High Court Division :
(Criminal Revisional Jurisdiction)
ANM Bashir Ullah J
Anwar Hossain (Md) ………….
…….. . Accused-Petitioner
vs
State ….. Opposite Parties*
Judgment
January 23th, 2014.
Dowry Prohibition Act (XXXV of 1980)
Section 4
When the prosecution fails to prove the date of occurrence the question of proving the place and manner of occurrence cannot raise at all. There is strong link among the time, the place and manner of occurrence. Where there is no date of occurrence there cannot be any time, place and manner of occurrence. The Court below without proper appreciation of the evidence on record found the accused guilty under section 4 of the Act. …. (25)
Rafiqul Islam Sohel, Advocate-For the petitioner.
TM Shakil Hossain, Advocate-For the Opposite Party No.2
Md Ashaque Momin, AAG-For the State Opposite Party No.1.
Judgment
In this criminal revision, a Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 24-5-2012 passed by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka in Metropolitan Criminal Appeal No. 866 of 2011 allowing the appeal and reversing the judgment and order of acquittal dated 23-8-2011 passed by the Metropolitan Magistrate, Court No. 22, Dhaka, convicting the accused petitioner under section 4 of the Dowry Prohibition Act and sentencing him to suffer rigorous imprisonment for 4 years and to pay a fine of Taka 5,000 in default to suffer imprisonment for 1 month in CR case No. 3320 of 2008 should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.
2. The facts leading to the issuance of the above Rule, in short, is that the present opposite party No. 2 Mosammat Razia Akter as complainant filed a petition of complaint in the Court of Chief Metropolitan Magistrate, Dhaka against the present petitioner Md Anowar Hossain and others alleging inter alia that she got married with the accused Md Anwar Hossain on 2-1-2007. At the time of marriage the accused has given cash of Taka 1,00,000 (one lakh), furniture at a worth of Taka 1,00,000 (one lakh) and gold ornaments at a weight of 10 voris on behalf of the guardians of the complainant but that could not satisfy the accused who raised his voice for Taka 3,00,000 (three lakhs) on 30-5-2008 in the house of the father of the complainant.
On 13-6-2008 the accused reiterating his earlier demand made serious pressure on the complainant for the said amount at his own residence and he with the help of other inmates of the house assaulted the complainant also.
On 25-7-2008 the complainant in order to save her life from the hands of the accused took shelter in the house of her cousin at Kallyanpur, Mirpur, Dhaka but the accused having been there on 25-7-2008 assaulted her in order to create more pressure for realization of the dowry amount.
3. On the basis of the above petition of complaint cognizance under section 4 of the Dowry Prohibition Act was taken against the accused Anwar Hossain and at trial charge was also framed under the said section of law to which he pleaded his not guilty and claimed to be tried. The prosecution examined 7 witnesses at trial who were cross-examined by the defence and the trial Court on consideration of evidence and other materials on record acquitted the accused from the charge levelled against him by his judgment dated 23-8-2011.
4. The complainant, as against the said judgment preferred the criminal appeal being No. 866 of 2011 in the Court of Metropolitan Sessions Judge, Dhaka and ultimately the appeal was heard by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka who by his impugned judgment and order dated 24-5-2012 convicted the accused petitioner under section 4 of the Dowry Prohibition Act, 1980 sentencing him to suffer rigorous imprisonment for 4 years and to pay fine of Taka 5,000 in default to suffer a simple imprisonment for a further period of 1 month.
5. The convict-petitioner being aggrieved by and dissatisfied with the said judgment arid order of conviction and sentence moved this Court and obtained the present Rule. On the date of issuance of Rule, the petitioner was enlarged on bail for a period of 6 months subsequently the same was extended from time to time till now.
6. Mr Rafiqul Islam Sohel, the learned Advocate appearing for the petitioner sought to impeach the impugned judgment and the order of conviction and sentence of the appellate Court below on the following five folds grounds.
7. Firstly, he submits that though in the criminal appeal, the petitioner Anwar Hossain was respondent No. 1 but he was not notified of the appeal. The appeal was heard in violation of the mandatory provisions of section 422 of the Code of Criminal Procedure (in short, the Code) as such, the total judgment of the appellate Court below is bad and illegal in law.
