better to have an
expert opinion as to the execution of thumb impression of the opposite party on
the alleged deed of gift. It is true that the expert opinion is not binding
upon the court to decide as to the genuineness of thumb impression so I am of
the view that the opposite party will not be prejudiced in any way if the
prayer for expert opinion is allowed. Rather, expert opinion enables the court
to come to a satisfactory conclusion.

Md. Abdul Hashem Mizi Vs. Most. Zinnatunnessa
& Org. 8BLT (HCD)-110

Section-73

It is
well settled that Section 73 of the Evidence Act permits the Court to make a
comparison of signature or writings and so adoption of such a method cannot be
termed as hazardous or dangerous.

Zohra Khatoon & Ors. Vs. Ekramul Haque
Chowdhury & Ors. 10BLT (AD)-171

Section-73

The
Point at issue to be decided was as to whether the deed of Hebabil-ewaz was
genuine or not and therefore trial court directed the signature/thumb
impression appearing in the deed in question to be compared with that of the
admitted thumb impression appearing in another. There is no illegality in that
order.

Md. Sadequl Islam Sarder Vs. Saimuddin Sarder
& Ors. 12 BLT (AD)-73

Section-73

It
strikes necked eyes that 17 endorsements were written on 3/4 seating. Name of
defendant no.1 on so called acknowledgements as written on 01.01.1987;
31.01.1987; 18.02.1987 and 23.02.1987 appear to be of the same pen and ink;
those on 13.06.1987 and 19.07.1988 appear to be of another pen and ink, those
of 03.05.1986, 28.05.1986 and 16.07.1986 of different pen and ink and those of
13.07.1986; 19.07.1986 and 23.04.1987 were still of another pen and ink. We
have examined the signatures on the acknowledgements with the admitted
signature of defendant no.1 on the agreement, exhibit-2 and we do not have any
hesitation to say the signatures on the acknowledgements do not tally with the
admitted signature of defendant no. 1.

Saroj Kanta Sarker & Ors. Vs.
Seraj-ud-Dowla & Ors 12 BLT (HCD)-28

Section-73

In case
of contentious writing, signature etc. though provision of section 73 of
Evidence Act permits the court to compare the contentious signature with the
admitted signature, the safe and best course in our view for the court would be
to avoid the practice of comparing the writing or signature etc. and should not
stake its judgment on the opinion formed or view taken upon resorting to risky
or in other words ‘unsatisfactory and dangerous’ procedure.

Tarak Chandra Majhi Vs. Atahar Ali Howlader
& Ors 13 BLT (AD)03

Section-73

Trial
court resorted to the mode as provides in section 73 of the Evidence Act and
thereupon comparing signature in the pass port (Ext.14) and in the Power of
Attorney (Ext. 1 ‘ka’) with the signature appearing in the deeds of October 27,
1969 held the document of October 27, 1969 forged. The mode so resorted to by
the trial Court was erroneous since identity of the plaintiff Jatindra Mohon
Roy whose signature claimed to be in Ext. 14, and Ext. 1 (ka), was not
established in the background of the contention of the defendants that the said
plaintiff is a fictitious Jatindra Mohon Roy and not the real Jatindra Mohon
Roy who transferred the property in suit by the deeds dated October 27, 1969 to
Ali Ahmed Khandker and Wali Mohammad Siddiqui. The High Court Division
concurred with the finding and decision of the trial Court as regard the deeds
dated October 27, 1969. Since the finding of the trial Court that by the deeds
of October 27, 1969 plaintiff Jatindra Mohon Roy did not transfer the land in
suit was arrived at on the basis of inadmissible evidence and upon resorting to
a made whereof there was no basis, as such the said finding of the trial Court
and the High Court Division was not legally sustainable.

A N M W Nabi & Anr Vs. Md.Balai Roy &
Ors. 15 BLT (AD) 27

Section —73

It is
true that the Court itself can compare any signature or L.T.I. of any concerned
person himself under section 73 of The Evidence Act and come to a decision but
it is better to have an expert’s opinion also, particularly in a case of L.T.I.

Md. Chand Miah & Ors Vs. Md. Ibrahim &
Ors. 15 BLT (HCD)306

Section-73

The
Superior Courts warned and cautioned the Court not to be venture to compare the
disputed signature with admitted signature as an expert and give its opinion
where the dispute in the subject matter in the subject matter is based upon the
genuineness of the writing or signature in a deed. The Superior Courts held
that the task held that the task of examination of hand writings being a very
technical one which should be left with the expert opinion evidence, who by
applying scientific method comes to the opinion whether the signature or
writings is that of the person by whom it purports to have been written, which
cannot be done by comparison with naked eyes by the Court.

Namita Rani Biswas & Ors Vs. Rabindra Nath
Majhi & Ors 15 BLT (HCD)493

Section 74

Plaint
is a Public document.

Swarupa Banu & Ors Vs. Ankura Begum &
Ors 15BLT(HCD)118

Section—74

Whether
a passport could be accepted as a conclusive evidence. The plaintiff to prove
his date of birth being 2.1.1946 has produced his passport Ext. 3 issued under
the signature of the Deputy Assistant Director, Immigration and passports.
Government of Bangladesh, Dhaka on 16.2.1997 and the date of birth as mentioned
in the passport is 2.1.1946. This passport being public document could be
accepted as a conclusive evidence to prove the date of birth of the plaintiff
in the absence any other reliable, documentary evidence.

