Avgvi 4-5 eQi Av‡MB eq‡dÖ‡Ûi mv‡_ sexual intercourse G Af¨¯Í wQ‡jv mZ¨| wfKwUg| gvkKziv †PŠayix mvw`qvi kix‡i al©‡bi †Kvb AvjvgZ cvIqv hvq bvB| Aci wfKwU‡gi| kix‡iI al©‡bi †Kvb AvjvgZ cvIqv hvq bvB|Ó
It is seen from this part of the statement of accused Billal that accused Safat Ahmed said that he will have sex with Rothy and accused Nayeem Ashraf wanted to have sex with Sadia. Safat told him to wait in the washroom and he is forbidden to go out untill he is called. According to this statement he has in the place of occurence but he did not say whether two victims asked him for any help or they raised any outcry or they ever resisted or attempted to resist the act of intercourse.
During the examination of the accused under Section 342 of Criminal Procedure Code, the accused persons submitted the written statement. Statement of CrPC 342 of Sadman Sakif is that, “al©b nIqvi welq †m wb‡R wKQy †`‡L bvB wKsev iv‡Z †nv‡U‡j Ae¯’vb bv Kivq al©‡bi welq Zvnvi mn‡hvMx nBevi †Kvb cÖkœB Av‡m bv| AvBb Abyhvqx mn‡hvMxZvi Aciva cÖgvb Kwi‡Z nB‡j ivóªc‡K Avmvgx KZ©„K Aciva msMV‡b c‡ÖivwPZ (Instigate) Kiv wKsev Avmvgx KZ©„K Aciva msMV‡b hohš¿ (Conspiracy) wKsev B”QvK…Z fv‡e mnvqZv Kiv (intentionally aid) wKsev Z_¨ M‡vc‡bi gva¨‡g (Concealment) ¯^ZtùyZ©fv‡e Aciv‡a Ask †bqv cÖgvb Kwi‡Z nB‡e| m~‡Î ewb©Z gvgjvq Avmvgx al©‡bi Rb¨ Awfhy³ g~j Avmvgx‡`i‡K cÖ‡ivwPZ Kwiqv‡Q wKsev al©b Kivi D‡Ï‡k¨ †Kvb Z_¨ †Mvc‡bi gva¨‡g g~j AvmvgxMb‡K al©‡bi Rb¨ DrmvwnZ Kwiqv‡Q wKsev al©b Kivi D‡Ï‡k¨ †Kvb lohš¿g~jK Kg©m¤úv`b Kwiqv‡Q wKsev B”QvK…Zfv‡e †Kvb ai‡bi al©‡bi Kv‡R Ask wbqv‡Q g‡g© `vex DÌvcb Kiv nq bvB| Avwg Lvjvm PvB|Ó
Statement of CrPC 342 of Safat Ahmed is that, ÒAvgvi wcZv †`‡ki ¯^bvgab¨ ¯^Y© e¨emvqxK cÖwZôvb Avcb Ry‡qjvm© Gi gvwjK| Avgvi Avcb PvPvivI ¯^‡Y©i e¨emvqx| Avgv‡K wg_¨vfv‡e AÎ gvgjvq Avmvgx Kiv n‡q‡Q| AÎ gvgjvi GRvnv‡i ewY©Z mg¯Í NUbvi †h Awf‡hv‡Mi K_v ejv n‡q‡Q Zvnv mZ¨ bq| AÎ gvgjvi PvR©kx‡U, GRvnv‡i ewb©Z mvx dvwiqv gvneye wcqvmv @ jvwgqv Avkv Avgvi ZvjvKcÖvß mv‡eK ¯¿x| Zv‡K ZvjvK †`qvi Kvi‡Y cÖwZ‡kva civqY n‡q AÎ gvgjvi ev`x I wfKwUg‡K Øviv Avgvi weiæ‡× AÎ wg_¨v