8. Secondly, the complainant articulating 3 occasions of demanding of dowry to her filed this case and it has been stated in the petition of complaint that on 30-5-2008 the accused demanded dowry in the house of the complainant, on the 2nd occasion on 13-3-2008 the accused demanded dowry in his own house and in consequence of the total occurrence when the complainant took shelter in the house of her cousin at Kallyanpur, Mirpur, Dhaka the accused having been there assaulted the complainant on 25-7-2008.
The learned Advocate also submits that, infact, the complainant in order to invoke the jurisdiction of the Dhaka Court showed one of the place of occurrence at Dhaka stating that the consequence of the occurrence ensued at Dhaka but no occurrence took place within the local jurisdiction of Dhaka Metropolitan Magistracy and the prosecution though examined 7 witnesses in this case but no where in their evidence there is any statement that any occurrence took place within Dhaka in connection of the present case and in that view of the matter the trial by a Court of Dhaka Metropolitan Magistracy has become totally illegal.
9. Thirdly, the learned Advocate submits that though there appears 3(three) occasions of demanding dowry but the prosecution could not prove the demand of dowry to the accused on any date as alleged in the petition of complaint. So the appellate Court below had no any scope to find the petitioner guilty under section 4 of Dowry Prohibition Act.
(To be continued)
10. Fourthly, the learned Advocate submits that the last occurrence of this case allegedly took place on 25-7-2008 at Kallyanpur, Mirpur, Dhaka but Complaint was filed after a reasonable gap on 2-9-2008. So the complainant got ample opportunity to include all the relevant facts of the case in her allegations but the petition of complaint is totally silent in respect of any salish between the parties but the whole evidence is surrounded regarding a Salish between the parties. Infact, no such salish was taken place as stated by the witnesses at trial. The fact of salish is a subsequent embellishment which has been introduced in order to strengthen the prosecution case.
11. Lastly, and finally the learned Advocate submits that the appellate Court below was pleased to find that the prosecution could not prove the date of occurrence but at the same time came to a conclusion that prosecution was able to prove the place and the manner of occurrence. But where there is no any date of occurrence there cannot be any corresponding place and manner of occurrence. In fact, the trial Court on a proper assessment of the evidence on record acquitted the accused but the appellate Court below without considering the evidence and other materials on record very arbitrarily and whimsically found the accused guilty although there was no any evidence in the record of demanding of dowry to the accused. So, the judgment and order of conviction and sentence passed by the appellate Court below is liable to be set aside acquitting the accused from the charge.
12. On the other hand, Mr Md Ashaque Momin, the learned Assistant Attorney-General appearing for the opposite party No. I and Mr TM Shakil Hasan, the learned Advocate appearing for the opposite party No.2 almost in a chorus voice opposing the Rule submits that admittedly Most. Razia Akter was the married wife of accused Anwar Hossain and at the time of marriage in a very customary way the guardians of the complainant had expended a lot of money to satisfy the accused but he was so greedy that nothing was sufficient to satisfy his greed. As a result immediately after marriage the accused raised his voice for Taka 3,00,000 (three lakhs) as dowry and the accused was making continuous pressure for realisation of the said amount and the complainant categorically articulated the date of the said demand of dowry on 30-5-2008 and 13-6-2008 and the same has been proved by the cogent evidence of the prosecution witnesses and when the complainant in order to save her life from the physical and mental torture of the accused took shelter in the house of her cousin at Kallyanpur, Mirpur, Dhaka, the greedy accused also stormed on her on 25-7-2008 and assaulted her and since the consequence of the occurrence of this case had ensued at Dhaka, the case was well maintainable in the Court of Dhaka.
13. They next submit that the complainant when filed the appeal in the Court of Metropolitan Sessions Judge, Dhaka accused Anwar Hossain was made respondent No. I with the state in serial No.2 and the record will go to show that notice was served upon the respondent No. 1.
14. They also submit that when the accused demanded dowry to the complainant, the common relations of both the parties took some initiative for a reconcilation of them and at trial the witnesses who were present in the said salish stated the said fact before the trial Court. Since that is the matter of evidence which did not require to state in the petition of complaint and for non-mentioning about the salish, the accused had not been prejudiced in any way and for that reason the prosecution case cannot be disbelieved at all.
