Appellate Division Cases
Md. Moynul Hoque …………….Petitioner ( In Crl. P.No. 162 of 2001)
Md. Abdus Satter ……………….Petitioner (In Crl. P. No. 171 of 2001)
Syed J.R. Mudassir Hussain C.J.
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATED : 13th March 2004
The Nari-O-Shishu Nirjatan (Bishesh Bidhan) Act (XVIIIof 1995), Section 6(4), 32
18 DLR (WP) 91, 27 DLR (AD)1, 38 DLR(AD) 311, 8 B.L.D. (AD) 154, 10
B.L.D. (AD) 228.
Case of custodial death, death of the victim caused while she was in the custody of the accused and therefore the onus lies on them to explain the circumstances leading to her death………………………. ……………………………….There is no eye witness to prove the charge levelled against the accused but the circumstances are so well kint that the circumstances so revealed indicate no other hypothesis than that of the guilt of the accused and there being clear circumstantial evidence of commission of rape and subsequent death under the custody of the condemned prisoners, the High Court Division rightly accepted the Reference and so there is no illegality in the impugned judgment (7)
The accused did not deny as to the custody. The explanation given by them has already been found to be fake and concocted. As such we cannot but find that the accused cannot be absolved of the quilt (11)
It appears that section 2(c) of the Act provides that word rape Carries the same meaning as referred to in section 375 of the Penal Code. It appears that definition of rape in the special law remains the same as was defined in Act 45/1860 that means that the prosecution must prove in this case that the victim was subject to sexual intercourse against her will and without her consent (16)
In order to constitute rape mere penetration in the membranous passage or channel leading from uterus to the vulva is sufficient and presence of spermatozoa or even injuries or marks of violence or tearing of hymen is not at all necessary to prove rape (18)
Section 32 of the Penal Code punishable under section 6(4) of the Act ” The other argument that there has been a moral conviction than a legal conviction does not appeal to us at all as we have found that the conviction is based on sufficient evidence and as such is legal (19)
Abdul Malek, Senior Advocate, (Mr. Kazi Shahadat Hossain, Advocate with him) instracted by Md. Nowab Ali, Advocate-on-Record……………………………….. For the Petitioner (In both the Cases)
Abdur Razaque Khan Additional Attorney General, (Md. Faisal H. Khan, Assistent Attorney General, with him) instracted by Mr. Ahashanullah Patwary, Advocate-on-record…………………………..For the Respondent (In bith the Cases)
1. Amirul Kabir Chowdhury J: Criminal Petition for Leave to Appeal No. 162 of 2001 has been preferred by condemned prisoner Md. Moinul Haque while Petition No. 171 of 2001 is at the instance of other condemned petitioner Md. Abdus Sattar, Both the petitions are against the judgment and order dated 27.5.2001 and 28.5.2001 passed by a Division Bench of the High Court Division accepting the Death Reference No. 14 of 1997. By the said judgment Criminal Appeal No. 1704 of 1997, Jail Appeal No. 1721 of 1997 preferred by condemned prisoner Md. Moinul Hoque, and Jail appeal No. 1720 of 1997 filed by condemned prisoner Md. Abdus Sattar have also been dismissed. Another condemned prisoner Sree Amirita Lai Barman filed Criminal Appeal No. 1722 of 1997 which has also been dismissed by the same judgment. In the meantime, the aforesaid Sree Amirita Lai Barman filed Criminal Appeal No. 1722 of 1997 which has also been dismissed by the same judgment. In the meantime, the aforesaid Sree Amirita Lai barman is said to be dead.