Md. Ruhul Amin Vs. Latif Bawani Jute Mills
Ltd. & Ors. 14 BLT (HCD)361

Sections-74 and 76 read with Transfer of
Property Act, 1882 Section- 123

It is
the case of the respondent that the deed of gift has been registered. The
production of the original deed of gift by the donee and other documents such
as mutation paper, municipal record would have indicated that the same has been
acted upon. But neither the original deed of gift nor the original lease deed
of Dr. Ansari nor any mutation paper nor any municipal record have been
procured to prove the claim of the respondent in view of the aforesaid we hold
that the High Court Division Misdirected itself in holding that when there was
registered deed of gift the respondent has a genuine and strong claim over the
property.

Bangladesh & Anr. Vs. Mrs. Shirely Anny
Ansar 9BLT (AD)-185

Section-79 and 114

Whether the deed, exhibit-I. Ekrarnama can he held
to he not proved for non- examination of the scribe and the other attesting
witness.

The
exhibit I, Ekrarnama is a registered deed. So, there arises under Sections-59
and 60 and 114 (illustration e) of the Evidence Act a presumption that it was
duly presented and registered by defendant 3. Such presumption is. however,
rebuttable. But no evidence in rebuttal of such presumption was adduced by the
defendant 1 and 2 ,Even, they did not take any step to examine defendant 3 who
could have come to the court and denied to have executed the Ekrarnama. The
Ekrarnama would then have a decent burial.

A
licensed deed writer PW-2 on oath testified that the deed was written before
him be the scribe, Amir Bux and executed by the defendant 3. The plaintiff also
deposed in the same line on the writing of the deed and its execution
Sections-67 and 68 of the Evidence Act provide for proof of signature,
handwriting and execution of a deed. Ekrarnama is not required to be attested
under the law. Even, then it was attested by two witnesses. Any attesting
witness can prove the writing and execution of the deed. The appellate court did
neither discard nor disbelieve the evidence of PW-2 Abu Backkar Siddique. I
also do not find any reason to disbelieve the evidence on the writing and
execution of the Ekrarnama. In view of the law and the evidence as stated
above, why the execution of Ekrarnama, exhibit I should not be held to have
been proved is not understood. So without discarding and or disbelieving the
evidence of PW- 1 and 2 and considering the relevant laws, the appellate court
erred in law to hold that the plaintiff failed to prove the Ekrarnama.

Mrs. Wahida Begum & Ors. Vs. Tajul Islam
& Ors. 8BLT (HCD)-238

Section —85

Regarding
authorization —Held: In her testimony, she has also stated that she got written
authorization. In cross-examination, she has deposed that her husband lives in
Abu Dhabi since before her marriage for last 15 years.

No such
authorization was exhibited in the case. Mr. Salauddin however drew our
attention to a power of attorney kept in the file and an envelope. We have seen
them. It appears to be a power of attorney and type written in Bengali by the
typist Dipen Chandra Pal, Judges Court, Noakhali. It does not bear any date.
The envelope is also torn and open. The record does not show who opened it. The
envelope bears the seal of Sonaimuri dated 11.10,98. Those were filed in court
with a list dated 26.10.98. More important is that the document is not executed
before, and authenticated by a notary public nor any representative of our
foreign Mission in Abu Dhabi. In view of S.85 of the Evidence Act, such a document
is not admissible in evidence.

Md. Shah Alam Vs. Abul Kalam & Ors. 10 BLT
(HCD) 22

Section – 86

From
Ext.3 it transpires that the contract on the basis of which the suit was filed
in the Munsif Court, Krishananagar was written by one Nagendra Nath Ghose and
the attesting witnesses to the contract belonged to the members of Nagendra
Nath Ghose’s community and all of them were citizens of India. But the
plaintiff in his evidence in the present suit stated that one Azimuddin Biswas
was scribe of the agreement for exchange and Moksed and Moizuddin were
attesting witnesses.

Thus it
appears that the plaintiff instituted the present suit on the basis of a
different contract which he could not prove by adducing either documentary or
oral evidence and the contract on the basis of which Shibnath Ghose and others
filed Title Suit No.17 of 1961 in the Court of Munsif, Krishananagar, as it
appears, was on the basis of a different agreement.

Md. Abdul Mannan & Ors. Vs. Abdus Samad
Mondal & Ors. 14 BLT (AD)198

Section-90

Once
such a document more than 30 years old is produced from proper custody Section
90 of the Evidence Act entitles the Court to presume that it is a genuine
document.

A.D.C. (Revenue) Vs. Md. Reazuddin PK &
Ors 8BLT (AD)-185

Section-90

Exhibit
I being supported by exhibit 6 being an age old document of over 30 years. It
had presumptive value under Section 90 of the Evidence Act and the Exhibit
1(ka), the certified copy of the original sale deed being admitted in evidence
without objection in the trial court and as such no objection can be raised at
his stage challenging the legality and propriety of the said certified copy of
the sale deed. At the same time in the written statement the defendants have
taken burden of proof that the certified copy of the sale deed. Exhibit 1(ka)
as forged and fraudulent but the defendants failed to prove the same and as
such the certified copy of an old document of over 30 years old having
presumptive value under Section 90 of the Evidence Act admissible in evidence.
Exhibit 1 (Ka) cannot be thrown out of consideration and rent receipts being
filed by the plaintiffs are the collateral evidence of their possession being
followed by title.