15. They also submit that the trial Court totally failed to appreciate the evidence on record and thereby committed serious error of law and fact in acquitting the accused from the charge but the appellate Court below on proper consideration of evidence and other materials on record came to a very sound conclusion finding the accused guilty under Section 4 of the Dowry Prohibition Act, 1980. So the judgment and order of conviction and sentence of the appellate Court below did not call for any interference from this Court. So the Rule is liable to be discharged with cost.
16. I have considered the above submissions and arguments of the learned Advocates of both the parties with profound attention and have gone through the materials on record.
17. It is admitted that complainant Most. Razia Akter was the married wife of accused Anwar Hossain which took place on 2-1-2007. In a revision under sections 435 and 439 of the Code the law empowers the revisional Court to examine the correctness, legality or propriety of any finding and sentence or order recorded by the appellate Court below.
18. The record of the criminal appeal No. 866 of 2011 goes to show that the appeal was filed on 12-10-2011 which was admitted by the appellate Court on 20-10-2011 fixing 1-3-2012 for LCR and SR. On the following date on 1-3-2012 a order has been recorded in the following manner:
19.A`¨ LCR, SR cvIqv wMqv‡Q, AvcxjKvix cÿ nvwRiv w`qv‡Q| AvMvgx 16-5-2012 Zvwi‡L ïbvbx| The record thus shows that the appeal became ready for hearing on 1-3-2012. On a meticulous perusal of the record there appears no issuance of the notice upon the respondent No.1. There is nothing in the record to show that any notice was served upon the respondent No. 1 Md Anwar Hossain and without issuance of any notice how the appellate Court below got the service return. However, it is evident from the materials on record that no notice was issued and served upon the respondent No. 1 Md Anwar Hossain in connection of the criminal appeal and without service of notice and informing him the appeal was heard in his absence and the judgment was pronounced on 24-5-2012. Section 422 of the Code provides the clear provisions of serving notice upon the accused in an appeal filed under Section 417 of the Code of Criminal Procedure. Most. Razia Akter preferred the criminal appeal against the order of acquittal invoking Section 417 of the Code but no notice was served in view of the provisions of Section 422 of the Code, thus, the appellate Court below committed a serious error of law hearing disposal of the appeal without notifying the accused respondent No. 1 Md Anwar Hossain.
20. The learned Advocate for the petitioner raised serious objection as to the jurisdiction of the Dhaka Metropolitan Magistrate Court in trying the case. Section 170(1) of the Code provides that every offence shall be inquired into and tried by a Court within the local limit of whose jurisdiction it was committed. That is where an offence is committed the same will be tried by a Court fixed for that jurisdiction. Of course Section 179 of the Code also provides that if in consequence of any occurrence is ensued to any other place, the case can be tried by the Court of that particular place. From the trend of petition of complaint it appears that the definite demanding of dowry took place in the house of complainant at Saturia Upazila, secondly in the house of the accused and consequence of the said occurrence allegedly took place at Mirpur in the house of the cousin of the complainant on 25-7-2008. In view of the above provisions of law had there been any occurrence on 25-7-2008 at Mirpur, the Dhaka Metropolitan Magistrate Court was justified to try the case. But on a meticulous perusal of the evidence on record there appears no evidence that any occurrence as alleged in the petition of complainant took place on 25-7-2008 in the house of the cousin of the complainant.
21. The complainant as PW I though uttered the date 25-7-2008 but the same has been uttered to serve other purpose. PW 1 stated that on 30-5-2008 and on 25-7-2008 the accused assaulted her at Kamarpara, Dhamrai in order to realize Taka 300,000 from her. PW 7 Md Abu Bakar Siddique who happens to be the cousin of the complainant and whose residence is at 1/5 Kallyanpur, Mirpur, stated that the complainant took shelter in his house. On going through the evidence of Abu Bakar Siddique it is found that there is nothing in his evidence that accused Anwar Hossain at any point of time rushed to his house inquest of Most. Razia Akter. Abu Bakar Siddique simply said that once Razia Akter came in his house and he took initiative for the treatment of Razia Akter but this evidence does not mean that the consequence of the occurrence of demanding dowry was ever ensued at his residence at Kallyanpur, Mirpur, Dhaka. So it is difficult to find that the Dhaka Metropolitan Magistrate Court had at all jurisdiction to try the case.