2. Both the petitions arising out of the same judgment are disposed of by this judgment. 3. The condemned petitioners along with another were tried under section 6(4) of Nari-o-Shishu Nirjatan ( Bishesh Bidhan) Act, 1995 hereinafter referred to as the Act on the charge of committing gang rape upon one Yasmin and causing her death . Prosecution case, in brief, is that one Yasmin aged about 18 years was on 24.8.1995 going from Dhaka to Dinajpur but she boarded on a bus going to Panchagar from Dhaka and therefore, supervisor of the said bus took her to a tea stall owner at a place known as DASH MILE POINT requesting him to facilitate the girl to go to Dinajpur by any Bus bound for Dinajpur and that after a while a police pick up came there driven by accused constable Amirita Lai Barman ( since dead) who was accompanied by A.S.I. Moinul Haque sitting beside him and constable Abdus Sattar sitting in the back side of the said pick up and that the three police personnel came down from the pick up seeing the crowed discussing about the girl and made queries as to what had happened there and they found the girl and one Sree Joyenta Kumer Chakravarty ( P.W. 6) who was also a co- passenger in the aforesaid bus and that while the aforesaid police personnel come to know that the girl was on her way to Dinajpur they volunteered to take her in their pick-up so that she could reach her destination through them and asked the girl to board on the though the girl was hesitant at first but later she boarded on the pick up and the pick-up then left the place but on the following morning her dead body was found beside DASH MILE MAHA SARK near BRAC office at North Gobindapur and the aforesaid ASI Moinul Haque made General Diary No. 957 dated 24.8.1995 with Kotwali Police Station informing the incident and adding that she jumped from the pick up and was found dead and then they out of nervousness left her beside the road came back and that Dafader Ahmed Ali @ Bhelu ( P.W. 11) also gave information of the dead body to the said Police Station on the basis of which another General Diary was entered. Thereafter U.D. Case No. 82 of 1995 dated 24.8.1995 was started. Inquests being held postmortem examinations took place and a regular case being Kotwali Police Case No.6 dated 4.9.1995 was started against the aforesaid police personnel and thereafter they were challaned in the case and during trial, charge was framed under section 6(4) of the Act to which they pleaded not guilty claiming to be tried and then the Tribunal recorded evidence and convictyed them under section 6(4) of the Act as already mentioned above and made the Death Reference which being accepted dismissiong the appeals the two condemned prisoners Md. Moinul haque and Abdus Sattar preferred the instant petitions.
4. In support of the petitions Mr. Abdul Malek, learned Senior Advocate appeared with Mr. Kazi Shahadat Hossain, Advocate. In their submissions they assailed the imugned judgment submitting, inter alia, that prosecution failed to prove the case which is improbable and that there being two different medical reports, the first one being favorable to the accused, they ought to have been given the benefit and that the High Court Division committed error in not properly sifting the evidence of witnesses, specially the evidence of P.W.I the informant and the case disclosed in the Firs Information Report itself has not been considered. It has been further submitted that according to P.W.I the victim jumped within 2/3 minutes of her boarding the pick up and that case the accused did not get chance to rape her and the sign of rape disclosed in the medical reports, if any, indicates that she had been raped earlier by
P.W.6 Sree Joyenta Kumar Chakravarty on their way from Dhaka. 5. Lastly, it is has been argued that the judgment is based on moral conviction in lieu of legal conviction because the circumstances do not support the prosecution case which do rather support the defence case.
6. In support of the submissions Mr. Kazi Shahadat Hossain cited the decisions in the cases of Shan Khan Vs. The State reported in 18 DLR (WP) 91, Abdur Rashid Vs. The State in 27 DLR (AD) 1, Muslimuddin & ors. Vs. The State in 38 DLR (AD) 311, Saidur Rahman Neuton and others and others Vs. State in 8 B.L.D. (AD) 154, The State Vs. Khadem Mondal in 10 B.L.D. (AD) 228.
7. Mr. Abdur Razaque Khan, the learned Additional Attorney General, opposing the petitions on the other hand, submits that this is a case of custodial death, death of the victim caused while she was in the custody of the accused and therefore the onus lies on them to explain the circumstances leading to her death but in the instant case the explanation offered by the defence that the victim jumped from the running pick up has been belied by the circumstances revealed and referring to the materials on record including the Postmortem Reports dated 24.8.1995 and 30.8.1995 coupled with the evidence of P.Ws. 45, 46 and 49 he submits that from the postmortem reports and the evidence there is clear sign of rape on the victim girl and that according to the Medical Rports her death was due to as phyxia as a resulf of throttling followed by head injury and she was raped. He, however, submits that there is no eye witness to prove the charge levelled against the accused but the circumstances are so well kint that the circumstances so revealed indicate no other hypothesis than that of the guilt of the accused and there being clear circumstantial evidence of commission of rape and subsequent death under the custody of the condemned prisoners, the High Court Division rightly accepted the Reference and so there is no illegality in the impugned judgment.
8. It appears that the prosecution produced 50 witnesses while the defence did not adduce any evidence. The defence case did not adduce any evidence. The defence case disclosed in the cross examination is that the victim herself jumped from the pick-up within 2/3 minutes of her boarding on the pick up and she being found dead, they felt nervous and being unable to take decision kept her dead body beside the road and they are innocent.