Md. Sadek Uddin Chowdhury & Ors. Vs. Md.
Anowarul Haque Chowdhury & Anr. 11BLT (HCD)-72

Section-90

That the
legal presumption of 30 years old document by virtue of provision of section 90
of the Evidence Act is rebuttable. The mere fact that a document is 30 years
old does not make it immune from attack by the other side on the question of
its genuineness.

Md. Biseruddin Sardar & Ors Vs. Md.
Tofazzal Hossain Biswas & Ors. 15 BLT(AD)47

Sections-91 & 92

Section-91
of the Evidence Act is about the manner of proof of a document which has been
reduced to the form of a document and which is required by law to be reduced to
the form of a document. The document itself has to be proved, or where
secondary evidence is admissible, secondary evidence of its contents may be
proved. The terms of the document cannot be proved by any other mode of proof.
The impugned kabala has been proved under Section-91.

Section-92
of the Evidence Act provides that when a document described in Section- 91 has
been proved according to Section-91, “no evidence of any oral agreement or
statement shall be admitted, as between the parties to any such instrument or
their representatives in interest, for the purpose of contradicting, varying,
adding to or subtracting from, its terms.”

Tambia Khatun Vs. Rafiqullah 8BLT(AD) -230

Section-101

Onus
of proof—both
sides have adduced their evidence in support of their respective cases and when
the date is fixed for argument the defendant petitioner filed two applications
before the Family Court, one for examining the plaintiff opposite party No.1 by
a Gynecologist to see whether she is still virgin in the instant case the
plaintiff opposite party No. I is to prove her case and will get its own course
and for matter she cannot be examined by a competent doctor to as certain as to
whether she is virgin or not because thereby the onus of proving the defense
will be illegally shifted on the plaintiff opposite party No.1. Learned Family
Court rightly rejected the application of the defendant petitioner.

Md. Abdul Mannan Sikder Vs. Mst. Nurun Naher
Begum 4BLT (HCD)-148

Section-101

Burden
of proof—vested property—when challenged in a Court of law, the onus is heavily on the
Government to prove affirmatively that the property in question is in fact a
vested property, failing which some evidence to the contrary adduced by the
successors-in-interest of the original tenant or the transferees showing that
they are in rightful possession of the disputed properties, is sufficient to
take the same out of the ambit of enemy property laws. Mere claim by the
Government or by the vested property authority that a certain property is a
vested property, without the necessary factual basis and legal foundation, has
no validity in the eye of law.

Mann, Mondal & Ors. Vs. A. D. C. (Rev).
6BLT (HCD)-22

Section-101

Whether
the cashier is a necessary party The plaintiff respondent filed money suit
against Bank, the sole defendant appellant for realisation of deposited money
by him self— the cashier is not a necessary party in the suit in the facts and
circumstances of the case.

Pubali Bank Vs. Md. Selim 7BLT (HCD)-21

Proof of a document

Unless
objection as to admissibility of a document was taken at the earlier
opportunity, that is, at the time of admitting the documents into evidence and
marking it as an exhibit, the question of its admissibility cannot be raised at
a subsequent stage.

Pubali Bank Vs. Md. Selim 7BLT (HCD)-21

Section- 101

Onus of
proof— in the instant case the transferee is a Pir and the transfer is his
disciple who is not an well educated woman. In order to make the transfer in
this case valid an legal transaction burden of proof that it is so for the
reason of the spiritual relationship that grew between the transferor and the
transferee in whom the transferor had deed faith lies on the transferee
defendant No.1 (Pir).

Shah Sufi Taj Islam
Vs. Begum Rokeya Chowdhury & Anr. 9BLT (AD)-62

Section-101

Onus of Proof—Held: Learned Judge of the High Court
Division found fault with the plaintiff for his failure to adduce evidence to
show that he either purchased the machineries and spare parts from the market
or fabricated the same in his factory. When defendant Nos. 1-5 acknowledged the
receipt of the same there was no necessity of adducing evidence to show from
whom those were purchased or from where those were fabricated. That was not an
issue in the suit, Learned Admiralty Judge Misdirectioned himself to enter into
such an enquiry unnecessarily When the supply of the machineries and spare
parts are admitted by the principal defendants against whom decree has been
sought there was no necessity of enquiring about the origin of the same. We are
of the view that failures of the plaintiff adduce evidence as to from whom
those were purchased or from where those were fabricated cannot deprive the
plaintiff from recovering the price of the same form the defendant Nos. 1-5.

Md. Giasuddin Vs. M.
V. Forum Power & Ors 8BLT (AD)-272

Section-101

Provision
of P.O. 149 of 1972— citizenship—suit for declaration that the plaintiff
appellant is a citizen of Bangladesh —the trial court dismissed the suit under
conception that the onus was upon the plaintiff according to the provision of
P.O. 149 of 1975 to prove that he was a permanent resident of this country in
order to entitle him to get a declaration that he was a citizen of Bangladesh
and it further held that the plaintiff should have proved that on 25.03.1972 he
was in this country left and the trial courts observed that the plaintiff left
this country before the liberation war and came back after liberation—Held: The
right of citizenship acquired by birth cannot be lost or destroyed unless it is
proved that he has given up it and acquired the citizenship of any other
country. Which is very much lacking in this care and the defendant No. 4 Now
respondent could not prove that the appellant lost his citizenship of Bangladesh
which he had acquired by birth. So the Courts below, illegally shifted onus to
prove upon the plaintiff appellant as to his Bangladeshi citizenship which he
held and acquired by birth.