22. The learned Advocate for the petitioner argued that there was no evidence in support of the case of demanding dowry although the learned Advocate for the opposite parties submitted that immediate after marriage the accused was demanding dowry continuously. PW I Razia Akter in her evidence stated that the accused was demanding dowry from 2007 and on 30-5-2008 and 25-7-2008 the accused assaulted her at his residence at Dhamrai for Taka 3,00,000. PW 2, Abdul Alim deposed to prove a Salish. PW 3, Kabiluddin deposed to prove the quarrel and bad relation between the husband and wife. PW 4 Mostafa is a hearsay witness in respect of Salish. PW 5 Mojibar Rahman, the full brother of the complainant did not depose to support the definite date of demanding dowry by the accused to his sister. He stated that immediate after marriage, the accused raised his voice demanding dowry. PW 6, Mainuddin deposed to prove the Salish between the parties. PW 7, and the last witness Abu Bakar Siddique also a witness of demanding dowry continuously by the accused. He also failed to support the accurate date of demanding dowry on 30-5-2008 and 25-7-2008 as stated by the PWl. The prosecution though examined 7 witnesses but none of the witness among 2-7 have supported the evidence of PW I that on 30-5-2008 and 25-7-2008 accused demanded dowry to her in presence of any witness. So in view of the evidence given by the prosecution it is found that though the complainant as PW I had marked two days of demanding dowry but none of the remaining prosecution witnesses could have supported the said evidence of PW 1.
23. At trial most of the witnesses highlighted the salish between the parties. In many cases it has been held by this Court that the FIR cannot be treated as the first and last word of the prosecution case rather weight is to be given to the legal evidence adduced by a witness before the Court at the time of trial but in the case of 45 DLR 142 Nazrul Islam vs State it has been held that where FIR does not contain an important fact deposed by the witnesses it is clear that there has been subsequent embellishment of the prosecution case which make it untrustworthy.
24. The last occurrence of the case took place allegedly on 25-7-2008 whereas the petition of complainant was filed on 2-9-2008. The complainant got more than clear one month time to lodge the petition of complaint as such she had the ample opportunity to include the fact of salish reportedly taken between them but the well drafted petition of complaint is totally silent regarding the salish between the parties. In my consideration had there been any occurrence of salish on the burning issue of demanding dowry between the parties that could have been found place in the petition of complaint. The appellate Court below in his judgment opined that the event of Salish is a matter of evidence which need not be required to state in the petition of complaint but this findings of the appellate court below cannot be considered as legal and fair. The manner of salish or the other particulars about the same need not be required to state in the petition of complaint but the so called salish is an important fact between the parties on the burning question of demanding dowry, that should have been found place in the petition of complaint. Since that did not find place in the petition of complaint, the obvious decision would be that infact there was no any such Salish between the parties and had there been any Salish that would have been revealed in the petition of complaint and the very introduction of Salish appears to be a subsequent embellishment which has been introduced in order to strengthen the prosecution case.
25. Now, the last argument of the learned Advocate for the petitioner in respect of the judgment of the appellate Court below that the appellate Court below rightly found that the prosecution could not prove the date of occurrence although at the same time found that the prosecution has been able to prove the place and manner of occurrence. When the prosecution fails to prove the date of occurrence the question of proving the place and manner of occurrence cannot raise at all. There is strong link among the time, the place and manner of occurrence. Where there is no date of occurrence there cannot be any time, place and manner of occurrence. The appellate Court below without proper appreciation of the evidence on record found the accused guilty under Section 4 of the Dowry Prohibition Act.
26. Having regards to the above discussion find that the disposal of the appeal without notifying the respondent No. 1 Anwar Hossain was illegal. On that count and also for the other reasons stated herein above the judgment of the appellate Court below has been suffering from gross illegality which cannot be maintained at all.
27. In the result, the Rule is made absolute.
The judgment and order of conviction and sentence passed by the appellate Court below in criminal appeal No. 866 of 2011 is hereby set aside and the convict-petitioner is acquitted of the charge levelled against him.
Let a copy of the judgment be sent to the concerned Court along with the lower Court’s record.