9. P.W. 1 Md. Afzal Hossain is the informant of the case who in his evidence narrated the occurrence following the general diary lodged by condemned prisoner Moinul Haque. Thereafter he added that the victim Yasmin was found on the road to the east of Sadhana Adibashi Government Primary School and that as a resulf of adverse reaction in the locality the dead body of Yasmin was disinterred and fresh inquest was made by Selina Shadat, Magistrate (P.W-21) and another postmortem examination took place by a Medical Board headed by Dr. Motlub Ahmed (P.W.45) wherin P.Ws.46 and 49 were also members. P.W.2 Most. Sharifa Khatun mother of Yasmin identified her.
P.W.4 Khorshed Alam supervisor of the Bus belonging to Hasna Transports deposed that the Bus proceeded from Dhaka to Panchagar on 24.8.1995 and they found that Yasmin, one of the pressengers in the Bus, was to go to Dinajpur and so he got down from the Bus at about 3.30 A.M at DASH MILE POINT and handed over her to the Tea Stall owner. P.W-6 Sree Joyenta Kumer Chakravarty deposed that he came to Gabtali to go to Dinajpur and boarded on the bus in question belonging to Hasna Transport and got down from the bus at aforesaid Dash Mile Point and saw that P.W.4 Khorshd Alam got down from the bus with the girl and requested the shopkeeper to helf her to go to Dinajpur through any bus bond for Dinajpur and that sometimes after a police pick up came there and the three accused police personnel came down from the Van and enquired of them and they asked the girl to board on the pickup but the girl was hesitant and while the driver rebuffed her she boarded on the pickup and that in the front seat of the van two of them were sitting while the third one was sitting at the back. In cross examination he stated that he went to Dhaka for admission in Natordame College and he denied that he elopped with the girl. Similarly P.W. 7 Md. Jabed Ali having a battle leaf shop at DASH MILE POINT narrated how the girl was taken in the pick-up of the accused police personnel. He also stated that the Sadhana Adibashi Government Primary School was at a distance of about 500 to 600 yards off from his shop where the supervisor of the Bus handed over the girl to him. He stated in cross-examination that after 112 minute the supervisor again came down and requested the boy i.e. P.W-6 to take care of the girl. P. W. 9 Md. Hafizul Islam. P.W.12 Md. Nurul Huda, P.W. 13 Md. Abdur Rahim and P.W.31 Kazi Hares in their deposition corroborated the fact as to carrying the victim girl in the pick up of the accused. P. W. 11. Ahamed Ali alias Bhelu, a dafader, on seeing the dead body near Sadhana Adibashi Government Primary School gave information to the police station. From his evidence it appears that Sadhana Adibashi Government Primary School is situated about 100 yards off toward north from the place where the dead body was found. P.W. 13 md. Abdur Rahim in his evidence deposed that he was manager of the Tea Stall of one Jainal, situated at DASH MILE POINT who corroborated other witnesses as to carrying the victim girl by the accused police personnel and further deposed that on the following morning a boy gave him sandle which was found in the school filed of the aforesaid Sadhana Adibashi Primary School and the said sandle belonged to the deceased Yasmin and it had subsequently been seized by the police. From the evidence of P.W.45 Dr. Motlub Ahmed, P.W. 46 Dr. Kamrun Nessa and
P.W.49 Dr. Amirul Hossain Chowdhury it appears that the medical board after holding postmortem examination found a number of injuries including, both the labia majora and minora found congested with three finger dilatation of vaginal canal with congestion” The report further reveals that on dissection trackea oesophagus and both the lungs were found highly congested. Membrain found congested. The Doctors holding the Postmortem Examination opined that death was due to asphyxia followed by inter cranial haomorrange as a result of throttling followed by head injury and she was raped.
10. On examination of the evidence of witnesses including P.Ws. 4,6,7,9,12 and 13 it is evident that Yasmin was taken under the custody of the three accused police personnel. It is also not denied by them. From the evidence it is also clear that he dead body was found on the following morning beside the road. The accused do not deny this aspect also. Their case is that she jumped from the running pick up while the pick-up was proceeding towards Dinajpur. But there is no evidence whatsoever in support of the said story made by defence. From the Medical reports it appears that there is sign of rape of the victim girl before her death and the death has been caused by throttling. The defence has suggested to P.W. 6 that on the way from Dhaka he had sexual intercourse with her. The suggestion, however, has been denied by the witness. It is nobodys case that after starting from Gabtali, Dhaka there was any occasion for P.W. 6 to take her to any other place and to have sexual intercourse with her and so the suggestion appears to be a desperate and vain bid to save the skin the accused. The bus did not stop anywhere in the way to ficilitate the commission of the offence alleged against P.W-6. There being no evidence nor any circumstance appearing in support of such wild suggestion, we are of the view that the plea raised by the defence has no leg to stand. The girl being in the custody of the accused and later being found dead lying beside the road and from medical evidence there being sign of rape, the usual conclusion is that of commission of rape on her and causing her death which is based on the evidence mentioned above.