gvgjvwU `v‡qi K‡i‡Q| ZvQvov Avgvi mv‡eK ¯¿x dvwiqv gvneye wcqvmv @ jvwgqv Avkvi mv‡_ wW.AvB.wR †gvt wgRvbyi ingvb Gi m¤úK© wQj| †m Kvi‡b Avgvi mv‡eK ¯¿x Zvi Øviv cÖfve LvwU‡q Avgvi weiæ‡× AÎ wg_¨v gvgjvwU `v‡qi Kwi‡Z mnvqZv K‡i‡Q e‡j cÖZxqgvb nq| Avgvi wcZvi e¨emvqxK cÖwZØ›Øx WvqgÛ Iqvì© Gi gvwjK w`wjc AvMiIqvj Gi A_©vq‡b D³ dvwiqv gvneye wcqvmv ev`x I wfKwUg‡`i g¨v‡bR Kwiqv A‰ea cÖfve we¯Ívi Kwiqv AÎ wg_¨v gvgjv Avbq‡b me©vZ¡K mn‡hvwMZv Kwiqv‡Q| AÎ gvgjvq Avgvi weiæ‡×| ev`x, wfKwUg †h Awf‡hv‡Mi K_v e‡j‡Q Dnv m¤ú~Y© wg_¨v, ev‡bvqvU Ges AmZ¨| ZvQvov Ab¨vb¨ mvxivI Avgvi weiæ‡× my¯úó I mywbw`©ó †Kvb Awf‡hv‡Mi K_v e‡j bvB| Avwg Ah_v lohš¿ I mvgvwRK fv‡e nqivbxi wkKvi gvÎ| D‡jøL¨ †h Avgv‡K kvixwiKfv‡e wbh©vZb K‡i cywjk ¯^xKv‡ivw³g~jK Revbew›`i KvM‡R mB wb‡q‡Q| Avwg †Kvb ¯^xKv‡ivw³g~jK Revbew›` Kwiwb| Avwg m¤ú~Y© wb‡`©vl, wbivciva, AvB‡bi cÖwZ kª×vkxj, evsjv‡`‡ki ¯’vqx bvMwiK| Avwg b¨vq wePvi Ges †eKmyi Lvjvm PvB|Ó
Statement of CrPC 342 of Nayeem Ashraf @ H.M Halim is that, ÔÔAvwg GKRb Abyôvb Avq‡vRK cÖwZôvb (B‡f›U g¨v‡bR‡g›U) e¨emvqx Ges Avwg weevwnZ| weMZ 28/03/2017 Bs ZvwiL Avgvi eÜy mvdvZ Avn‡¤§` Gi wbgš¿‡b Zvnvi Rb¥w`b Dcj‡¨ ebvbxi †iBw›Uª †nv‡Uj GÛ †ióy‡i‡›U Av‡qvwRZ Abyôv‡b AwZw_ wnmv‡e Dcw¯’Z nB Ges h_vixwZ Abyôvb †k‡l evmvq P‡j Avwm| Avgv‡K weMZ 18/05/2017 Bs ZvwiL m~Îvaxb gvgjvq wWwe cywjk weÁ g~L¨ gnvbMi nvwKg Av`vjZ XvKv‡Z Dc¯’vcb K‡i 07 (mvZ) w`‡bi cywjk wigv‡Û †`q Ges wigv‡Û _vKv Ae¯’vq Avgvi Dci AgvbywlK I kvixwiK wbh©vZb K‡i| Kw_Z I mvRv‡bv NUbvi mwnZ m¤ú”³ _vKvi K_v A¯^xKvi Ki‡j Zviv AviI wbh©vZb evwo‡q w`Z Ges GK ch©v‡q Zv‡`i wbh©vZb mn¨ Ki‡Z bv †c‡i Zv‡`i wkLv‡bv g‡Z weÁ g¨vwR‡÷ª‡Ui wbKU cÖkœwe× Revbe›`x cÖ`v‡b ivRx nB| AZ:ci wigvÛ †k‡l weMZ 25/05/2017 Bs ZvwiL cwiKwíZfv‡e Zv‡`i wkLv‡bv I †jLv e³e¨ weÁ g¨vwR‡÷ª‡Ui m¤§y‡L Avgvi e³e¨ ewjqv ¯^xKvi KivBqv †iKW© Kiv‡bv nq| †h‡nZy Avwg †¯^”Qvq D³ Revbe›`x cÖ`vb Kwi bvB †m‡nZy cieZ©x‡Z weMZ 08/06/2017 Bs ZvwiL D³ Revbe›`x cÖZ¨vnvi (Retract) Gi Rb¨ weÁ wb¤œ Av`vj‡Z Av‡e`b Kwi hvnv bw_fy³ Av‡Q| Avwg GRvnv‡i ewb©Z Awfh‡v‡Mi mv‡_ RwoZ bv Ges weMZ 28/03/2017 Bs ZvwiL D³ Abyôv‡bi mgq ev`xwbi