(Criminal Revisional Jurisdiction)
ANM Bashir Ullah J
Anwar Hossain (Md) ………….
…….. . Accused-Petitioner
vs
State ….. Opposite Parties*
Judgment
January 23th, 2014.
Dowry Prohibition Act (XXXV of 1980)
Section 4
When the prosecution fails to prove the date of occurrence the question of proving the place and manner of occurrence cannot raise at all. There is strong link among the time, the place and manner of occurrence. Where there is no date of occurrence there cannot be any time, place and manner of occurrence. The Court below without proper appreciation of the evidence on record found the accused guilty under section 4 of the Act. …. (25)
Rafiqul Islam Sohel, Advocate-For the petitioner.
TM Shakil Hossain, Advocate-For the Opposite Party No.2
Md Ashaque Momin, AAG-For the State Opposite Party No.1.
Judgment
In this criminal revision, a Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 24-5-2012 passed by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka in Metropolitan Criminal Appeal No. 866 of 2011 allowing the appeal and reversing the judgment and order of acquittal dated 23-8-2011 passed by the Metropolitan Magistrate, Court No. 22, Dhaka, convicting the accused petitioner under section 4 of the Dowry Prohibition Act and sentencing him to suffer rigorous imprisonment for 4 years and to pay a fine of Taka 5,000 in default to suffer imprisonment for 1 month in CR case No. 3320 of 2008 should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.
2. The facts leading to the issuance of the above Rule, in short, is that the present opposite party No. 2 Mosammat Razia Akter as complainant filed a petition of complaint in the Court of Chief Metropolitan Magistrate, Dhaka against the present petitioner Md Anowar Hossain and others alleging inter alia that she got married with the accused Md Anwar Hossain on 2-1-2007. At the time of marriage the accused has given cash of Taka 1,00,000 (one lakh), furniture at a worth of Taka 1,00,000 (one lakh) and gold ornaments at a weight of 10 voris on behalf of the guardians of the complainant but that could not satisfy the accused who raised his voice for Taka 3,00,000 (three lakhs) on 30-5-2008 in the house of the father of the complainant.
On 13-6-2008 the accused reiterating his earlier demand made serious pressure on the complainant for the said amount at his own residence and he with the help of other inmates of the house assaulted the complainant also.
On 25-7-2008 the complainant in order to save her life from the hands of the accused took shelter in the house of her cousin at Kallyanpur, Mirpur, Dhaka but the accused having been there on 25-7-2008 assaulted her in order to create more pressure for realization of the dowry amount.
3. On the basis of the above petition of complaint cognizance under section 4 of the Dowry Prohibition Act was taken against the accused Anwar Hossain and at trial charge was also framed under the said section of law to which he pleaded his not guilty and claimed to be tried. The prosecution examined 7 witnesses at trial who were cross-examined by the defence and the trial Court on consideration of evidence and other materials on record acquitted the accused from the charge levelled against him by his judgment dated 23-8-2011.
4. The complainant, as against the said judgment preferred the criminal appeal being No. 866 of 2011 in the Court of Metropolitan Sessions Judge, Dhaka and ultimately the appeal was heard by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka who by his impugned judgment and order dated 24-5-2012 convicted the accused petitioner under section 4 of the Dowry Prohibition Act, 1980 sentencing him to suffer rigorous imprisonment for 4 years and to pay fine of Taka 5,000 in default to suffer a simple imprisonment for a further period of 1 month.
5. The convict-petitioner being aggrieved by and dissatisfied with the said judgment arid order of conviction and sentence moved this Court and obtained the present Rule. On the date of issuance of Rule, the petitioner was enlarged on bail for a period of 6 months subsequently the same was extended from time to time till now.
6. Mr Rafiqul Islam Sohel, the learned Advocate appearing for the petitioner sought to impeach the impugned judgment and the order of conviction and sentence of the appellate Court below on the following five folds grounds.
7. Firstly, he submits that though in the criminal appeal, the petitioner Anwar Hossain was respondent No. 1 but he was not notified of the appeal. The appeal was heard in violation of the mandatory provisions of section 422 of the Code of Criminal Procedure (in short, the Code) as such, the total judgment of the appellate Court below is bad and illegal in law.