Annada Prasad Das
Vs. Dy. Commissioner& Ors 9BLT (HCD)-456

Section-101

Onus-All the donors
are illiterate ‘Pardanashin’ old Muslim village women.

A
special rule of onus was devised in the sub-continent to protect certain
category of women who suffer from some disabilities and disadvantages because
of ‘pardah system. It applies to all pardahnashin’ women, literate or
illiterate. Then, the protection was extended to ignorant and illiterate women
though not strictly ‘pardahnashin’.

Secondly,
in a case when transfer by a pardahnashin’ woman is denied by such women, the
onus is always on the party who wants to hold such women to the terms of the
deed to satisfy the Court by evidence that she substantially understood the
disposition and she executed the deed with full understanding of what she was
doing and of the nature and effect of the transaction.

Thirdly,
when the transferee or donee stands in a position of active confidence or had
fiduciary relationship with the pardahnashin’ woman he carnies additional
burden to prove that such woman had independent and disinterested advice from
persons other than the recipient of the document in executing a deed;

Anowarul Azim &
Ors. Vs Fatema Khatun & Ors. 12 BLT (HCD)255

Section-101

The
plaintiffs could not prove their settlement and also could not show that the
Bhawal Court of Wards Estate had authority to settle the suit land in the face
of the notifications Ext. A-A(2). The courts below also did not take into
consideration the broad fact that the salami receipts produced by the
plaintiffs are private documents and these require strict proof for being
admitted in evidence.

Govt. of Bangladesh
Vs. Abdur Rahman & Ors. 13 BLT(AD)173

Section- 101

Burden of Proof

When
PW-l Kutubuddin claims that they entered into the shops with knowledge of the
owner. The owner did not take any steps for eviction during their business. The
owners had no knowledge since when they possessed.. Such statements clearly
prove that initial entry of the plaintiffs and possession since then was
permissive and the burden was therefore heavy on the plaintiffs to establish
that such possession became adverse.

Hazi Ashraful Alam Vs Md. Moniruddin & Ors
13 BLT (HCD)86

Section —101

Agreement
is unregistered – burden of proof Agreement was scribed by Abul Bashar and
attested by witnesses Shamsul Huq Munshi and Ripon Sheikh. In proof of
Agreement neither the scribe nor the attesting witnesses had been examined from
side of Vendor- petitioner. Vendor-petitioner signally failed to discharge the
burden of proof which was upon him in respect of legal existence of Agreement.

Selim Saial Vs A.
Majid Molla & Ors. 14 BLT (HCD)62

Section-101

Onus —A wife being found killed in the house of
her husband onus heavily lies upon the shoulder of her husband to explain the
circumstances leading to the death of his wife.

Abu Sayed (Saked)
Vs. The State 15BLT(AD)302

Section 101

Burden of Proof

When a
person asserts that particular transaction is a benami the onus in upon his to
prove that the transaction is a benami one.

Bangladesh Vs.
Shamshur Rahman & Ors 15 BLT (HCD)23

Section-101

The
burden of proof is envisages in section 101 of the Evidence Act is that the
burden of proof lies on the party who substantially asserts the affirmative of
the issue and not upon the party who denies it. This rule of convenience has
been adopted in practice, not because it is impossible to prove a negative, but
because the negative does not admit of the direct and simple proof of which the
affirmative is capable Moreover, it is but reasonable and just that the suitor
who relies upon the existence of a fact, should be called upon to prove his own
case. The party on whom the onus of proof lies must in order to success
establish a prima fade case. He cannot on failure to do so, take advantage of
the weakness of his adversary’s case. He must succeed by the strength of his
own right and the clearness of his own proof.

Mohammad Ali  Miah & Ors Vs. Md. Sekander Ali Haowlader
15 BLT (HCD)484

Section-101 read with Transfer of Property Act
Section-54

Onus – in the instant case the specific case of
the plaintiff being that he neither executed or registered the deed in question
nor received the consideration money as mentioned in the kabala, he was
entitled to adduce oral evidence to prove his said case. As the plaintiff
adduced evidence to prove his case of non-execution and non-registration of the
kabala by him and non-receipt of the consideration as well, the onus shifted
upon the defendant to prove that it is the plaintiff who on receipt of the
total consideration of taka 15,000/- executed and registered the deed which he failed.

Foez Ahmed Vs.
Joynal Abedin & Ors 12 BLT (HCD)476

Sections-102, 103 & 104

Suit for
cancellation of Heba-bil-ewaz— The onus was upon the defendants according to
prove the gift has been made intentionally, voluntarily and the consideration
has passed.

Md. Nurul Islam
& Ors. Vs. Azimon Bewa 6BLT (HCD)-116

Section-102

Burden
of proof is that obligation to adduce evidence to the satisfaction of the court
in order to establish the existence or nonexistence of a fact contended by a
party. The provision as to the burden of proof is founded on the Rule ‘ei
incumbit probatio, qui dicit non qui negat”-’the burden of proving a fact rests
on the party who substantially assents of the affirmative issue and not upon
the party who denies it; for a negative is usually incapable of proof. This
Rule is derived from the Roman Law and is supportable not only on the ground of
fairness but also upon that of the greater practical difficulty which is
involved in proving a negative than in proving an affirmative. This Rule is an
ancient Rule founded on consideration of good sense and should not be departed
from without strong reasons.