Kw_Z †Kvb NUbv N‡U bvB| Z`šÍKvix Kg©KZ©v †fRvBbvj m‡vqve msMÖn c~e©K wWGbG cixv Kivb hvnv‡Z †Kvb cÖKvi wgj cvIqv hvq bvB, Kw_Z wfKwUg Gi †gwW‡Kj wi‡cv‡U©I †Rvic~e©K al©‡bi †Kvb AvjvgZ cvq bvB| Avgvi weiæ‡× dvwiqv gvneye wcqvmv jvwgqv Avkv Gi mvRv‡bv wfKwUg gvmKziv †PŠayix mvw`qv wb‡R awl©Z n‡q‡Q g‡g© evsjv‡`‡ki †Kvb _vbvq ev weÁ Av`vj‡Z †Kvb gvgjv ev Awfh‡vM `v‡qi K‡ib bvB| gvgjvq Avgvi weiæ‡× †h Awfh‡vM Avbv n‡q‡Q Zvnv wfwËnxb Ges Avwg wb‡`©vl| Avwg weÁ Av`vj‡Zi wbKU b¨vq wePvi cÖv_©bv KiwQ|Ó
Statement of CrPC 342 of Md Billal Hossen is that, ÒAvwg 1 bs Avmvgx Rbve mvdvZ Avn‡g` Gi Mvoxi WªvBfvi| AÎ gvgjvq Avgvi weiæ‡× †h Awf‡hv‡Mi K_v ejv n‡q‡Q Zvnv m¤ú~Y©i~‡c wg_¨v, AmZ¨ e‡U| Avgv‡K kvixwiKfv‡e wbh©vZb K‡i cywjk ¯^xKv‡ivw³ Av`vq K‡i‡Q| AÎ gvgjvi 1 bs Avmvgx mvdvZ Avn‡g` Gi mv‡eK ¯¿x dvwiqv gvneye wcqvmv ev`x I wfKwUg‡K g¨v‡bR Kwiqv wg_¨vfv‡e AÎ gvgjvwU `v‡qi K‡i‡Q| AÎ gvgjvq Avgvi weiæ‡× mvxivI †Kvb Awf‡hv‡Mi K_v e‡j bvB| Avwg m¤ú~Y© wb‡`©vl| Lvjvm `vex KiwQ|Ó
Statement of CrPC 342 of Md Rahmal Ali is that,
ÒAvwg 1bs Avmvgx Rbve mvdvZ Avn‡g` Gi wbivcËv cÖnix (Body Guard) Avwg †mbvevwnbxi Aemi cÖvß GKRb m`m¨| AÎ gvgjvq Avgvi weiæ‡× †h Awf‡hvM Kiv n‡q‡Q Dnv mZ¨ bq eis wg_¨v I ev‡bvqvU| AÎ gvgjvwU 1bs Avmvgxi mv‡eK ¯¿x dvwiqv gvneye wcqvmvi cÖZ¨ÿ mnvqZvq ev`x I wfKwUg wg_¨vfv‡e `v‡qi K‡i‡Q| mvÿxivI Avgvi weiæ‡× mywbw`©ó I my¯úó †Kvb Awf‡hv‡Mi K_ e‡j bvB Avwg m¤ú~b© wb‡`©vl| b¨vq wePvi I †eKmyi Lvjvm PvB|
Accused Safat Ahmed, Nayeem Ashraf @ H M Halim, Sadman Sakif, Billal Hossain, Rahmat Ullah, among of them four accused were given the confessional statement before the ld Magistrate. A part from the statement of accused Nayeem Ashraf and Safat Ahmed the statements of accused Sadman Sakif and Billal Hossain are not at all the confessinoal statement within the purview of meaning “confession”. At common law an informal admission made by an accused person, prior to his trial, to a person in authority was known as a confession, an expression which included not only a full admission of guilt but also any incriminating statement about the offence.