8. Secondly, the complainant articulating 3 occasions of demanding of dowry to her filed this case and it has been stated in the petition of complaint that on 30-5-2008 the accused demanded dowry in the house of the complainant, on the 2nd occasion on 13-3-2008 the accused demanded dowry in his own house and in consequence of the total occurrence when the complainant took shelter in the house of her cousin at Kallyanpur, Mirpur, Dhaka the accused having been there assaulted the complainant on 25-7-2008.
The learned Advocate also submits that, infact, the complainant in order to invoke the jurisdiction of the Dhaka Court showed one of the place of occurrence at Dhaka stating that the consequence of the occurrence ensued at Dhaka but no occurrence took place within the local jurisdiction of Dhaka Metropolitan Magistracy and the prosecution though examined 7 witnesses in this case but no where in their evidence there is any statement that any occurrence took place within Dhaka in connection of the present case and in that view of the matter the trial by a Court of Dhaka Metropolitan Magistracy has become totally illegal.
9. Thirdly, the learned Advocate submits that though there appears 3(three) occasions of demanding dowry but the prosecution could not prove the demand of dowry to the accused on any date as alleged in the petition of complaint. So the appellate Court below had no any scope to find the petitioner guilty under section 4 of Dowry Prohibition Act.
(To be continued)
10. Fourthly, the learned Advocate submits that the last occurrence of this case allegedly took place on 25-7-2008 at Kallyanpur, Mirpur, Dhaka but Complaint was filed after a reasonable gap on 2-9-2008. So the complainant got ample opportunity to include all the relevant facts of the case in her allegations but the petition of complaint is totally silent in respect of any salish between the parties but the whole evidence is surrounded regarding a Salish between the parties. Infact, no such salish was taken place as stated by the witnesses at trial. The fact of salish is a subsequent embellishment which has been introduced in order to strengthen the prosecution case.
11. Lastly, and finally the learned Advocate submits that the appellate Court below was pleased to find that the prosecution could not prove the date of occurrence but at the same time came to a conclusion that prosecution was able to prove the place and the manner of occurrence. But where there is no any date of occurrence there cannot be any corresponding place and manner of occurrence. In fact, the trial Court on a proper assessment of the evidence on record acquitted the accused but the appellate Court below without considering the evidence and other materials on record very arbitrarily and whimsically found the accused guilty although there was no any evidence in the record of demanding of dowry to the accused. So, the judgment and order of conviction and sentence passed by the appellate Court below is liable to be set aside acquitting the accused from the charge.
12. On the other hand, Mr Md Ashaque Momin, the learned Assistant Attorney-General appearing for the opposite party No. I and Mr TM Shakil Hasan, the learned Advocate appearing for the opposite party No.2 almost in a chorus voice opposing the Rule submits that admittedly Most. Razia Akter was the married wife of accused Anwar Hossain and at the time of marriage in a very customary way the guardians of the complainant had expended a lot of money to satisfy the accused but he was so greedy that nothing was sufficient to satisfy his greed. As a result immediately after marriage the accused raised his voice for Taka 3,00,000 (three lakhs) as dowry and the accused was making continuous pressure for realisation of the said amount and the complainant categorically articulated the date of the said demand of dowry on 30-5-2008 and 13-6-2008 and the same has been proved by the cogent evidence of the prosecution witnesses and when the complainant in order to save her life from the physical and mental torture of the accused took shelter in the house of her cousin at Kallyanpur, Mirpur, Dhaka, the greedy accused also stormed on her on 25-7-2008 and assaulted her and since the consequence of the occurrence of this case had ensued at Dhaka, the case was well maintainable in the Court of Dhaka.
13. They next submit that the complainant when filed the appeal in the Court of Metropolitan Sessions Judge, Dhaka accused Anwar Hossain was made respondent No. I with the state in serial No.2 and the record will go to show that notice was served upon the respondent No. 1.
14. They also submit that when the accused demanded dowry to the complainant, the common relations of both the parties took some initiative for a reconcilation of them and at trial the witnesses who were present in the said salish stated the said fact before the trial Court. Since that is the matter of evidence which did not require to state in the petition of complaint and for non-mentioning about the salish, the accused had not been prejudiced in any way and for that reason the prosecution case cannot be disbelieved at all.