Mohammad Azim &
Ors Vs. Doly Islam & Ors 7BLT (HCD)-164

Section- 103

Onus

Presumption of genuineness of Ext. 4, the pattani register, called for by the
plaintiff

The
plaintiff claimed that she took settlement of suit land by means a ‘Dhol fordi’
and Dakhila granted by the Midnapur Zamindari Company Ltd.—The appellate court
summarised its findings by way of stating that PW1 and PW2 were not competent
witnesses while the witnesses of the alleged settlement Kalipada Ghose and
Korban Ali were not cited as witnesses. There was no evidence that the
tahsilder who allegedly gave the settlement had any authority to do so. The
Dakhilas produced by the plaintiff were also not properly proved and the trial
court wrongly exhibited the ‘fordi’ and Dakhilas as the basis of settlement as
there was no proper proof of them — We may add that there is nothing on record
to relate Ext.4 to the settlement claimed by the. plaintiff. Again, the
hukumnama and other documents of settlement in favour of the plaintiff were for
the plaintiff to produce. In the absence of proof of existence of the said
documents the defendants could not be supposed to be in a position to produce
them. Thus the High Court Division had obviously given a wrong onus and drawn
an incorrect presumption of genuineness of Ext.4.

Bangladesh &
Anr. Vs. Abdul Latif Khan & Ors. 7BLT(AD)-208

Section-103

Onus—deed
of sale dated 20.03.1973 in question does not contain any recital which would
raise any doubt as to the transaction that it is not an out and out sale. It is
the opposite parties No. 1 and 2 who raised the issue and asked the court to
read the deed as a transaction of mortgage. They also claimed that opposite
party No. I on the same date executed in ‘Ekrarnama Ext. A agreeing to reconvey
the case land, Only on 28.02.1983, just four months before disposal of the
case, opposite party No. 1 executed and registered a deed of sale in favour of
the said land. Onus is therefore on opposite parties No. I and 2 to prove that
‘Ekrarnama Ext.A is genuine and executed on 20.03.1973 and that the sale deed
is not a colourable transaction.

Jahangir Alam Vs.
Sri Sailish Chandra & Ors. 9BLT (HCD)-78

Section-103

Burden of Proof -—Shahabuddin Ahmed through whom the
defendant got his initial knowledge of the ex. parte decree was not examined.
The defendant did not examine any witness to prove is definite date of
knowledge of the ex parte decree. As we find that summons and registered
notices were validly and legally served upon the defendants it was the duty of
the defendants to prove his initial date of knowledge Of the ex parte decree.

Mrs. Shamsun Nahar
Begum Vs. Salauddin Ahmed & Ors 8BLT (AD)-182

Section- 110

The presumption
under section 110 in this case would apply only if two conditions are satisfied
viz that the possession of the person claiming long possession in not prima
facie wrongful and secondly the title of the person in this case the plaintiff
despondent, against whom the long possession is claimed is not proved. The
courts below found that the defendant appellants are in possession but they are
not in possession to the knowledge of the real owner upon denying his title or
any kabuliyat or deed of settlement. On the other hand the plaintiff respondent
has proved their title by registered kabala executed on 13.11.1974 for valuable
consideration. The hits at the root of the claim by the defendant appellants on
the suit land on the basis of long possession since the courts below have
disbelieved their claim of title of the suit property, No doubt the defendant
appellants possession for a long time and by succession remains. But the claim
of long possession remains precarious because of the finding of title of the
suit land in favour of the plaintiff respondent by courts below.

Sree Mali Gouri Das
& Ors, Vs. A. B. Hasan Kabir & Ors. 11BLT (AD)87

Section-114 (g)

In this
case nowhere in the plaint it has stated that any of the attesting witnesses
was present at the time of finalisation of talk for entering into the alleged
agreement by the parties. The attesting witnesses appeared at the scene at a
subsequent stage only at the time of execution of the alleged bainapatra, which
is just a follow-up of the earlier proceedings. So, the earlier part of the
proceedings remains totally unexplained for reasons best known to the
plaintiff. The conspicuous absence of the plaintiff from the scene without any
justifiable reason appears to be a mystery that has not been dissolved any
cogent explanation and on that count the learned Court of appeal below was
perfectly justified in drawing an averse presumption under section 1 l4(g) of
the Evidence Act.

Abdur Rahim Vs.
Arifur Rahman & Ors 6BLT (HCD)-51

Section-114(g)

Suit for
redemption of mortgage — before the trial court from the side of the plaintiff
2 witnesses have been examined. P.W. 1 is the plaintiff himself and P.W. 2 is
one Chand Mia who is an attesting witness of the questioned document. The
scribe has not been examined and no explanation had been given from the side of
the plaintiff for his non-examination. The scribe ought to have been examined
to prove that when the document was written and executed the last portion
indicating the mortgage was there in the kabala and that has not been
subsequently inserted as alleged by the defence. This non-examination of the
scribe led to an adverse presumption against the plaintiff of the fact had he
been examined he would not have supported the plaintiffs version of the case of
mortgage.

Asmat Ali Vs. Abdur
Rafique Mridha & Ors. 9 BLT (AD)-12

Section- 114(g)

Before
the trial court from the side of the plaintiff 2 witnesses have been examined.
P.W. I is the Plaintiff himself and P.W. 2 is one Chand Mia who is an attesting
witness of the questioned document. The scribe has not been examined and no
explanation has been given from the side of the plaintiff for his non- examined
to prove that when the document was written and executed the last portion
indicating the mortgage was there in the kabala and that has not been
subsequently inserted as alleged by the defence. This non- examination of the
scribe led to an adverse presumption against the plaintiff to the fact that had
he been examination. The scribe ought to have been examined to prove that when
the document was written and executed the last portion indicating the mortgage
was there in the kabala and that has not been subsequently inserted as alleged
by the defence. This non-examination against the plaintiff to the fact that had
he been examined he would not have supported the plaintiff version of the case
of mortgage.