On perusal of the statements of aforesaid three accused it is appears that, they described the alleged incident in the statement. A confession must either admit interms of the offence or at any rate substanially all the facts which constitutes the offence. Ld Magistrate did not make any genuine effort to find out the real character of the confession.
Moreover all four of the statement giving accused are complained by written statement that they were taken before ld Magistrate from the police custody and they were mercilessly beaten and threated by the police to confess before the Id Magistrate about the crime they are accused of. They also said, if they refuse to give confessinal statement police threatened them of further torture or haras their family by filing more cased. All of them has retracted the confessional statement immediate after the statement given.
In the case of Sohel Monir, son of MA Monir of Dhaka Vs State reported in 49 DLR 407 wherein the Lordships have held:
“If the confession of a co-accused is retracted, the position be comes worse so far the other accused is concerned. Of course, retraction of a confession does not cancel the confesiion if it is found that when the confession was made, it was made voluntrarily and that it is true.”
In the cross-examination PW-22 admitted that, †MÖdZv‡ii ci mvdvZ‡K wRÁvmvev‡`i Rb¨ cywjk wigv‡Ûi e¨e¯’v Kwi mZ¨| 06 w`‡bi cywjk wigvÛ gÄyi nq|| 11/05/2017 Bs nB‡Z 18/05/2017 Bs ch©šÍ mvdvZ police custody †Z _v‡K mZ¨|
On perusal of the record it is appeard that accused Safat Ahmed was in police custody from 11-05-2017 to 18-05-2017, accused Nayeem Ashraf was in police custody from 18/05/2017 to 25/05/2017, accused Billal Hossain was in police custody 17/05/2017 to 21/05/2017 and accused Sadman Sakif was in police custody from 12/05/2017 to 17/05/2017, accused Rahmat Ullah was in police custody from 16/05/2017 to 18/05/2017.
In the case of Safat Ali and others vs state reported in 1983 BLD 325 it was held that the plolonged police custody immediately before recording the confessional statement is sufficient if no other wise properly explained, to render it as involuntary, in the instant case the accused were presented before Id Magistrate for the police custody as they were in remand. They claimed at the stage of examination under Section 342 of The Criminal Procedure Code that police tortured them inhumanely, they were fored to confess and that were not true and voluntary. PW-14 stated in his cross-examination that, ÒAvmvgx Dc‡iv³ Revbe›`x mwVK I ï× g‡g© wj‡L Dnv‡Z ¯^vi K‡iwb| Avmvgx‡K wigv‡Û wbh©vZb Kiv n‡q‡Q wKbv †m wel‡q †Kvb cÖkœ Kiv nqwb|Ó PW-16 stated that, Ò B݇c±i BmgZ Aviv Avmvgx bvCg Avkivd‡K Avgvi wbKU Dc¯’vb K‡i| Gi c~‡e© 17/05/2017 Bs Zvwi‡L ivZ 8:45 NwUKvq †jŠnRs gyÝxMÄ n‡Z D³ Avmvgx‡K †MÖdZvi K‡i| Avgvi wbKU Dc¯’vcb K‡i 25/05/2017 Bs ZvwiL| gywÝMÄ KZ©…c‡i wbKU AvmvgxK Dc¯’vcb K‡i wKbv Rvwb bv|” PW-17 stated that, ÒAvmvgx mvdvZ Avn‡g` 12/05/2017 Bs nB‡Z 18/05/2017 Bs ch©šÍ cywjk wigv‡Û wQj mZ¨| Avmvgx mvdvZ AbyZß wKbv GB g‡g© Zv‡K cÖkœ Kwi bvB mZ¨| ¯^xKv‡iv³x bv Ki‡jI Avmvgx‡K Avi police custody-‡Z †`Iqv n‡e bv g‡g© Avk¦¯Í K‡iwQ wKbv Zv di‡g D‡jøL bvB mZ¨| PW-14 has failed to prove its truth and voluntariness since he failed to ask the confessing accused as to whether he was tortured during the police custudy. PW-17 gave any understanding to the confession acused that whether he confess or not, will not be handed over to police custody. So in all practical purpose it apears that the formalities as provided under Section 164 and 364 have ot been compiled with in recording the confessinal statement of the accused. It is already been decided that prosecution was not able to prove the story of rape about victim Sadia so the given statement of the accused Nayeem Ashraf and Safat Ahmed is not true. The accused persons had submitted an application on dated 18/05/2017 seeking the order of having treatment in the jail. This is the indecation of that the accused were physically tortured during remand. Since they were in police custody police obtained it by undue influence and as such that were not voluntary also. Thus it is not acceptable in the eye of law.
