Constitution of BangladeshArticle 102
Election Tribunal- Election Dispute-Recounting of ballot papers- It is within the competence of the Election Tribunal to pass order in an appropriate case for recounting of ballot papers for the the purpose of proper adjudication of dispute. SM Fazlul Haque Manikvs Md Habibullah Bahar (Civil) ----p 66 Evidence Act (I of 1872) Section 34 Circumstantial evidence -In a case based on circumstantial evidence before any hypothesis of guilt is drawn up on the circumstances the legal requirements is to prove the circumstances themselves like any other fact beyond reasonable ground doubt. State vs Resalder Moslemuddin (criminal)--------p 310 Section 106 In absence of evidence as to the presence of the condemned-petitioner in the occurrence house with his family , the condemned petitioner cannot be taken to be liable to prove the fact as to how his wife and daughter met their death. The onus of proof that it was the condemned petitioner and one else who killed his wife and daughter was all along on the prosecution and it never shifted on the condemned petitioner in absence of any proof beyond reasonable doubt that he was present in the occurrence house when the occurrence took place. Hasan Malik @Titu vs State (criminal)----- 303 Section 114(g) Benefit of doubt- It was the failure on the part of the investigating officer to detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient a attitude from the Court because of there involvement in such horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali shah and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Thereof , the two condemned prisoners are entitled to be acquitted on the principle of benefit of doubt. State vs Resalder Moslemuddin (criminal)----------p 310 Section 134 The accused persons did not deny the occurrence but they denied there participation. Apart from PW 2 and PW 7 there are independent eye-witness like PW 6 who appeared on scene immediately after the occurrence and PW 8 who deposed and corroborated (Support with evidence or authority or make more certain or confirm) the informant. In the case of Khoka vs State reported in 4 BLC (AD) 86 this Division held that believing only one eye-witness conviction is legally permissible and conviction can be based on sole evidence of one witness. Zwkir Hossain vs State (Criminal) ----p 70 Penal Code (XLV of 1860) Section 302/109 Circumstances even if found to have been proved, in that case too there is a missing link or , in other word , it can be safely said that the circumstances available in the instant case even if proved by the prosecution in that too those cannot lead us to any irresistible conclusion that there was no other hypothesis except the guilty of the accused. State vs Resalder Moslemuddin (criminal)----------p 310 Code of Criminal Procedure (V of 1898) Section 161 Under certain circumstances delay of few days even, may render the testimonies of the prosecution witness doubtful but yet there may be cases in which delay of years together may not do so. State vs Resalder Moslemuddin (criminal)----------p 310 Section 161 Benefit of doubt - It was the failure on the part of investigating officer to detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient attitude from the Court because of there involvement in such a horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali Sha and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Therefore , the two condemned prisoners are entitled to be acquitted on the principle of the benefit of doubt. State vs Resalder Moslemuddin (criminal)----------p 310 section 265C & 561A Procedural law is generally applied retrospectively. In the cases here neither cognizance has been taken nor charge framed. As such it cannot be said that proceeding was pending before the Magistrate, when the law comes into operation. Shafiqul Islam(Md) vs State (Criminal)--------------- p 280Section 561A Nor this sections put any embargo on the power of a police officer to make search seizure or to arrest any person or to investing into a case and there is also nothing in the said Ain requiring a police officer to obtain prior permission of the Director General Madak Drabya Niantron Adhidoptor to investigate in a case or to search, seize and to arrest any person who has committed or is committing or is likely to commit an offence under the said Ain. Liton Bhuiya (Md) vs State-----------------------p 277 Code of Civil Procedure (V of 1908) Section 115 At the end of the day it was submitted on behalf of the petitioner that the suit may be sent back to the trial Court on remand for fresh decision on taking evidence for the ends of justice. I find no merit in this contention since both oral and documentary evidence are available to decide the case on merit. Abul Kalam Mridha(Md.) vs Md Moslem Miah (civil) ---------- 273 Order I Rule 9 Since objection as to non-joinder of parties was not taken at the earliest possible opportunity such objection cannot be taken subsequently and such right of the defendant shall be deemed to have been waived. Order I, rule 9 of the civil Procedure provides that no suit shall be defeated by reason of mis-joinder or non-joinder of parties and Rule 13nof the said Order provides that all the objections on the grounds of non-joinder or mis-joinder shall be taken at the earliest possible opportunity and such objection not so taken shall be deemed (Keep in mind or convey as a conviction or view )to have been waived. Ali Azam saial vs Joynal Abedin Saial (Civil) -------------------299 Order IX rule 9 On 24-7-2001 Miscellaneous case no. 11 0f 2000 (Pre-emption) was dismissed for default for the cause of the appearance of pre-emption. Thereinafter on 20-8-2001 Miscellaneo us Case No 27 of the 2001 under order IX , rule of the Code of Civil Procedure was filed within time. The ground urged in the application appear to be satisfactory but the learned judge without assigning any cogent reson disbelieved the grounds of the application and rejected the case. On the contrary, learned Judge of the Court of appeal below without deciding the merit of the application under Order IX , rule 9 of Code of Civil Procedure decided the merit of miscellaneous case for pre-emption which is not at all permissible in law. Amena Begum vs Md Ruhul Amin (Civil) -----------310 The may issue will be full fill soon.