Asmat Ali Vs. Abdur
Rafique Mridha & Ors. 9BLT (AD)-77

Section-114(g)

We upon
considering the materials on record and considering that none of tile witness
including the husband Tuli and Moina was examined and due to their
non-examination presumption would be that had they been examine they would not
have supported the prosecution stow raises a serious doubt as to the truth of
the prosecution case.

Khan Yeakub Ali Vs.
The State & Ors 16 BLT (AD)255

Section-114(g)

The
adverse presumption in the background of illustration (g) of section 114 of the
Evidence Act can be drawn against the party or the parties in the suit if he or
they do not depose about a fact when he or they personally knowing the whole
circumstances of the case is not deposing in the case or that in a situation
when particular thing being exclusively known to or within the knowledge of a
party he ought to have appear before the Court to explain the same or a party
who had personal knowledge of the case, then there was necessity to go into the
witness box to depose about the fact which was within the exclusive knowledge
or matters about which suitor(s) alone has actual knowledge and he alone is
competent to state about the matter at the relevant time or that the suitor (s)
who is a material witness as regard particular mater then if not give evidence
or a party whose evidence is material does not go into witness box the Court in
such a situation can draw up an adverse presumption against such person(s) or
suitor(s).

Hajee Lal Miah Vs.
Nurul Amin & Ors. 13 BLT (AD)145

Section-114(g)

বিবাদী
দরখাস্তকারী এই মোকদ্দমায় মূল বিবাদী হওয়া সত্ত্বেও এবং ঘটনাবলী সম্পর্কে
সর্বাপেক্ষা ওয়াকিবহাল হওয়া সত্ত্বেও সে নিজে কোন সাক্ষ্য প্রদান করে নাই বা
সাক্ষ্য প্রদান না করিবার কোন কারণও আদালতের সম্মুখে উপস্থাপন করে নাই। এই
প্রসঙ্গে সাক্ষ্য আইনের ১১৪(জি) ধারার বিধান ও নীতি প্রনিধান যোগ্য।

Md. Motiar Rahrnan
Vs. Mst Asia Khatun & Ors 15 BLT (HCD)313

Section- 115

The
respondent voluntarily wanted to go retirement as his juniors had obtained
promotion. He clearly mentioned in his letter that he did not have the
requisite qualifying service to opt for retirement, even then he sought
permission for retirement upon special consideration. It was on such
representation the order of release was passed. He is now stopped to challenge
the release order. A party litigant cannot be permitted to assume in consistent
positions in court, to play—fast and loose, to blow hot & cold, to
approbate and reprobate to the detriment of his opponent.

Bangladesh Parjatan
Corporation & Ors. Vs. Md. Mafizur Rahman & Ors. 2BLT (AD)-49

Section-115

Whether suit is not barred by estoppel and
waiver.

The
plaintiff was threatened with dispossession in a summary way by the defendants
and it was under the instant threats of forcible dispossession, he had to pray
for yearly lease of the suit property for saving his possession, albeit ‘under
protest and lost no time in coming to the court for vindication of his
grievance— In the present case the plaintiff was always diligent in asserting
his own title in the suit property and he never abandoned his claim of
ownership over it nor the defendants were M/Sled by his prayer for annual lease
so as to change or alter their position to their detriment and the prayer for
temporary lease being obviously under protest and without any prejudice to the
rights of the parties, the doctrine of estoppel or waiver has no manner of
application in the present case.

Maron Mondal &
Ors. Vs. A. D. C. (Rev). 6BLT (HCD)-22

Section- 115

Pre-emptor
is a co-sharer to the case jote by inheritance and the pre-emptee is a stranger
to the case jote—In the instant case the preemptee of course, took such a plea
of the principles of waiver, estoppel and acquiescence in his written objection
and led some evidence. The pre-emptor, on the other hand, stoutly denied the
said assertion and stated that the sale took place stealthily and beyond his
knowledge without serving the statutory notice upon him and consequently he had
no knowledge about it for quite a long time and he filed the pre-emption case
promptly on obtaining the certified copy of the sale deed, following his
knowledge about it—Held: Section 96 of the State Acquisition Tenancy Act being
a beneficial legislation intended for the convenience of co-sharer of a holding
as well as the convenience of tenants holding land contiguous to the land
transferred, any provision of law barring the claim of pre-emption must be
strictly construed, judged from that angle of vision the

claim of
waiver and acquiescence made by the pre-emptee must be rejected as being
totally unsubstantiated.

M. M. Ahmed Sarker
Vs. A. Khaleque & Ors. 6BLT (HCD)-66

Section-115

The
appellant as a Government servant did not go for voluntary retirement and he
was given compulsory retirement from service as a measure of punishment and as
such the principle of estoppel is not attracted in the facts and circumstances
of the case in as much as the appellant under compelling circumstances had to
accept the financial benefits from the Government as contended by the
appellant’s counsel.

Held :
We are of the opinion that acceptance of pensionary benefits in the facts and
circumstances of the present case cannot be accepted as estoppel within the
meaning of section 115 of the Evidence Act.

