Appellate Division :
(Criminal)
Syed Mahmud Hossain J
Md Imman Ali J
Hassan Foez Siddique J
Judgment April 20th, 2014.
State represented by the Deputy Commissioner, Noagaon
……………… Petitioner
vs
Md Palash ……………
………………………..Respondent
Evidence Act (I of 1872)
Section 114(g)
Nari-o-Shishu Nirjatan Daman Ain (8 of 2000)
Sections 9(1)
In the absence of any reason for not calling her as a witness negative inference was rightly drown against the prosecution for not examining her.
We cannot agree with the observation of the High Court Division that medical examination of the person of the prosecutrix is a sine qua non to prove rape. However, the fact that the victim declined to be examined medically is relevant and was rightly held against the prosecution. She admitted in her crossexamination that she met and talked to the inmates of the house including a sister of the accused and her husband as well as other persons who visited the house. When she was taken to another village, Chakprashad, she stated that people asked her questions. There is no mention that she complained to them about her abduction or rape. One other important factor highlighted by the High Court Division is that the informant alleged, to have narrated the occurrence first of all to one Rokeya Begum, a neighbour who was not examined by the prosecution.
…… (17 & 16)
Biswajit Deb Nath, Deputy Attorney-General instructed by Sufia Khatun Advocate-on-Record-For the Appellant.
None Represented-For the Respondent.
Judgment
Md Imman Ali J: This criminal petition for leave to appeal is directed against the judgment and order dated 3-3-2011 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1543 of 2004 allowing the appeal.
2. The relevant facts, for disposal of the case, are that one Azizur Rahman lodged a First Information Report (FIR) on 20-5-2002 with the Rani Nagar Police Station alleging inter alia that, he married Mosammat Shamima Akhter (Eby) (the victim) 12/13 years previously and they have 2 (two) children. The informant went to Bogra city on 14-5-2002 for purchasing some goods for his shop and he returned at night around 12-00 o’clock and after arriving at his house, he saw that accused Palash (the respondent herein) and Mukul were whispering beside the house of accused Md Sekander Ali and sensing his presence, they left the said place. Thereafter, the informant took his dinner and went to bed with his wife and children. Around 3-00/3-30 am his wife went out from the house for preserving the fire-wood from rain water. Suddenly the informant found that accused Palash and Mukul jumped upon his wife (the victim) and tied up her face with her Sari and forcibly took her away. When the informant went forward to resist, 5/6 unknown armed terrorists surrounded him and also threatened him not to shout. Due to rain-storm and out of fear, the informant did not go out of his residence at that night and after Fazr prayer, the informant informed the occurrence to a neighbour, namely, Rokeya Begum and the local people. Thereafter, the informant along with his children went to the house of his father-in-law and intimated the occurrence to him and other members of his family. The informant and his father-in-law tried to trace out the victim but failed. Further case of the prosecution is that before the aforesaid occurrence, at the instance of the informant a Salish was held in the locality and the Salishkarak awarded fine against accused Palash and Mukul for the allegation of outraging modesty and theft and the informant’s brother accused Sekander in order to evict the informant from his homestead inducted accused Palash and Mukul and they abducted the informants’ wife for selling her for prostitution or they might have killed her after committing rape and that at the advice of the police the informant tried to trace out his wife and having failed he lodged the FIR after a little delay.
3. On the basis of the aforesaid FIR Rani Nagar Police Station Case No. 12 dated 20-5-2002 was recorded under Section 7/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003) hereinafter called “the Ain”.
4. During investigation on 22-6-2002 the victim was recovered from the house of the sister of the respondent. On the date of recovery, the learned Magistrate recorded the statement of the victim under Section 22 of the Ain.
5. After investigation police submitted final report being No. 21 dated 18-8-2002 under Section 7/30 of the Ain.
6. Against the said final report the informant filed Naraji Petition, on the basis of which, the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Naogaon by order dated 28-8-2002 took cognizance of the offence under Section 7/30 of the Nari-o- Shishu Nirjatan Ain, 2003 against the respondent and 2 (two) others. Ultimately charge was framed against those accused by order dated 23-11-2002 under Section 7/30 of the Ain. The charge was read over and explained to the appellant and other attending accused, to which they pleaded not guilty and claimed to be tried.
