Appellate Division :
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
State ………… Appellant
vs
Md Shamsur Rahman Sikder @ Kalu & other
……………Respondents
Judgment February 11th, 2014.
Cruelty to Women (Deterrent Punishment) Ordinance (LX of 1983)
Sections 4(Kha) and 10
Penal Code (XLV of 1860)
Section 376
Code of Criminal Procedure (V of 1898) Sections 374 and 376
The process of sentencing is at the discretion of the Judge and is at the same time circumscribed by the law. The respondent was in custody during the pendency of the appeal from 1993 to 2001 and, therefore, served a term of imprisonment of about 8 years. The High Court Division has thought that the period served by the respondent was sufficient to meet the ends of justice. .. …. (14)
Biswajit Deb Nath, Deputy Attorney-General-For the Appellant instructed by B. Hossain, Advocate-on-Record
Ex-parte-The Respondents:
Judgment
Md. Imman Ali J: This criminal appeal, by leave, is directed against the judgment and order dated 8-7-2001 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1710 of 1993 allowing the appeal in part.
2. The prosecution case, in brief, is that on 21-9-1992 informant Shakhaot Hossain’s wife Aysha was sleeping in their dwelling hut with her daughter Dilruba Sultana Fouzia Khatun, aged about 14 years in the western room of the hut. At dead hours of the night the accused persons by cutting the fencing of the room entered into the hut and tried to forcibly abduct Fouzia but she raised alarm. Hearing her hue and cry, the wife of the informant woke up and lit the hurricane and recognized accused Shamsur Rahman who was forcibly taking Dilruba Sultana out of the house. Accused Akkas threatened the wife of the informant when she tried to obstruct the taking away of her daughter, Dilruba. They raised alarm and hearing hue and cry neighbouring people and witnesses rushed to the scene and chased the accused persons, but the accused persons already boarded a waiting tempo and hurriedly left the place of occurrence. It has been further alleged that the accused Shamsur Rahman proposed to marry Dilruba, daughter of the informant but the informant refused his proposal. Dilruba was taken to a distant village and kept confined there for about 10/15 days, and against her will the respondent Shamsur Rahman arranged a fake marriage for her. Thereafter, the respondent Shamsur Rahman raped Dilruba repeatedly against her will. About 15 days after the occurrence Dilruba managed to escape from the illegal confinement of the accused persons. On returning home she narrated the occurrence to the inmates of the house and other witnesses.
3. After investigation police submitted charge-sheet under sections 4(b) and (c) read with section 10 of Cruelty to Women (Deterrent Punishment) Ordinance, 1983. The respondent Shamsur Rahman was also charged under section 376 of the Penal Code.
4. During trial the case record was transmitted to the Court of learned Assistant Sessions Judge and Special Tribunal, Magura for trial. The learned Judge of the said Court framed charge against the accused respondents under the above mentioned sections. The charge was read over to the accused to which they pleaded not guilty and claimed to be tried.
5. In support of this case the prosecution examined as many as 9(nine) witnesses but the defence examined none.
6. The defence case as it transpires from the trend of cross-examination of the witnesses is that Dilruba had an affair with accused Shamsur Rahman and she eloped with him of her own free will and married him. The accused have been falsely implicated in this case.
7. After completion of taking evidence, the accused respondents were examined under section 342 of the Code of Criminal Procedure, where they again pleaded not guilty and declined to adduce any evidence in support of their defence.
8. The learned Assistant Sessions and Special Tribunal Judge, Magura after conclusion of the trial convicted the appellant Shamsur Rahman under sections 4(b) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 read with section 376 of the Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Taka 10,000, in default to suffer rigorous imprisonment for a further period of 2 (two) years. Accused Akkas and Golam Mawla were convicted under sections 4(b) and (c) and 9 of the said Ordinance and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Taka 10,000 each, in default, to suffer rigorous imprisonment for a further period of 2 (two) years.
9. Being aggrieved, the accused respondent preferred Criminal Appeal No. 1710 of 1993 before the High Court Division. Upon hearing, the High Court Division allowed the appeal in part and set-aside the conviction and sentence passed against appellants Akkas Sikder and Golam Mawla and they were acquitted from the charge levelled against them and the order of conviction and sentence of respondent Shamsur Rahman Shikder under Sections 4(b) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 was affirmed but he was sentenced to suffer imprisonment for the period already undergone by him.
10. Being aggrieved by the said judgment and order of the High Court Division a petition for leave to appeal was filed by the State and leave was granted to consider whether the charge under section 4(c) of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 has been proved against the respondent No.1 beyond all reasonable doubt, and whether the High Court Division erred in law in reducing the sentence of respondent No.1 without assigning any reason whatsoever or showing any extenuating circumstances.