Md. Jahangir Kabir
Vs. Bangladesh 4BLT (AD)-14

Section—115

Whether an attesting witness is bound by the
contents of document.

There is
no evidence in the instant case that Sheikh Bagu had any knowledge about the
contents of the document attest ed by him beyond his mere attestation.
Therefore it cannot be said that Sheikh Bagu was in any way bound by the trans
action by the kabala in question.

Amanatullah &
Ors. Vs. Ali Mohammad Bhuiyan & Anr. 6BLT (AD)-1

Section-115

Doctrine of
Promissory Estoppel

Plaintiff
remained in possession over suit property since the year 1968 first as a tenant
under Md. Amin and then under the Government as an allottee and plaintiff paid
Government including all arrear rents and Government also took decision that
the suit property would be sold to plaintiff on the price fixed by it, Equity
and natural justice demand that plaintiff is not be. deprived of the suit
property. Government, thus is very much bound by its promise  to sell the property in favour of plaintiff
and it cannot now fall back and also cannot say that the suit property would be
put to auction—on the strength “Doctrine of Promissory Estoppel” defendant
Government is under a legal duty to execute a document of title with respect to
suit property on acceptance of the price fixed by valuation committee
constituted by defendant Government and the selling of suit property by auction
to anybody else otherwise than plaintiff is illegal.

Govt. of Bangladesh
Vs. A.S. M. Ferojuddin Bhuiyan 9BLT (HCD)-149

Section —115

Admittedly,
Fourth-Twelfth Defendants- Opposite parties as Plaintiffs Instituted a suit
being Title Suit No.306 of 1978 in the Sixth Court of Munsif at Dhaka for
declaration that exparte decree passed in Title Suit No. 195 of 1967 is void,
fraudulent, in-operative, illegal and not binding upon Plaintiffs. In the
plaint, Plaintiff-Petitioner Sreemati Han Rani Basak had been depicted as
daughter of Kala Chand Basak, resident of 26, Mohajanpur Lane, Police Station
Sutrapur, Dhaka. In the face of showing Plaintiff-Petitioner Sreemati Han Rani
Basak as daughter of Kala Chand Basak it does not lie in the mouth of
Fourth-Twelfth Defendants-opposite parties to install the case that
plaintiff-petitioner Han Rani Basak is not the daughter of Kala Chand Basak and
Fourth-Twelfth Defendants are bound by their admission and they Stand
estopped/precluded to say that plaintiff is not the daughter of Kala Chand
Basak.

Sree Narayan Chandra
Basak & Ors Vs. Govt. of Bangladesh & Ors (HCD)506

Section-115 read with State Acquisition
and Tenancy Act, 1950 Section-95 and 95A

The
plaintiff attested the Kabala of defendant No. 1, exhibit A(2). The plaintiff
explained in his deposition that he put his signature on the request of the
defendant and that he thought that the deed was in respect of other land. He
also stated that they live as neighbors—by attestation to deed exhibit A(2),
the plaintiff cannot be held to have knowledge of the contents of the deed,
exhibit A (2) in order to be estopped under Section- 115 of the Evidence Act
for claiming restoration of the suit and under Section-95 and 95A of the State
Acquisition and Tenancy Act, 1950.

Mrs. Wahida Begum
& Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238

Section-135

When there are two sets of defendants to
contest the suit and if one set of defendants goes to supports the claim of the
plaintiffs’ wholly or in part, when in that case that set of defendants should
be asked to cross-examine the witness of the plaintiff first as contended by
the petitioner’s Advocate.

Held :
Admittedly there is nothing in the Code specifically as to which of the
defendants should cross-examine any prosecution witness first and hence, a
court is to fall back on section 135 of the Evidence Act which speaks of the
discretion of the court to fix the order of production and examination of
witnesses, of course such discretion should be exercised judicially and not
arbitrarily in the facts and circumstances of each case.

Shamsul Alam Ors.
Choudhury & Ors. Vs Amirul Rahman 3BLT (HCD)-170

Section-138

Examination of
witnesses and their cross-examination

The
right of the adverse party to cross- examine a witness is never confined to the
facts deposed to by the witness in his examination-in-chief but it extends to
all matters relating to the suit. The adverse party has the right to
cross-examine a witness on all facts relevant in the suit.

Md. Khalilur Rahman
Vs. Md. Asgar Ali 7BLT (HCD)-352

Section-138

Principle on
Re-Examination

It is
well-settled that where is no ambiguity or where there is nothing to explain,
questions which are to be put in reexamination with the sole object of giving a
chance to the witness to undo the effect of a previous statement cannot be
allowed. To be precise, re-examination shall not be allowed to destroy the
effect of cross-examination.

Ihteshanur Rahman
Vs. Most. Masuda Khatun & Ors. 6BLT (HCD)-47

Section-167

Section
167 of the Evidence Act provides that if there is sufficient evidence to
justify the decision then improper admission or rejection of the evidence will
be no ground for a new trial.

Jamaluddin &
Ors. Vs. Abdul Majid & Ors. 6BLT (AD)-137

Burden of proof

In the
present case, the material question of waiver by the pre-emptor and refusal to
purchase the case land is the material issue—In this case the onus lies on the
pre–emptee to prove the case of waiver as because it is the pre-emptie’s
assertion that the preemptor refused to purchase when specifically requested to
do so before the sale.