7. In order to substantiate the charge against the accused persons the persecution examined as many as 7 witnesses, out of whom 2 witnesses were tendered and one witness was declared hostile. The defence did not examine any witness. After conclusion of examination of the witnesses, the respondent was examined under Section 342 of the Code of Criminal Procedure during which he again pleaded his innocence.
8. The defence case as it transpires from the trend of cross-examination is that there was love affair between the respondent Palash and the victim Shamima Akhter (Baby) and the victim of her own will left her husband’s house, and along with the beloved respondent she kept herself in hiding in different places. There was no abduction or rape. Out of grudge against the respondent, and because of previous enmity with Sekander, the informant falsely brought this case against the respondent and Md. Sekander, the brother of the informant.
9. After conclusion of trial the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Naogaon by his judgment and order dated 22-3-2004 convicted the accused under sections 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003) and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Taka 5,000 in default, to suffer rigorous imprisonment for 6 (six) months more.
10. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence the respondent preferred Criminal Appeal No. 1543 of 2004 before the High Court Division.
11. By the impugned judgment and order, the High Court Division allowed the appeal and acquitted the respondent. Hence, the State as petitioner has filed the instant criminal petition for leave to appeal before this Division.
12. Mr Biswajit Deb Nath, learned Deputy Attorney-General appearing on behalf of the petitioner submitted that the High Court Division failed to appreciate that the trial court applying its judicial mind passed the conviction and sentence to the accused respondent to suffer rigorous imprisonment for life with a fine of Taka 5,000, in default to suffer imprisonment for 6 (six) months more. He further submitted that the trial court examined independent witnesses and upon consideration of all the evidence found the accused guilty of the offence under section 9(1) of the Niri-o-Shishu Nirjatan Daman Ain 2000 and the High Court Division erred in reversing such finding.
13. No one has appeared to represent the respondents.
14. We find from the impugned judgment that initially charge was framed under sections 7/30 of the Nari-o-Shishu Nirjatan Daman Ain, but subsequently the charge was haltered to one under Section 9(1) of the said Ain. The High Court Division has elaborately discussed all the evidence on record and came to a finding that there was no direct evidence of rape upon the victim nor any circumstantial evidence was available to the prosecution.
15. Most importantly the High Court Division highlighted the fact that the prosecutrix, who was allegedly raped over a period of 40 days, did not raise objection in front of people in the neighbourhood whom she admittedly met nor even to the inmates of the house where she was introduced as the wife of the accused. The High Court Division observed that the deposition of the victim and her statements under Section 22 of the Ain do not inspire confidence inasmuch as firstly, the victim herself declined to be examined by the doctor and secondly, she is an adult woman of full age.
16. We cannot agree with the observation of the High Court Division that medical examination of the person of the prosecutrix is a sine qua non to prove rape. However, the fact that the victim declined to be examined medically is relevant and was rightly held against the prosecution. She admitted in her cross-examination that she met and talked to the inmates of the house including a sister of the accused and her husband as well as other persons who visited the house. When she was taken to another village, Chakprashad, she stated that people asked her questions. There is no mention that she complained to them about her abduction or rape.
17. One other important factor highlighted by the High Court Division is that the informant alleged, to have narrated the occurrence first of all to one Rokeya Begum, a neighbor who was not examined by the prosecution. We respectfully agree that in the absence of any reason for not calling her as a witness negative inference was rightly drown against the prosecution for not examining her.
18. We have considered the submissions of the learned Deputy Attorney-General for the petitioner and perused the impugned judgment and other connected papers on record.
19. The High Court Division upon proper consideration of the evidence and materials on record allowed the Appeal.
20. We do not find any reason to interfere with the decision of the High Court Division.
Accordingly, the criminal petition for leave to appeal is dismissed.