From the contents of the confessional statement of accused Safat Ahmed it is appears that the statement is infeat exculpatory. He did not incriminate himself to the offence of rape. He stated about the accused Nayeem Ashraf that. H mgq mvw`qv Kvu`‡Z Kuv`‡Z H iæ‡g Av‡m Ges e‡j, ÒbvCg Avkivd Avgvi mv‡_ †Rvi K‡i †m· K‡i‡Q|Ó But there is no evidence of rape against the accused Nayeem Ashraf on the statement he has incriminated accused Nayeem Ashraf to the offence of rape for victim Sadia confessional statement of one accused cannot be used against another co-accused unless their is any independent corroboration.
In the case of Samsul Haque @ Samsul’s and others Vs State reported in 38 DLR (AD) 75, Hon’ble Lordships has held:- “The manner of the incident as alleged by the prosecution must be proved by the prosecution alone; that burden never shift. Prosecution is bound to establish the charge by consistant and reliable evidence beyond all reasonable doubt. The defence case need not proved by examining witnesses some idication in their favour is available from cross-exammination of the prosecution witnesses then this may be sufficient for thir acquittal. The manner of the incident as alleged by the prosecution must be proved by the proseution alone; that burdem of proof never shifts. If the manner of the incident is not proved, the prosecution must fail no matter the defence virsion of the case has not been proved either.”
In die case of Siraj Mia vs state reported 45 DLR 699 where it has been held, “It is true that in a case of sexual offence, if the victim is women of full age then, of course, without independent corroboration of her evidence, the prosecution case should not be believed as because of her full age she may be a willing or consenting party to the game, but when the victim girl is a minor, her evidence, if otherwise found to be truthful and reliable, may be sufficient for conviction of the accused even without any independent corroboration.”
In the instant case Ahmed Shahriar told that when he was arrived at hotel Raintree he saw Rothy, Sadia, Nayeem, Nazia and Safat were dancing. After that all of them went to the rooftop and swam in the swiming pool. Rothy, Safat, Sakif first got down to the swimming pool then he got down. He got up from the swiming pool 10-15 minutes later. After 20-25 minutes, the three of them got up. After a while Safat called him to wait in the next room. Half an hour later, Safat asked help to manage Rothy about taking pill. When he refused to manage Rothy accused Nayeem Ashraf slapped him. No where in the FIR, statement of the victims under Section 22 of the aforsaid law and also the evidence provided at the tribunal PW-1 victim Rothy did not mention about the story of taking pill. Moreover such statement is not testified one. According to the 2nd victim Sadia’s evidence of record nothing fond such a story of taking pil. She said when they were in rooftop, Shahriar was called in the room by Safat and Nayeem. When Shahriar’s return was deleyed, Rothy went to check the matter. Shortly afterwards Sneha and she were taken to that room by some one. She went to the room and saw the accused Safat, Sakif, Nayeem Ashraf and victim Rothy and Shahriar also there. She saw -acccused Nayeem Ashraf beating their friend Shahriar.