11. The learned Deputy Attorney-General, Mr Biswajit Deb Nath, appearing on behalf of the appellant submitted that in view of clear findings of the High Court Division to the effect that it has been convincingly proved that the accused persons particularly accused Shamsur Rahman forcibly abducted victim Dilruba for forcible marriage, the High Court Division erred in law in acquitting Akkas and Mawla and reducing the sentence of respondent Shamsur Rahman. He also submitted that charge under section 4(c) of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 having been proved beyond all reasonable doubt and the High Court Division erred in law in reducing the sentence without assigning any reasons whatsoever or upon considering any extenuating circumstances. The learned DAG lastly submitted that the prosecution case having being convincingly proved beyond all reasonable doubts by the testimony of the victim girl and her mother and other witnesses, the High Court Division erred in law in acquitting Akkas and Mawla and reducing the sentence of respondent Shamsur Rahman.
12. We have considered the submissions of the learned Deputy Attorney-General appearing for the appellant and perused the impugned judgment as well as other evidence and materials on record.
13. We find from the impugned judgment that the High Court Division after elaborate discussion of the evidence came to the finding that the prosecution failed to prove its case against appellants Akkas and Mawla and upon giving them the benefit of doubt, acquitted them. However, it was found that there was sufficient evidence that accused Shamsur Rahman (respondent herein) forcibly abducted the victim Dilruba for seducing her to a forcible marriage with him. The High Court Division also found that the charge of rape was not proved by cogent and reliable evidence. Accordingly, the accused was acquitted of the charge under Section 376 of the Penal Code while conviction under section 4(Kha) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 was affirmed. The High Court Division then sentenced the respondent to suffer imprisonment for the period already undergone by him in jail.
14. The punishment provided under section 4(Kha) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 is imprisonment for life or rigorous imprisonment for a term which may extend to 14 years and shall also be liable to a fine. The process of no sentencing is at the discretion of the Judge and is at the same time circumscribed by the law. In the instant case, the accused Shamsur Rahman could have been sentenced to imprisonment for life or, taking into consideration the facts and circumstances of the case, he could have been sentenced to suffer rigorous imprisonment for any period up to 14 years.
It transpires that the respondent was in custody during the pendency of the appeal from 1993 to 2001 and, therefore, served a term of imprisonment of about 8 years. The High Court Division has thought that the period served by the respondent was sufficient to meet the ends of justice. We do not find any illegality in the impugned judgment and, therefore find no reason to interfere with the impugned judgment and order.
Accordingly, the appeal is dismissed.
(Criminal)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
State ………… Appellant
vs
Md Shamsur Rahman Sikder @ Kalu & other
……………Respondents
Judgment February 11th, 2014.
Cruelty to Women (Deterrent Punishment) Ordinance (LX of 1983)
Sections 4(Kha) and 10
Penal Code (XLV of 1860)
Section 376
Code of Criminal Procedure (V of 1898) Sections 374 and 376
The process of sentencing is at the discretion of the Judge and is at the same time circumscribed by the law. The respondent was in custody during the pendency of the appeal from 1993 to 2001 and, therefore, served a term of imprisonment of about 8 years. The High Court Division has thought that the period served by the respondent was sufficient to meet the ends of justice. .. …. (14)
Biswajit Deb Nath, Deputy Attorney-General-For the Appellant instructed by B. Hossain, Advocate-on-Record
Ex-parte-The Respondents:
Judgment
Md. Imman Ali J: This criminal appeal, by leave, is directed against the judgment and order dated 8-7-2001 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1710 of 1993 allowing the appeal in part.
2. The prosecution case, in brief, is that on 21-9-1992 informant Shakhaot Hossain’s wife Aysha was sleeping in their dwelling hut with her daughter Dilruba Sultana Fouzia Khatun, aged about 14 years in the western room of the hut. At dead hours of the night the accused persons by cutting the fencing of the room entered into the hut and tried to forcibly abduct Fouzia but she raised alarm. Hearing her hue and cry, the wife of the informant woke up and lit the hurricane and recognized accused Shamsur Rahman who was forcibly taking Dilruba Sultana out of the house. Accused Akkas threatened the wife of the informant when she tried to obstruct the taking away of her daughter, Dilruba. They raised alarm and hearing hue and cry neighbouring people and witnesses rushed to the scene and chased the accused persons, but the accused persons already boarded a waiting tempo and hurriedly left the place of occurrence. It has been further alleged that the accused Shamsur Rahman proposed to marry Dilruba, daughter of the informant but the informant refused his proposal. Dilruba was taken to a distant village and kept confined there for about 10/15 days, and against her will the respondent Shamsur Rahman arranged a fake marriage for her. Thereafter, the respondent Shamsur Rahman raped Dilruba repeatedly against her will. About 15 days after the occurrence Dilruba managed to escape from the illegal confinement of the accused persons. On returning home she narrated the occurrence to the inmates of the house and other witnesses.
