When claims of the parties are to be settled on the basis of accounting, the liability shall be a civil liability. When both the parties to any dispute submit their claim before the Arbitration Board, decision of the Arbitration Board is binding of both the parties. Any failure on the part of a party will be a civil liability and cannot be considered as a criminal offence............................(5) 

The Non-Agricultural Tenancy Act, 1949 (Act No. XXIII of 1949); section 24

The State Acqui­sition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951); section 96

In a case of pre-emption filed under section 24 of the Non-Agricultural Tenancy Act if a co-sharer tenant owns a portion of land in any plot, he is to be treated as co-sharer in the entire plot even if the land of that plot is recorded in more than one khatian. Therefore, in the event of transfer of a portion of land of that plot appertaining to another Khatian a co-sharer tenant can file a pre­emption case under section 24 of the Non-Agricultural Tenancy Act notwithstanding the fact that he does not have any interest in that khatian. The words "one or more co-sharer tenants of such land" occurring in section 24 of the Non-Agricultural Tenancy Act means a co-sharer in the plot not the holding as mentioned in section 96 of the State Acquisition and Tenancy Act.…………………………………(12) 

Confession and second confession

A confession is an admission made at any time by a person charged with a crime, stating, or suggesting the inference, that he committed the crime. In criminal cases a confession made by an accused voluntarily is evidence against him of the facts stated. The ground of reception of voluntary confession is usually said to be the presumption that no person will make a statement against his interest unless it is true; at all events, such confession may reasonably be taken to be true as against himself. A confession duly made and satisfactorily proved is, in general, sufficient to warrant a conviction without corroboration.……………………(5)

Before discarding any confession, the trial court needs to consider the ground that the confession was not voluntary or it was inculpatory in nature. If any accused fails to retract his first confession and then makes another confession, the latter statement cannot be taken as a confessional statement in the eye of law in presence of earlier statement and because the statement is exculpatory in nature. This second statement cannot be taken as the basis for the conviction. The trial court is not justified in relying upon the second statement on the ground that this statement corroborates the injuries.……………………(5)

Burden of proof

Under the prevailing system of the administration of criminal justice, the initial onus to prove the charge of death of a victim is upon the prosecution. As regards the initial burden, the views expressed by the High Court Division are partially correct. It held, "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. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scale the evidence adduced by the procession in scales the evidence adduced by the prosecution in proving defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court my entertain same reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi"…….....................(6)

Burden of proof in spouse killing case

There are exceptions to the general rule that the prosecution is required to prove the charge against the accused beyond shadow of doubt. In respect of a spouse killing case, where the victim was in the company of the husband or the wife, the spouse is under an obligation to account for the cause of death and a special onus lies upon him/her to prove the cause of death and in the absence of such explanation, the court may draw an adverse inference upon him/her. This is because of the fact that the spouse was presumed to be in the company of the victim unless it is proved otherwise secondly in such type of incident, it is difficult on the part of the prosecution to lead direct evidence to prove the charge; and the inmates of the house who are near ones of the accused normally do not want to depose against the accused and try to suppress the real incident. There is a subtle but fundamental distinction between the degree of certainty required in cases where the burden of proving a fact is on the prosecution and a fact where the burden is on the accused. When the burden of fact is on the prosecution, the case must be proved beyond a reasonable doubt. When, however, the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt, or in, default to incur a verdict of guilty, it is sufficient, if he, succeeds in proving, a prima facie case for, then the burden of such issue is shifted on the prosecution, which has still to, discharge its original onus that never shifts…………………(8)

Burden of proof and presumption of innocence

Under the prevailing system of the administration of criminal justice, the initial onus to prove the charge of death of a victim is upon the prosecution. The burden of proof on the accused is not so onerous as it is on the prosecution, which must prove the offence beyond any reasonable doubt. If the accused proves that the probabilities of the case are greater on his side, the burden stands discharged. If the court is satisfied from the evidence, the examination of the accused and the evidence adduced by him, or from circumstances bringing the case within the exception or the plea taken by him has been proved, or upon a review of all the evidence, both the prosecution and the defence, if any, is left in reasonable doubt whether such circumstances do exist or not, the accused is entitled to get the benefit of doubt……….(6 & 10)

Plea of alibi

The theory of an alibi is that the fact of presence elsewhere is essentially inconsistent with presence at the place and time alleged, and therefore, with personal participation in the act. The credibility of an alibi is greatly strengthened, if it be set up at the moment when the accusation is first made, and be consistently maintained throughout the subsequent proceedings. On the other hand, it is a material circumstance to lessen the weight of this defence if it be not resorted to until sometime after the charge has been made. An alibi, not set up at the earliest stage, is, in most cases, unconvincing, in proving the plea of alibi, the accused need not be required to prove the exact time and every moment of time involved in order to sustain his defence. It is sufficient for him to raise a reasonable doubt of his presence at the scene of occurrence at the time that it was committed. But, it must cover the time when the offence is shown to have been committed, so as to preclude the possibility of the accused's presence at the place of the crime at the relevant time. Law does not expect the same standard of proof from the accused as from the prosecution………………………(12)

What does voluntary mean in respect of a confession?

