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IN the SUPREME COURT of BANGLADESH APPELLATE DIVISION (Civil) Present: Md

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IN the SUPREME COURT of BANGLADESH APPELLATE DIVISION (Civil) Present: Md 430 State =VS= Dafader Marfoth Ali Shah & ors (S. K. Sinha, J) (Minority View) 4 LM (AD) 2018 (1) IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (Civil) Present: Md. Muzammel Hossain, CJ The State Surendra Kumar Sinha, J ... Appellant Md. Abdul Wahhab Miah, J Nazmun Ara Sultana, J Syed Mahmud Hossain, J Muhammad Imman Ali, J Date of hearing : =VS= 15.01.2013, 22.01.2013, 23.01.2013, 29.01.2013, 30.01.2013, 12.02.2013, 13.02.2013, 19.02.2013, 26.02.2013, 27.02.2013, 16.04.2013, 17.04.2013. Date of judgment : 30.04.2013. Dafader Marfoth Ali Shah and others Result: Allowed ... Respondents CRIMINAL APPEAL NO.23 of 2011 (From the judgment and order dated 28.08.2008 passed by the High Court Division in Death Reference No.150 of 2004 heard along with Criminal Appeal No.4739 of 2004, Criminal Appeal No.4740 of 2004, Jail Appeal No.118 of 2006 and Jail Appeal No.597 of 2007 accepting the death reference in part and allowing the appeals.) ADVOCATES WHO APPEARED IN THIS CASE: For the Appellant : Mr. Mahbubey Alam, Attorney General with Mr. M. K. Rahman, Additional Attorney General, Mr. Momtazuddin Fakir, Additional Attorney General with Mothahar Hossain Saju, Deputy Attorney General, Mr. Bishwajit Deb Nath, Deputy Attorney General, Mr. Ekramul Haque, Deputy Attorney General with Mr. Md. Masud Hasan Chowdhury, Assistant Attorney General, Mr. Shaikat Basu, Assistant Attorney General, Mrs. Mahfuza Begum, Assistant Attorney General and Mr. Bashir Ahmed, Assistant Attorney General instructed by Mrs. Sufia Khatun, Advocate-on-Record. Government Chief Prosecutor : Mr. Anisul Huq, Senior Advocate with Mr. Nurul Islam Sujan, Advocate and Mr. Sheikh Fazle-Noor-Taposh, Advocate as Government-Prosecutor. As State Counsel to defend the respondents (appointed by the Court) : Mr. Abdullah-Al-Mamun, Advocate. Evidence Act, 1872 Section 57 Courts can take judicial notice of the ordinary course of events– Courts can take judicial notice of the ordinary course of events. That a matter is judicially noticed means that it is taken as true without the necessity of being formally proved on evidence. Taylor in his Law of Evidence states that a man is not the father of a child, where non-access is already proved until within six months of the woman’s delivery. Nor is it necessary to prove the course of the heavenly bodies, or the like, that a matter is judicially noticeable means that it is taken without offering of evidence by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. A proclamation of emergency is a matter of general information of which a court can take judicial notice. A matter of public history may be such a fact (Wigmore section 2567). Facts of which judicial notice may be taken are not limited to those of the nature specifically mentioned in clauses (1) to (13) of section 57 of the Evidence Act.... (Surendra Kumar Sinha, J). ...(Para-15) The Law Messenger 4 LM (AD) 2018 (1) State =VS= Dafader Marfoth Ali Shah & ors (S. K. Sinha, J) (Minority View) 431 Penal Code, 1860 Section 109 Offence of abetement– In order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement there must be evidence that an act was abetted and that it was abetted by the person charged with. The act abetted must, moreover, amount to a crime, and in order to connect the abettor with the crime, it is not sufficient to prove that he had taken part in those steps of the transaction which are innocent, but it must also be proved that he had deliberately taken part in those steps of the transaction which constituted an offence. Section 109 may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by illegal omission.... (Surendra Kumar Sinha, J). ...(Para-23) Penal Code, 1860 Section 120A and 120B The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts– The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable. ... (Surendra Kumar Sinha, J). ...(Para-34) Penal Code, 1860 Section 107, 109 and 120B In order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy– Offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place inpursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it.... (Surendra Kumar Sinha, J). ...(Para-35) The Law Messenger 432 State =VS= Dafader Marfoth Ali Shah & ors (S. K. Sinha, J) (Minority View) 4 LM (AD) 2018 (1) Penal Code, 1860 Section 34 read with Evidence Act, 1872 Section 10 The ‘common intention’ which is a constituent of proving an offence of criminal conspiracy is different from the one ‘common intention’ used in section 34 of the Penal Code. The expression ‘common intention’ used in section 10 of the Evidence Act signifies a common intention existing at the time when the thing was said, done or written by one of the conspirators but the ‘common intention’ referred to in section 34 is doing of separate acts similar or diverse, by several persons; if all are done in furtherance of a common intention. ... (Surendra Kumar Sinha, J). ...(Para-41) The Constitution of Bangladesh Article 104 In exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. The Court is not powerless to undo any injustice caused to a party– The Constitution is a social document, and Article 104 is not meant for mere adorning the Constitution. The Constituent Assembly felt that a provision like the one should be kept in the Constitution so that in exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Apart from the powers given to this Division by the Constitution, a Court of law always retains some inherent powers. It is, therefore, said, the Court is not powerless to undo any injustice caused to a party. Shutting of judicial eyes even after detection of palpable injustice is in one sense denial of justice. If the Judges do not rise to the occasion to which they are oath bound to do justice, they would commit the similar illegality as the one committed by a litigant. Court’s practical approach would be towards doing justice without bothering too much about any one’s perception. We should never compromise to do justice. ... (Surendra Kumar Sinha, J) (Minority view). ...(Para-126) The Supreme Court of Bangladesh (Appellate Division) Rules, 1988 Rule 13 of Order XXIII and rule 5 of Order XX Rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division’s Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point– The evidence on record proved beyond doubt that the killing was perpetrated in pursuance of a conspiracy and therefore, it is consonance to law and justice that the respondents should be awarded a legal conviction of an offence on the basis of the evidence on record. If a graver sentence is provided for murder in pursuance of conspiracy, the question of prejudice would have arisen. Here the respondents have not acquired any right against the acquittal on the charge of conspiracy.
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