15. They also submit that the trial Court totally failed to appreciate the evidence on record and thereby committed serious error of law and fact in acquitting the accused from the charge but the appellate Court below on proper consideration of evidence and other materials on record came to a very sound conclusion finding the accused guilty under Section 4 of the Dowry Prohibition Act, 1980. So the judgment and order of conviction and sentence of the appellate Court below did not call for any interference from this Court. So the Rule is liable to be discharged with cost.
16. I have considered the above submissions and arguments of the learned Advocates of both the parties with profound attention and have gone through the materials on record.
17. It is admitted that complainant Most. Razia Akter was the married wife of accused Anwar Hossain which took place on 2-1-2007. In a revision under sections 435 and 439 of the Code the law empowers the revisional Court to examine the correctness, legality or propriety of any finding and sentence or order recorded by the appellate Court below.
18. The record of the criminal appeal No. 866 of 2011 goes to show that the appeal was filed on 12-10-2011 which was admitted by the appellate Court on 20-10-2011 fixing 1-3-2012 for LCR and SR. On the following date on 1-3-2012 a order has been recorded in the following manner:
19.A`¨ LCR, SR cvIqv wMqv‡Q, AvcxjKvix cÿ nvwRiv w`qv‡Q| AvMvgx 16-5-2012 Zvwi‡L ïbvbx| The record thus shows that the appeal became ready for hearing on 1-3-2012. On a meticulous perusal of the record there appears no issuance of the notice upon the respondent No.1. There is nothing in the record to show that any notice was served upon the respondent No. 1 Md Anwar Hossain and without issuance of any notice how the appellate Court below got the service return. However, it is evident from the materials on record that no notice was issued and served upon the respondent No. 1 Md Anwar Hossain in connection of the criminal appeal and without service of notice and informing him the appeal was heard in his absence and the judgment was pronounced on 24-5-2012. Section 422 of the Code provides the clear provisions of serving notice upon the accused in an appeal filed under Section 417 of the Code of Criminal Procedure. Most. Razia Akter preferred the criminal appeal against the order of acquittal invoking Section 417 of the Code but no notice was served in view of the provisions of Section 422 of the Code, thus, the appellate Court below committed a serious error of law hearing disposal of the appeal without notifying the accused respondent No. 1 Md Anwar Hossain.
20. The learned Advocate for the petitioner raised serious objection as to the jurisdiction of the Dhaka Metropolitan Magistrate Court in trying the case. Section 170(1) of the Code provides that every offence shall be inquired into and tried by a Court within the local limit of whose jurisdiction it was committed. That is where an offence is committed the same will be tried by a Court fixed for that jurisdiction. Of course Section 179 of the Code also provides that if in consequence of any occurrence is ensued to any other place, the case can be tried by the Court of that particular place. From the trend of petition of complaint it appears that the definite demanding of dowry took place in the house of complainant at Saturia Upazila, secondly in the house of the accused and consequence of the said occurrence allegedly took place at Mirpur in the house of the cousin of the complainant on 25-7-2008. In view of the above provisions of law had there been any occurrence on 25-7-2008 at Mirpur, the Dhaka Metropolitan Magistrate Court was justified to try the case. But on a meticulous perusal of the evidence on record there appears no evidence that any occurrence as alleged in the petition of complainant took place on 25-7-2008 in the house of the cousin of the complainant.
21. The complainant as PW I though uttered the date 25-7-2008 but the same has been uttered to serve other purpose. PW 1 stated that on 30-5-2008 and on 25-7-2008 the accused assaulted her at Kamarpara, Dhamrai in order to realize Taka 300,000 from her. PW 7 Md Abu Bakar Siddique who happens to be the cousin of the complainant and whose residence is at 1/5 Kallyanpur, Mirpur, stated that the complainant took shelter in his house. On going through the evidence of Abu Bakar Siddique it is found that there is nothing in his evidence that accused Anwar Hossain at any point of time rushed to his house inquest of Most. Razia Akter. Abu Bakar Siddique simply said that once Razia Akter came in his house and he took initiative for the treatment of Razia Akter but this evidence does not mean that the consequence of the occurrence of demanding dowry was ever ensued at his residence at Kallyanpur, Mirpur, Dhaka. So it is difficult to find that the Dhaka Metropolitan Magistrate Court had at all jurisdiction to try the case.
