(Criminal)
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Mohammad Bazlur
Rahman J
Durnity Daman Commission…………..
…………….Petitioner
vs
Md Gias Uddin-al-Mamun and another ……… Respondents*
Order
February 25th, 2016
Code of Criminal Procedure (V of 1898)
Section 340(3)
Even if a witness is arrayed in the category of an accused, his evidence may be taken into consideration under section 340(3) of the Code in support of his defence, any accused person before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him, or any person charged together with him at the same trial. …… (2)
Code of Criminal Procedure (V of 1898) Section 340(3)
After a witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. . ….. (3)
Md Khurshid Alam Khan, Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
M. Mahbubuddin, Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Respondent.
Order
This petition is directed from a judgment of the High Court Division by which it has expunged the evidence of PW-6. M Shahjad Ali and PW-7-Tahmina Ali.
We have perused the impugned judgment and the deposition of those 2(two) witnesses and other materials on record.
The High Court Division has expunged their evidence mainly on the reasoning that these 2(two) persons have been arrayed, as accused in the case and therefore, their evidence should not be kept with therecord.
2. The High Court Division has committed a fundamental error in expunging their evidence, inasmuch as, even if an witness is prayed in the category of an accused, his evidence may, be taken into consideration under section 340(3) of the Code of. Criminal Procedure in support of his defence, ‘it is provided in section’ 340(3) of the Code of Criminal Procedure that any accused person before ‘a criminal Court shall’ be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial.
3. It is true that after a witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because, it will tantamount to self implication. Their evidence may be considered by the defence as well.
This petition is accordingly disposed of with the above observations.