(Criminal)
Syed Mahmud Hossain J
Md Imman Ali J
Hassan Foez Siddique J
Judgment April 20th, 2014.
State represented by the Deputy Commissioner, Noagaon
……………… Petitioner
vs
Md Palash ……………
………………………..Respondent
Evidence Act (I of 1872)
Section 114(g)
Nari-o-Shishu Nirjatan Daman Ain (8 of 2000)
Sections 9(1)
In the absence of any reason for not calling her as a witness negative inference was rightly drown against the prosecution for not examining her.
We cannot agree with the observation of the High Court Division that medical examination of the person of the prosecutrix is a sine qua non to prove rape. However, the fact that the victim declined to be examined medically is relevant and was rightly held against the prosecution. She admitted in her crossexamination that she met and talked to the inmates of the house including a sister of the accused and her husband as well as other persons who visited the house. When she was taken to another village, Chakprashad, she stated that people asked her questions. There is no mention that she complained to them about her abduction or rape. One other important factor highlighted by the High Court Division is that the informant alleged, to have narrated the occurrence first of all to one Rokeya Begum, a neighbour who was not examined by the prosecution.
…… (17 & 16)
Biswajit Deb Nath, Deputy Attorney-General instructed by Sufia Khatun Advocate-on-Record-For the Appellant.
None Represented-For the Respondent.
Judgment
Md Imman Ali J: This criminal petition for leave to appeal is directed against the judgment and order dated 3-3-2011 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1543 of 2004 allowing the appeal.
2. The relevant facts, for disposal of the case, are that one Azizur Rahman lodged a First Information Report (FIR) on 20-5-2002 with the Rani Nagar Police Station alleging inter alia that, he married Mosammat Shamima Akhter (Eby) (the victim) 12/13 years previously and they have 2 (two) children. The informant went to Bogra city on 14-5-2002 for purchasing some goods for his shop and he returned at night around 12-00 o’clock and after arriving at his house, he saw that accused Palash (the respondent herein) and Mukul were whispering beside the house of accused Md Sekander Ali and sensing his presence, they left the said place. Thereafter, the informant took his dinner and went to bed with his wife and children. Around 3-00/3-30 am his wife went out from the house for preserving the fire-wood from rain water. Suddenly the informant found that accused Palash and Mukul jumped upon his wife (the victim) and tied up her face with her Sari and forcibly took her away. When the informant went forward to resist, 5/6 unknown armed terrorists surrounded him and also threatened him not to shout. Due to rain-storm and out of fear, the informant did not go out of his residence at that night and after Fazr prayer, the informant informed the occurrence to a neighbour, namely, Rokeya Begum and the local people. Thereafter, the informant along with his children went to the house of his father-in-law and intimated the occurrence to him and other members of his family. The informant and his father-in-law tried to trace out the victim but failed. Further case of the prosecution is that before the aforesaid occurrence, at the instance of the informant a Salish was held in the locality and the Salishkarak awarded fine against accused Palash and Mukul for the allegation of outraging modesty and theft and the informant’s brother accused Sekander in order to evict the informant from his homestead inducted accused Palash and Mukul and they abducted the informants’ wife for selling her for prostitution or they might have killed her after committing rape and that at the advice of the police the informant tried to trace out his wife and having failed he lodged the FIR after a little delay.
3. On the basis of the aforesaid FIR Rani Nagar Police Station Case No. 12 dated 20-5-2002 was recorded under Section 7/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003) hereinafter called “the Ain”.
4. During investigation on 22-6-2002 the victim was recovered from the house of the sister of the respondent. On the date of recovery, the learned Magistrate recorded the statement of the victim under Section 22 of the Ain.
5. After investigation police submitted final report being No. 21 dated 18-8-2002 under Section 7/30 of the Ain.
6. Against the said final report the informant filed Naraji Petition, on the basis of which, the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Naogaon by order dated 28-8-2002 took cognizance of the offence under Section 7/30 of the Nari-o- Shishu Nirjatan Ain, 2003 against the respondent and 2 (two) others. Ultimately charge was framed against those accused by order dated 23-11-2002 under Section 7/30 of the Ain. The charge was read over and explained to the appellant and other attending accused, to which they pleaded not guilty and claimed to be tried.