She also said that, kvnwiqvi‡K Avmvgx bvCg I mvdvZ ejwQj †h, ÒZywg GKUv wfwWI Kiev, bv Ki‡j †h‡Z w`‡ev bv|” Iiv kvnwiqvi‡K ej‡Z e‡j †h, Òej Avwg GKRb Bqvev e¨emvqx Ges †g‡q ¸wj‡K Lvivc KvR Kiv‡bvi Rb¨ wb‡q G‡mwQ|Ó ZLb Avmvgx WªvBfvi wejøvj IUv wfwWI K‡i| wfwWI Kivi ci kvnwiqvi‡K cv‡ki iæ‡g cvwV‡q †`q †hLv‡b †mœnv wQj| Avwg I iw_ ZLb mvdvZ I bvCg‡K †evSv‡bvi †Póv KiwQjvg Avgiv †Zvgv‡`i Friend Ges Friend B _vK‡e Ges GB NUbv KvD‡K ej‡ev bv| Avgiv Gme K_v family suit Gi †eWiæ‡g e‡m K_v ejwQjvg| ZLb Avmvgx mvdvZ †Rvi K‡i iw_‡K cv‡ki iæ‡g †U‡b wb‡q hvq I †Rvic~e©K iw_‡K g`¨cvb Kivq| ZLb H iæ‡g Avwg I bvCg Qvov Avi †KD wQ‡jv bv| bvCg ZLb Avgvi kix‡ii wewfbœ RvqMvq Touch KiwQj| Avwg ZLb wPrKvi Kwi| Avgvi wPrKvi ï‡b Avmvgx mv`gvb mvwKd H iæ‡g Av‡m, ZLb mvdvZ wcQb †_‡K †`Š‡o G‡m e‡j jvBU w`m bv I`‡i‡K I‡`i KvR Ki‡Z †`q| Avmvgx mvwKd ZLb †iBbwUª †nv‡Uj †_‡K P‡j hvq iw_ Avgvi wPrKvi ï‡b Avgvi iæ‡g Av‡m ZLb mvdvZ H iæ‡g G‡m †Rvic~e©K iw_‡K Zvi iæ‡g †U‡b wb‡q wM‡q al©b K‡i Ges H mgq bvCg Avkivd Avgv‡K †Rvi c~e©K al©b K‡i|Ó
She stated in her cross-examination that, Ò‡iBbwUª †nv‡U‡j Avwg †¯^”Qvq wM‡qwQjvg| D³ †nv‡U‡j c‡ii w`b mKvj 10:00 Uv ch©šÍ ev`x iw_i mv‡_ wQjvg| Avgvi eÜy kvnwiqvi I †mœnvi mv‡_ ivZ `yBUv ch©šÍ wQjvg| NUbv¯’‡j e‡m wb‡R‡`i g‡a¨ Mí KiwQjvg| She also said that, ÒNUbv¯’‡j Avgv‡`i mevB‡K AvU‡K ivLv nq| gyw³ cvIqvi Rb¨ wPKvi I †Póv K‡iwQ| †Kvb mvnvh¨Kvix cvIqv hvqwb| n‡v‡Uj †_‡K †ei n‡q Py wPwKrmvi Rb¨ hvB| Ab¨ †Kvb Wv³v‡ii wbKU hvBwb| NUbvi w`b kix‡i †Kvb Z nqwb| cywjk‡K †`qv e¯¿ Iqvk Kwiwb| 27/01/2014 Bs Zvwi‡L Avwg weevn K‡iwQjvg| AvMó 2014 wWf‡vm© n‡qwQj| Avwg 22 avivi Revbe›`x‡Z Z`šÍKvix Kg©KZ©vi wbKU weevn ev wWf‡vm© Gi welq ewj bvB| Avwg Wv³vii wbKU eq‡d”Û Gi K_v e‡jwQ GB Rb¨ †h Avwg fvwR©b bv weavq 2013 mv‡ji eq‡d”‡Ûi K_v e‡jwQ|Ó
Two adult girls, accustomed to sexual intercourse 3-4 years before the incident. When claimed that they had been raped 38 days before the case was filed corroboration by independent evidence is necessary prosecution is required to prove the charge by consistent and reliable evidence beound all reasonable doubt. From the evidence of the Raintree hotel employes (PW-2 to PW-12) it is apears that PW-2, Akbar Hossain heard the alleged invident from the police on dated 06.05.2017. PW-7 stated that the party was concluded by 11:00 pm on that night. He heared the incident from police. PW-8 is a security manger of Raintree hotel, stated that no one can enter the hotel with weapons. No one had told him before the police that an unpleasent incident hat taken place at the hotel. So the claim of rape by showing fear with the weapon is not establishe by the evidence produced by prsecution. PW-9 is a executive operation officer at the hotel stated that he knew the incident through the police. PW-11 Forhad Hossen is a house keeper in the hotel Raintree. He stated that he was on duty from 10:00 pm on 28.03.2017 to 8:00 am on next morning. The party was ended at 11:00 pm at night. No men or women were stayed at the hotel after ending the party of that night. This witness is a important as he was stayed in the hotel on that night. He should know if any unpleasent incident happend at the hotel on that night. In the cross examination he replied that, ÒmZ¨ †h †mB iv‡Z †nv‡U‡j cvwU© †k‡l †Kvb gwnjv ev cyiæl †Kn wQj bv g‡g© cywjk‡K e‡jwQ| mZ¨ †h, Avwg ewj †nv‡U‡j †KD wPrKvi K‡i bvB| mZ¨ †h †mw`b †nv‡U‡j Avwg †Kvb A‰bwZK Kvh©Kjvc NU‡Z bv †`Lv| mZ¨ †h cvwU© PjvKv‡j cwi‡ek fvj wQj| D³ cvwU©‡Z Avwg 60/70 Abygvb †jvK †`wL|Ó In the contex of PW-12 he was on duty on that very night in Raintree Hotel. But he did not hear any scream or no one complained any unpleasent incident to the hotel authority or when the party was over every guest left the hotel or no one stayed in the hotel on that night.