11. Now the question is as to who has/ have committed it ? In view of the Medical evidence mentioned above the defence suggested that P.W.6 had sexual intercourse. But we have already found that the suggestion has not been proved and that it has been established that the accused personnel took custody of the girl who was found dead lying beside the road having sign of rape on her. The accused did not deny as to the custody. The explanation given by them has already been found to be fake and concocted. As such we cannot but find that the accused cannot be absolved of the quilt.
12. From the side of the condemned prisoners it has been argued that the prosecution case is improbable and that it has failed to prove the case. In view of what has been stated above the submission has no substance. In view of the evidence mentioned above the prosecution appears to have succeeded to prove the case beyond reasonable doubt and as such it cannot be said that the prosecution case is improbable. 13. It has been submitted that 2(two) Medial Reports being different from one another, the one favourable to the accused is required to be considered in favour of the accused giving benefit thereof to the defence. The High Court Division has considered the point as follows:
“Since the first postmortem report also found the perieum and the vagina congested and since the first report also found the blood and clots found inside the injury Nos. 1 and 2 we do not find any conflict in substance between the two postmortem reports and thus the reports exhibit .A and 14 and the evidence of P.Ws. 45,46 and 49 have proved beyond all reasonable doubt that victim was subjected to rape and then done to death by throttling. This is also supported by the first inquest report prepared by the investigating officer of the U.D Case No. 82 of 1995 exhibit. II, which show abrasion and laceratiction in the private part of the victim.” The submission as to non-consideration of the Medical Report favourable to the defence, has been correctly addressed and as such this submission does not sustain.”
14. The learned Advocates of the condemned prisoner claimed that in the impugned judgment there is no sifting of evidence but it appears that the High Court Division while accepting the Reference elaborately discussed the evidence sifting the same. Much emphasis has been laid on behalf of the condemned prisoners pointing out the evidence of P.W. 1 Md. Afzal Hossain and placing some portions from the first Information Report, lodged by the said witness, indicating that the deceased jumped from the pick-up. It has been argued that this portion of the evidence has not been considered properly and as such the High Court Division committed error. It appears that P.W.I Md. Afzal Hossain, a police officer, was deposing in the case in which three police personnedl were facing trial. It is on record that police did not co operate properly in he disposal of case for obvious reasons. P.W 21 Selina Shadat, a Magistrate deposed that she tried to get assistance of police while disinterring the dead body of the deceased but inspite of repeated requests police did not co-operate and therefoe, she had to take shelter of BDR and with the help of BDR she succeeded to disinter the dead body. Be that as it may .
P.W. 1 himself admitted in his evidence that the portion of his statement as to jump of the girl from pick up etc. had been made following general diary lodged by A.S.I. Moinul Haque who himself was an accused and is now a condemned prisoner. On going trough the whole judgment we find that the High Court Division as already mentioned above examined the evidence and sifted the same legally and thus came to the decision.
15. It has been argued that the victim jumped from the pickup within 2/3 minutes from the time of her boarding the vehicle and so how she cluld be raped before death. It is in evidence that at about 4 A.M she was picked up by accused on their Van and Accused Moinul lodged the General Diary at 6.25 A.M It appears that the place of occurrence is about kilometers from the police station. There is no explanation as to what had happened during this long time from 4 A.M. upto lodging the Diary at 6.25 A.M. though the distance from the place of occurrence to the police station is only of 6 kilometers. There being such a gap and no satisfactory explanation coming from the side of the accused, the argument of the learned Additional Attorney General that during the time it wat very much possible for the accused to commit rape at any place in between the place of recovery of dead body and ADASH MILE POINT, cannot be brushed aside.