The word voluntary used in respect of a confession, means a confession not caused by inducement, threat or promise.…………………….(19)

Role of the appellate court while reversing an order of acquittal

In reversing an order of acquittal, the appellate court should be slow and circumspect to disturb a finding of fact but if it is of the opinion that the finding of fact is wrong and not borne out by the evidence, there is no limitation on its power to interfere with the order of acquittal. An accused starts with a presumption of innocence when he is put up for trial and this presumption of acquittal should not be lightly interfered with by this Division because, if two views of the matter are possible, a view favourable to the accused should be taken. The presumption of innocence has to be kept in mind especially when the accused has been acquitted by the appellate court after examination of the entire evidence.………………………..(21) 

The Code of Civil Procedure, 1908 (Act No. V of 1908); section 115

The Evidence Act, 1872 (Act No. I of 1872); section 106

Burden of proof

In the absence of evidence as to the presence of the condemned-petitioner in the place of occurrence with his family, the condemned-petitioner can not be taken to be liable to prove the fact as to how his wife and 3(three) year old daughter met their death by invoking section 106 of the Evidence Act. The onus of proof that it was the condemned-petitioner and none else who killed the wife and daughter was all along on the prosecution and it never shifted on the condemned-petitioner in the absence of any proof beyond reasonable doubt that he was present in the occurrence house when the occurrence took place. It is all the more difficult for the prosecution to press section 106 into service when the petitioner was also prosecuted for the murder of his baby daughter at the same time………………………………………….(7) 

Framing of charge in a criminal trial

The object of framing charge in a criminal trial is to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet or in the alternative, to warn the accused of the case he is to answer. It shall contain the nature and the particulars of the offence by name, the date, time and place. The accused is entitled to know with accuracy and certainty the exact, nature of the charge brought against him so that he can take proper defence. Unless he has this knowledge, he will be prejudiced in his defence. So, framing of a proper charge is vital to a criminal trial and this is a matter on which the court should give careful attention. Therefore, if the charge remains vague, the necessary ingredients of the offence to which the accused is convicted are not brought out or if the place and time of occurrence have not been brought with provision, obviously the charge will be defective. Failure to state that fact would render the trial of the accused in some cases defective. Though section 537 Cr.P.C. provides that by reason of error or omission in the charge the conviction shall not be reversed and altered, this being a general provision, this section does not supersede the provisions relating to the contents of a charge contained in sections 221, 222, and 223 of the Code of Criminal Procedure, inasmuch as, section 537 states "subject to the provisions hereinbefore contained", that is to say, the aforesaid section will prevail over section 537…………………………(7)

No defect or irregularity in the form of the charge will affect a decision unless failure of justice has been caused……………………………(6)

The Code of Criminal Procedure, 1898 (Act No. V of 1898); section 342

Section 342 Cr.P.C. requires the trial Court to examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him. The substance of this examination is that the principles of natural justice should not be violated before convicting an accused of a charge. Therefore, it is incumbent upon the court to draw to the attention of the accused the incriminating evidence which is on record and to ask him to explain his position against this indiscriminating evidence. If the accused is not afforded that opportunity, though he has the liberty to ask the appellate court to place him in the same position as he would have  been in had he been asked, normally an accused does not make such claim. He is also entitled to ask the appellate court to take the explanation that he would have given in the first court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along……………………………….(10)

Section 342 Cr.P.C. enjoins upon the trial Court the duty of placing before the accused the circumstances appearing against him in order that he may be given opportunity of explaining them. The examination of an accused under this provision is not intended to be an idle formality; it has to be carried out in the interest of justice and fair play to the accused. In the case in hand the trial court treated the examination as one of mere routine work. This examination in a slipshod manner without drawing the attention of the appellants to incriminating materials on record certainly prejudiced them. True, every error or omission in complying with the requirements of section 342 does not necessarily vitiate the trial, some errors are curable. The question whether the trial of the accused has been vitiated depends in each case upon the degree of error and whether prejudice has been or is likely to have been caused to the accused. The Court is required, to see, that no prejudice or injustice is caused to the accused. If there is complete lack of any reference to the adverse circumstances which form the basis of the conclusions of the trial Court, it undoubtedly is a serious irregularity and cannot be lightly ignored.……………………….(11)

The object of section 342 is to afford to the accused an opportunity of showing that the circumstances relied upon by the prosecution which may be prima-facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. The accused must be given clear notice of the circumstances and must be given the opportunity to render such explanation as he can of those circumstances. It follows as a necessary corollary there from that each material circumstance appearing in evidence against him is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if that is shown to have prejudiced the accused……………….(12)

The object and purpose of section 342 as set up in its opening words, for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the attention of the accused must be drawn to every incriminating material to enable him to explain the same and the failure of which would amount to an incurable irregularity. If an important piece of evidence is not put to the accused and he is not given an opportunity to explain that evidence, it cannot be used against him. Therefore, the examination under the section is to give the accused an opportunity to explain the case made against him………………………………(15)

This examination and reply to the examination can be taken into consideration in judging the innocence of the accused or guilt to the charge. Therefore, there is no gainsaying that law enjoins upon the court the duty of placing before the appellants the circumstances, appearing against, them in order that they may be given an opportunity of explaining them. Where the court does not draw the attention of the appellants about the incriminating materials how then will they give explanation to the court unless the specific point or points which weigh against them are mentioned. If this is not done, they cannot be reasonably expected to be able to explain these points.……………………………..(16)