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It is very important to understand Dying Declaration in Bangladesh with its case laws. Without case laws nothing is fulfill under law. So, I am going to discuss Dying declaration and Bangladesh view on the case laws.
Dying DeclarationJudge’s failure to warn the jury that the declaration was not liable to cross-examination does not vitiate the trial. Abdur Rahaman Vs. State(1959) 11 DLR 494 Recorded in English without the language of the deceased- who made the statement in Bengali- Admissible.Where the dying declaration made in Bengali has been recorded in English without improving on the language of the deceased, such a dying declaration suffers from no infirmity and is admissible in evidence. State Vs. Bahar Ali (1959) 11 DLR 258. Record does not contain the exact words of the deceased –Record unreliable. Omar Ali Vs. State (1961) 13 DLR 251. Omission to mention in the dying declaration the name of the one of the three witnesses due to serious physical conditions is not of much significance. Gulam Hussain Vs. Zainullah (1961) 13 DLR (SC) 147. Made in the course of police investigation- Admissible.A dying declaration though made in course of investigation to which clause 32(I) applies, would not be hit by section 162 of the criminal procedure code. Shahidullah Khan Vs. State (1960) 12 DLR When alone can form the basis of conventionIf a dying declaration is found to be genuine and true, it can by itself from a satisfactory basis for conviction. Some of the main tests for determining the genuineness of dying declaration are : Whether intrinsically it rings true, whether there is chance of mistake on the part of the deceased in identifying or naming his assailants and whether it is free from promoting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case. If a dying declaration stands the normal test for judging its veracity it becomes wholly reliable piece of evidence, but if it does not, it is far worse than an ordinary statement of witness because the make of the dying declaration was not subject to cross-examination and not under an oath. This is not saying that if a dying declaration is false in some particulars, it must away be rejected, but most certainly if it is found that deceased in his statement has indulged in telling lies even partially, that would put the courts on ground against accepting the rest of the statement without any corroboration, and the result may well be that the whole of the statement is rejected. Taj Mohmud Vs. State (1960) 12 DLR (WP) 30 Dying Declaration -- AdmissibilityA dying declaration is inadmissible when upon its face it is incomplete and no one can tell what the deceased was about to add. It is a serious error to admit a dying declaration in part. It is further and more serious error not to point out to the jury that it had not been liable to cross-examination. Cyril Waugh Vs. King (1957) 9 DLR (PC) 353 Dying declaration need not be identical and of the same but if substance of the same fulfills other conditions to act upon such declaration, then it is admissible in evidence. A detailed statement cannot necessarily lead to the inference that the statement is fabricate one. It is now well settled that a dying declaration, oral or written, when established as true can form the sole basis of conviction. State Vs. Moinul Haque (2008) 60 DLR 298 --- While dealing with the question of dying declaration the judge has to discuss this matter from four stand-points: 1. Whether the maker had the physical capability; 2. Whether the witnesses who heard the deceased making the statement heard him correctly; 3. The judge has to deal with the question whether the maker had any opportunity to recognise the assailants; 4. There is no rule of law that a dying declaration must be corroborated before it can be acted upon. Ajmat Ali Vs. Crown (1955) 7 DLR 356. Dying Declaration are admitted into evidence on principle of necessity, but a dying declaration can be made the basis of conviction only when the jury are satisfied beyond all shadow of doubt that the man who made the dying declaration had a good opportunity of recognising his assailant. Ajmat Ali Vs. Crown (1955) 7 DLR 356. Related Article 1. Dying Declaration 2. Dying Declaration:: Bangladeshi View (Part-2) Related articles
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AuthorMd. Shahnewaz Zwaki Advocate The Supreme Court of Bangladesh (High Court Division). Archives
June 2020
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