22. The learned Advocate for the petitioner argued that there was no evidence in support of the case of demanding dowry although the learned Advocate for the opposite parties submitted that immediate after marriage the accused was demanding dowry continuously. PW I Razia Akter in her evidence stated that the accused was demanding dowry from 2007 and on 30-5-2008 and 25-7-2008 the accused assaulted her at his residence at Dhamrai for Taka 3,00,000. PW 2, Abdul Alim deposed to prove a Salish. PW 3, Kabiluddin deposed to prove the quarrel and bad relation between the husband and wife. PW 4 Mostafa is a hearsay witness in respect of Salish. PW 5 Mojibar Rahman, the full brother of the complainant did not depose to support the definite date of demanding dowry by the accused to his sister. He stated that immediate after marriage, the accused raised his voice demanding dowry. PW 6, Mainuddin deposed to prove the Salish between the parties. PW 7, and the last witness Abu Bakar Siddique also a witness of demanding dowry continuously by the accused. He also failed to support the accurate date of demanding dowry on 30-5-2008 and 25-7-2008 as stated by the PWl. The prosecution though examined 7 witnesses but none of the witness among 2-7 have supported the evidence of PW I that on 30-5-2008 and 25-7-2008 accused demanded dowry to her in presence of any witness. So in view of the evidence given by the prosecution it is found that though the complainant as PW I had marked two days of demanding dowry but none of the remaining prosecution witnesses could have supported the said evidence of PW 1.
23. At trial most of the witnesses highlighted the salish between the parties. In many cases it has been held by this Court that the FIR cannot be treated as the first and last word of the prosecution case rather weight is to be given to the legal evidence adduced by a witness before the Court at the time of trial but in the case of 45 DLR 142 Nazrul Islam vs State it has been held that where FIR does not contain an important fact deposed by the witnesses it is clear that there has been subsequent embellishment of the prosecution case which make it untrustworthy.
24. The last occurrence of the case took place allegedly on 25-7-2008 whereas the petition of complainant was filed on 2-9-2008. The complainant got more than clear one month time to lodge the petition of complaint as such she had the ample opportunity to include the fact of salish reportedly taken between them but the well drafted petition of complaint is totally silent regarding the salish between the parties. In my consideration had there been any occurrence of salish on the burning issue of demanding dowry between the parties that could have been found place in the petition of complaint. The appellate Court below in his judgment opined that the event of Salish is a matter of evidence which need not be required to state in the petition of complaint but this findings of the appellate court below cannot be considered as legal and fair. The manner of salish or the other particulars about the same need not be required to state in the petition of complaint but the so called salish is an important fact between the parties on the burning question of demanding dowry, that should have been found place in the petition of complaint. Since that did not find place in the petition of complaint, the obvious decision would be that infact there was no any such Salish between the parties and had there been any Salish that would have been revealed in the petition of complaint and the very introduction of Salish appears to be a subsequent embellishment which has been introduced in order to strengthen the prosecution case.
25. Now, the last argument of the learned Advocate for the petitioner in respect of the judgment of the appellate Court below that the appellate Court below rightly found that the prosecution could not prove the date of occurrence although at the same time found that the prosecution has been able to prove the place and manner of occurrence. When the prosecution fails to prove the date of occurrence the question of proving the place and manner of occurrence cannot raise at all. There is strong link among the time, the place and manner of occurrence. Where there is no date of occurrence there cannot be any time, place and manner of occurrence. The appellate Court below without proper appreciation of the evidence on record found the accused guilty under Section 4 of the Dowry Prohibition Act.
26. Having regards to the above discussion find that the disposal of the appeal without notifying the respondent No. 1 Anwar Hossain was illegal. On that count and also for the other reasons stated herein above the judgment of the appellate Court below has been suffering from gross illegality which cannot be maintained at all.
27. In the result, the Rule is made absolute.
The judgment and order of conviction and sentence passed by the appellate Court below in criminal appeal No. 866 of 2011 is hereby set aside and the convict-petitioner is acquitted of the charge levelled against him.
Let a copy of the judgment be sent to the concerned Court along with the lower Court’s record.