Most. Rokeya Begum
Vs. Md. Abu Zaher & Ors 8BLT (AD)-134

The basic document of Title—doubtful nature

The
learned Judges of the High Court Division found that the suit land admittedly
belonged to defendant Nos. 1-34. The plaintiffs asseted that they purchased the
suit land in auction in Certificate case No. 10168 of 195060 and got possession
therein. The plaintiffs produced photocopies of sale certificate and writ of
delivery of possession which were not admitted in evidence by the trial court.
The lower appellate court. however, accepted the photocopies as additional
evidences. The learned Judges of the High Court Division found that the trial
Court gave proper reasons for not accepting those photocopies as there was no
explanation as to what happened to the original copies of the sale certificate
and delivery of possession and that there was no evidence on record to show
that any witness testified that those were the photocopies of the originals.
Secondary evidence was wrongly admitted without any cogent explanation. There
was no statement in the plaint or in the deposition that the originals were
lost or destroyed. Further from the evidence on record it was found by the
learned Judges of the High Court Division that plaintiff Nos. 3, 4, 6 and 14
were not born at the time of auction sale and as such the question of auction
purchase in the name of unborn person does not arise. The learned Judges
themselves also saw the photocopies Ext. 2 and 2a (as marked by lower appellate
court) and found that those photocopies were different from those filed in the
trial court. The learned Judges or the High Court Division rightly reversed the
finding of the lower appellate court. It further appears from the record that
the certificate case was started in 1959-60, but the plaintiffs claimed to have
purchased the suit land on 16.06.1979 and got possession on 20.02.1981. The
sale was set aside by the certificate officer and the lower appellate court did
not consider this aspect at all. The basic document of title of the plaintiffs
being of a highly doubtful nature the learned Judges committed no illegality in
setting aside the Judgment of the lower appellate court and restoring those the
trial court.

Kazi Abdul Khaleque
& Ors. Vs. Abdul Kader & Ors 8BLT (M))-150

Circumstantial Evidence

P.W.4
Abdul Aziz who claimed to be a night-guard in the area of Armenitola and the
stated that he saw deceased Akber Shekh and Sultan Ahmed P.W.2 to go together
by rickshaw towards Anananda Moyee School. At United Transport Agency, very
near to the place of occurrence he heard the firing sound and saw these two
accused Ali Jan and Fazlu, Asad, Naim and two others running away crossing the
wall of Armanitola field. It is not denied that near the place of occurrence
there is Armanitola Math having a boundary wall. P.Ws. 14 and 6 have stated
that they got this information from p.W.4 in their house and in hospital
immediately after the occurrence. All other P.Ws. also heard from P.W.4 that he
saw these two accused running away from the place of occurrence-This strong
circum-stance lends support to the presence of the accused- persons at night in
the plan of occurrence.

Md. Nurul Alam Vs.
Ali Jan & Ors. 8BLT(AD)-23

Ends of Justice

Ends of
justice can never be the caprice or sweet will of a court. The court must
proceed on sound principles.

F. Alam & Ors.
Vs. Zobaida Nalmr & Ors. 5BLT (AD)-88

Estoppel or Waiver of Legal Dues

It
appears to us that the decree which the respondent obtained was an inexcusable
decree. He could not have compelled the Government to reinstate him in service
on the basis of that decree. If he wanted his full relief he should have
preferred an appeal against the said decree re-agitating the question of his
reinstatement in service, arrear salary and promotion. But once the Government
takes a decision to reinstate him in service, whether by way of executing an
otherwise inexcusable decree or by its own volition, without reappointing him
or giving him any break in service, the respondent will b deemed to be in
service throughout the period of his removal. Invalidation of the order of
removal by the Government itself means as if no order of removal was passed.
The incumbent continues in service. Being in service, salary is his due. There
can be no waiver of his legal dues. The question of estoppel also does not
arise.

Government of
Bangladesh Vs. Shamsuddin Ahmed 7BLT (AD)-260

Essentials of Adverse Possession

Adverse
possession must be hostile, notorious, continuous uninterrupted and actual—in
the instant ease defendants witness D.W. I himself admits plaintiffs possession
before their claim of adverse possession— adverse possession must be proved to
have been computed for 12 years before Filing of the suit—relied on 19 DLR-912,
I DLR (Dhaka) P-395 and 49 DLR (AD) 61.

Md. Bahar Ali Sarder
& Ors Vs. Halima Khatoon & Anr 6BLT (HCD)-31

Prima facie title

The
lower appellate Court has rightly noticed that since the defendant admitted
that Harish Chandra Mistry was the C. S. recorded tenant of the suit plot being
C. S. Khatian No.272 and plot No.1689 measuring .57 decimals there was no
evidence how Atul Behari, Bhupati Mohan Sarker and Haripada Sarker could be the
owners of the suit land. The defendant did not disclosed how the said Atul
Behari Sarker, Bhupati Mohan Sarker and Haripada Sarker became the owners of
the suit land. D. W. 1, could not explain as to how the defendant got the suit
land. He has no knowledge about the S. A. recorded tenants and the lower
appellate Court has correctly held that in the absence of any evidence it
cannot be held that Atul Behari Sarker, Bhupati Mohan Sarker and Haripad Sarker
were the owners of the suit land. It is therefore clear from the genealogy of
the plaintiffs that the plaintiffs are the successive heirs of the admitted C.
S. recorded owner Hans Chandra Mistry and therefore the plaintiffs have proved
their prima facie title in the suit land.

Md. Abdul Baten Vs.
Vebla Chandra Mistry Moolin & ors. 11BLT (HCD)-287.