3. After investigation police submitted charge-sheet under sections 4(b) and (c) read with section 10 of Cruelty to Women (Deterrent Punishment) Ordinance, 1983. The respondent Shamsur Rahman was also charged under section 376 of the Penal Code.
4. During trial the case record was transmitted to the Court of learned Assistant Sessions Judge and Special Tribunal, Magura for trial. The learned Judge of the said Court framed charge against the accused respondents under the above mentioned sections. The charge was read over to the accused to which they pleaded not guilty and claimed to be tried.
5. In support of this case the prosecution examined as many as 9(nine) witnesses but the defence examined none.
6. The defence case as it transpires from the trend of cross-examination of the witnesses is that Dilruba had an affair with accused Shamsur Rahman and she eloped with him of her own free will and married him. The accused have been falsely implicated in this case.
7. After completion of taking evidence, the accused respondents were examined under section 342 of the Code of Criminal Procedure, where they again pleaded not guilty and declined to adduce any evidence in support of their defence.
8. The learned Assistant Sessions and Special Tribunal Judge, Magura after conclusion of the trial convicted the appellant Shamsur Rahman under sections 4(b) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 read with section 376 of the Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Taka 10,000, in default to suffer rigorous imprisonment for a further period of 2 (two) years. Accused Akkas and Golam Mawla were convicted under sections 4(b) and (c) and 9 of the said Ordinance and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Taka 10,000 each, in default, to suffer rigorous imprisonment for a further period of 2 (two) years.
9. Being aggrieved, the accused respondent preferred Criminal Appeal No. 1710 of 1993 before the High Court Division. Upon hearing, the High Court Division allowed the appeal in part and set-aside the conviction and sentence passed against appellants Akkas Sikder and Golam Mawla and they were acquitted from the charge levelled against them and the order of conviction and sentence of respondent Shamsur Rahman Shikder under Sections 4(b) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 was affirmed but he was sentenced to suffer imprisonment for the period already undergone by him.
10. Being aggrieved by the said judgment and order of the High Court Division a petition for leave to appeal was filed by the State and leave was granted to consider whether the charge under section 4(c) of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 has been proved against the respondent No.1 beyond all reasonable doubt, and whether the High Court Division erred in law in reducing the sentence of respondent No.1 without assigning any reason whatsoever or showing any extenuating circumstances.
11. The learned Deputy Attorney-General, Mr Biswajit Deb Nath, appearing on behalf of the appellant submitted that in view of clear findings of the High Court Division to the effect that it has been convincingly proved that the accused persons particularly accused Shamsur Rahman forcibly abducted victim Dilruba for forcible marriage, the High Court Division erred in law in acquitting Akkas and Mawla and reducing the sentence of respondent Shamsur Rahman. He also submitted that charge under section 4(c) of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 having been proved beyond all reasonable doubt and the High Court Division erred in law in reducing the sentence without assigning any reasons whatsoever or upon considering any extenuating circumstances. The learned DAG lastly submitted that the prosecution case having being convincingly proved beyond all reasonable doubts by the testimony of the victim girl and her mother and other witnesses, the High Court Division erred in law in acquitting Akkas and Mawla and reducing the sentence of respondent Shamsur Rahman.
12. We have considered the submissions of the learned Deputy Attorney-General appearing for the appellant and perused the impugned judgment as well as other evidence and materials on record.
13. We find from the impugned judgment that the High Court Division after elaborate discussion of the evidence came to the finding that the prosecution failed to prove its case against appellants Akkas and Mawla and upon giving them the benefit of doubt, acquitted them. However, it was found that there was sufficient evidence that accused Shamsur Rahman (respondent herein) forcibly abducted the victim Dilruba for seducing her to a forcible marriage with him. The High Court Division also found that the charge of rape was not proved by cogent and reliable evidence. Accordingly, the accused was acquitted of the charge under Section 376 of the Penal Code while conviction under section 4(Kha) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 was affirmed. The High Court Division then sentenced the respondent to suffer imprisonment for the period already undergone by him in jail.
14. The punishment provided under section 4(Kha) and 10 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 is imprisonment for life or rigorous imprisonment for a term which may extend to 14 years and shall also be liable to a fine. The process of no sentencing is at the discretion of the Judge and is at the same time circumscribed by the law. In the instant case, the accused Shamsur Rahman could have been sentenced to imprisonment for life or, taking into consideration the facts and circumstances of the case, he could have been sentenced to suffer rigorous imprisonment for any period up to 14 years.
It transpires that the respondent was in custody during the pendency of the appeal from 1993 to 2001 and, therefore, served a term of imprisonment of about 8 years. The High Court Division has thought that the period served by the respondent was sufficient to meet the ends of justice. We do not find any illegality in the impugned judgment and, therefore find no reason to interfere with the impugned judgment and order.
Accordingly, the appeal is dismissed.