On careful assesment it is apears that both the victims, and their friend Shahriar and Sneha went to the hotel for staying there on that night. They reached at the hotel after 9:00 pm, then they were drinking and dancing, they swam in the swiming pool for about an hour. Then they cut the birthday cake on rooftop and they have had dinner at midnight. After having dinner again accused Safat, Nayeem, victim Rothy and Sadia (another victim), Shahriar drank and danced totgather. They were drinking while dancing. At one stage Nayeem have taken away Sadia to another room. They had a glass of alcohol in their hands when they lelf. In the same way Rothy was also drunk. At one point, Safat atarted hugging and kissing Rothy. Seeing this, he felt uncomfortable and left and went home. At arround 1:30 am Safat informed him that there was a problem in the hotel and he was told to go to the hotel immediately. He went back to the hotel and knocked on the Presidents suit. When Safat opened the door, he saw Nayeem beating Shahriar. He asked Safat what had happend, Safat said Rothy was not taking the pill. In the statement accused Sadman Sakif did not say that Safat and Nayeem had detained and raped the victims.
In this case the circumstantial evidence is stands out prominently against the prosecution. It is in the evidence that PW-22 stated in her cross-examination that, †nv‡U‡ji mßg Zjvq GKUv mvwf©m K Av‡Q mZ¨| 7g Zjvq †evW©vi‡`i mvwf©m †`Iqvi Rb¨ †h I‡qUvi wQj Zv‡`i bvg †ei K‡iwQ Ges wRÁvmvev` K‡iwQ| Zv‡`i bvg AvKei †nv‡mb, †Rwfqvi I dinv` †nv‡mb| Zv‡`i‡K wRÁvmvev` K‡i Revbe›`x wjwce× K‡iwQ| NUbvi Zvwi‡L H †nv‡U‡j Ae¯’vbKvix †evW©vi‡`i Rb¨ AvmvgxwfwUg‡`i Qvov Ab¨ KvD‡K wRÁvmvev` Kwi bvB mZ¨|Ó witneesses of the mentioned names came to the court and testified. But all of them stated that they came to the knowledge of the alleged invident throught police officer filing the case. She also stated that. Ò†nv‡U‡ji †iwRóv‡i mKj †evW©vi‡`i bvg, wVKvbv, K›Uªv± b¤^i, AvBwW D‡jøL _v‡K mZ¨| gvgjv PjvKv‡j kvnwiqvi †mœnv, ZvbwRjv, Avwjkv, bvwRqv bvg ¸wj cvIqv †M‡Q mZ¨| Giv NUbvi iv‡Z †iBbwUª †nv‡U‡j G‡mwQj mZ¨|| †mœnv bv‡gi GB †g‡qwU‡K Z`šÍ K‡i cvB bvB| H iv‡Z iw_i Ae¯’vb wel‡q Av‡kcv‡ki evmvi †jvK‡`i‡K wRÁvmvev` Kwi bvB| mvw`qvi evev-gv, fvB-‡evb‡K GB gvgjv wel‡q wRÁvmvev` Kwi bvB| Dfq wfKwUg Gi †gwW‡Kj wic‡vU© ch©vj‡vPbv K‡iwQ| Df‡qi wi‡cvU© Abyhvqx Zv‡`i †`‡n Forceful sexual intercourse n‡q‡Q g‡g© Z_¨ cvIqv hvq bvB| Medical examination Gi mgq Doctor Gi Kv‡Q †`Iqv statement Gi fvl¨ Abyhvqx mvw`qvi eq‡dª‡Ûi mv‡_ 5-6 evi physical relation nq mZ¨| iw_ I e‡j‡Q †m GKR‡bi mv‡_ Gb‡MRW Av‡Q| Zv‡`i GB statement wel‡q Zv‡`i cwiev‡ii †jvK‡`i‡K wRÁvmv Kwi bvB| Kw_Z NUbv¯’‡j NUbvi Zvwi‡L wfKwUg mvw`qv I GRvnviKvix iw_ Dcw¯’Z wQ‡jv ev Ae¯’vb KiwQ‡jv GB g‡g© †nv‡Uj †iwRóv‡i ev wmwmwUwf dz‡U‡R ev †gvevB‡j avibK…Z wfwWI †Z †Kvb Z_¨ cvIqv hvq bvB mZ¨|Ó
It is seen that the evidence of the prosecution in this case are not reliable and worthy of evidence as they lied before the tribunal. It appears that the medical report does not support the commission of rape. The Medical evidence as deposed to by PW-19 Doctor Sohel Mahmud does not prove rape on victim Rothy and Saida, not withstanding the fact that they were examined after 38 days of the occurrence. Wearing cloths of victim was seized and the same was chemically examined but no evidence were found. The victim were adult and accustomed to sexual intercourse so their evidence can not be believed without the corroboration of reliable evidence. Sued long after the incident, not to inform the people of the house after the incident, absence of proof of rape by medical report, above all they filed the case with the help of accused Safat Ahmed’s enemy Faria Mahbub Piyasa, have made the case is doubtful.
