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.