7. In order to substantiate the charge against the accused persons the persecution examined as many as 7 witnesses, out of whom 2 witnesses were tendered and one witness was declared hostile. The defence did not examine any witness. After conclusion of examination of the witnesses, the respondent was examined under Section 342 of the Code of Criminal Procedure during which he again pleaded his innocence.
8. The defence case as it transpires from the trend of cross-examination is that there was love affair between the respondent Palash and the victim Shamima Akhter (Baby) and the victim of her own will left her husband’s house, and along with the beloved respondent she kept herself in hiding in different places. There was no abduction or rape. Out of grudge against the respondent, and because of previous enmity with Sekander, the informant falsely brought this case against the respondent and Md. Sekander, the brother of the informant.
9. After conclusion of trial the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Naogaon by his judgment and order dated 22-3-2004 convicted the accused under sections 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003) and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Taka 5,000 in default, to suffer rigorous imprisonment for 6 (six) months more.
10. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence the respondent preferred Criminal Appeal No. 1543 of 2004 before the High Court Division.
11. By the impugned judgment and order, the High Court Division allowed the appeal and acquitted the respondent. Hence, the State as petitioner has filed the instant criminal petition for leave to appeal before this Division.
12. Mr Biswajit Deb Nath, learned Deputy Attorney-General appearing on behalf of the petitioner submitted that the High Court Division failed to appreciate that the trial court applying its judicial mind passed the conviction and sentence to the accused respondent to suffer rigorous imprisonment for life with a fine of Taka 5,000, in default to suffer imprisonment for 6 (six) months more. He further submitted that the trial court examined independent witnesses and upon consideration of all the evidence found the accused guilty of the offence under section 9(1) of the Niri-o-Shishu Nirjatan Daman Ain 2000 and the High Court Division erred in reversing such finding.
13. No one has appeared to represent the respondents.
14. We find from the impugned judgment that initially charge was framed under sections 7/30 of the Nari-o-Shishu Nirjatan Daman Ain, but subsequently the charge was haltered to one under Section 9(1) of the said Ain. The High Court Division has elaborately discussed all the evidence on record and came to a finding that there was no direct evidence of rape upon the victim nor any circumstantial evidence was available to the prosecution.
15. Most importantly the High Court Division highlighted the fact that the prosecutrix, who was allegedly raped over a period of 40 days, did not raise objection in front of people in the neighbourhood whom she admittedly met nor even to the inmates of the house where she was introduced as the wife of the accused. The High Court Division observed that the deposition of the victim and her statements under Section 22 of the Ain do not inspire confidence inasmuch as firstly, the victim herself declined to be examined by the doctor and secondly, she is an adult woman of full age.
16. We cannot agree with the observation of the High Court Division that medical examination of the person of the prosecutrix is a sine qua non to prove rape. However, the fact that the victim declined to be examined medically is relevant and was rightly held against the prosecution. She admitted in her cross-examination that she met and talked to the inmates of the house including a sister of the accused and her husband as well as other persons who visited the house. When she was taken to another village, Chakprashad, she stated that people asked her questions. There is no mention that she complained to them about her abduction or rape.
17. One other important factor highlighted by the High Court Division is that the informant alleged, to have narrated the occurrence first of all to one Rokeya Begum, a neighbor who was not examined by the prosecution. We respectfully agree that in the absence of any reason for not calling her as a witness negative inference was rightly drown against the prosecution for not examining her.
18. We have considered the submissions of the learned Deputy Attorney-General for the petitioner and perused the impugned judgment and other connected papers on record.
19. The High Court Division upon proper consideration of the evidence and materials on record allowed the Appeal.
20. We do not find any reason to interfere with the decision of the High Court Division.
Accordingly, the criminal petition for leave to appeal is dismissed.