This tribunal has seen a lot of rape case of adult victims where are already accustomed to sexual relation came up for trial where victims are medically examined many days after the alleged incident. When the case is filled long after the incident, no clues could be found to prove the sexual violence on the victim. If the matter is taken care of at the time of filling the case and if that victim medially ecamined within 72 hours (as the opinion of medical officer’s of many cases) any signs of rape are found properly and if it is proved through forensic test, it becomes an important document in a rape case. Then the sentence of a person accused in a rape case could be secured and justice could be served in according to that. If both the adult victims had been medically examined soon after the incident or within earliest opportunity then there would be signs of rape in favour of the prosecution or even they filed the case on the following day or immediately after the incident the police could still find the injury marks of sexual violence on their face, cheeks or other parts of their bodies and that would be the documentary evidence. The truth of the incident could not be confirmed as it was filed after a long 38 days from 28-03-2017 and also absence of circumstancial evidence.
In the instant case ex-wife of accused Safat Ahmed namely Faria Mahbub Piyasa was in the police station at the time of filing the case. The has enmity with accused Safat Ahmed. Thought both the victims were suijuris but they did not go to the police station alone to file any case against the accused. After long time of the alleged incident Faria Mahbub Piyasa brought them to police station for Filing a case against her ex-husband. This averment has made the case as an created one. On a careful scrutining of the evidence of prosecution are fall of discrepancies, inconsistencies and not corroborated with any credible evidence and these evidence are unworthy of credit which make strike at the root of the prosecution case and have made the prosecution case doubtful. In the instant case, the prosecution has hopelessly faded to prove it’s ca beyond all shadow of doubt. As such the accused persons are found not guilty of the charges levelled against them and therefore they be entitled to get acquittal. Hence
It is ordered that
That the accused (1) Safat Ahmed, (2) Nayeem Asraf @ H.M. Halim (3) Sadman Sakif, (4) Md. Belial Hossain, (5) Md. Rahmat Ali are not found guilty at the charges levelled against them. Therefore they are acquitted of the charges under Section 9(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain 2000 (as amended is 2003).
The accused persons and their suireties are discharged from their respective bail bond.
The seized alamats be destroyed
in accordance with law.
Dictated by me.
(Most Qumrunnaher) Judge
Nari-O-Shishu Nirjatan
Daman Tribunal-7, Dhaka.
(Most Qumrunnaher)
Judge Nari-O-Shishu Nirjatan
Daman Tribunal-7, Dhaka.