16. It has lastly been argued that there is no ingredient of Section 6(4) of the Act and as such the High Court Division Committed error in convicting the condemned prisoners under the aforesaid provision of law. It appears that the High Court Division quating the aforesaid provision of law observed:
“It appears that section 2(c) of the Act provides that word rape Carries the same meaning as referred to in section 375 of the Penal Code. It appears that definition of rape in the special law remains the same as was defined in Act 45/1860 that means that the prosecution must prove in this case that the victim was subject to sexual intercourse against her will and without her consent.”
17. We have already considered the presence of multiple injuries on the body of the victim as well as in the perineum and in the labia majora and minora of the vagina of the victim girl including various marks of violence on her shoulder which clearly shows that she was subjected to sexual intercourse agaisnt her will and without consent. Therefore we have no hesitation to hold that the ingredients of section 375 of the Penal Code have been proved beyond all reasonable doubt. The girl was raped and then done away to death which has been proved by evidence of throttling as her teeth was found beaten. No other explanation is coming forth other than of course the theory of jump as disclosed by exhibit. 13 the G.D. No. 957 which is divorced from reality. 18. In order to constitute rape mere penetration in the membranous passage or channel leading from uterus to the vulva is sufficient and presence of spermatozoa or even injuries or marks of violence or tearing of hymen is not at all necessary to prove rape’ Regarding the guilt of the condemned prisoners the High Court Division further observed:”the learned Advocate appearing for the appellant Abdus Satter submits that G.D. No. 957 cannot be believed in piece in isolation of the other part. It must be believed as a whole or not at all. In this connection the learned Deputy Attorney General has referred to the case of The state vs. Mushtaq Ahmed reported in PLD 1973 (SC) 418 wherein it was held ‘Moreover it has been ruled by this court in a number of recent cases, that having regard to the social conditins obtaining in this country, the principle falsus in uno, falsus in omnibus cannot be made applicable to the administration of criminal justice and therefore Courts are under a duty of sift ” Chaff from the grain’ In the light of the decision reported in PLD 1973 (SC) 418 we hold thai the plea of jump is inconsistent with the facts proved. Therfore it can be ignored and the other facts appearing in exhibits. 13 G.D No. 957 may be and should be believed. It is true that exhibit. 13 is a report only by the accused Moinul Haque where it also inlcudes names of 2 other prove what role was played by each of the 3(three) accuseds in the rape and killing of the victim. In such circumstances should each of the 3(three) accuseds can be found guilty under section 6(4) of the Act”
19. As we have already seen that the 3 condemned prisoners were in the pick up. All the 3(three) were seen getting down from the pick up which is material exhibit. Ill at 5.55 A.M at Kotwali Police Station as stated by the eye witnesses. It is not necessary to prove individual overt act to connect them with the offence under section 6(4) which according to us provides for punishment both for individual as well as for constructive liability of a gang. It is very pertinent to note the ward ‘gang’ and the word cause ‘death’ as has been used to make not only the acts but also omission as defined in section 32 of the Penal Code punishable under section 6(4) of the Act ” The other argument that there has been a moral conviction than a legal conviction does not appeal to us at all as we have found that the conviction is based on sufficient evidence and as such is legal.
20. The inculpatory facts furnished by the circumstances appearing from the evidence as discussed above are incompatible with the innocence of the petitioners. The defence taken by them that after finding the victim Yasmin dead they took her dead body from the pick-up to the roadside and kept it there appears to be untrue and therefore the High Court Division disbelieved the same. In view of the circumstances revealed we do not find any reason to hold any other view.
21. We have perused the decisions cited on behalf of the petitioners. In the decision in 18 DLR (WP) 91 the facts are distinguishable. Moreover, in the present case the postmortem reports indicate that there are clear signs of rape upon the victim. So the decision is not applicable in the present case.
22. Regarding the decision reported in 8 BLD(Ad) 154 it appears that the order of conviction was set aside as there was no appreciation of the evidence of the witnesses nor the circumstance in which Mazid and accused received a fatal injury was explained which thereby remained a moisture and therefore the judgment was set aside abut in the instant case the facts are different.
23. Regarding the decision reported in 10 BLD(AD) 154 it appears that this court held that in a charge of murder moral conviction is not substitute for legal evidence. But in the instant case there being strong circumstantial evidence incapable of explanation upon any other reasonable hypothesis than that of the guilt of the petitioners this decision also does not help the defence as in the present case there is no moral conviction as we have already mentioned above. The other decisions cited on behalf of the petitioners have no bearing with the facts of the present case.
24. On perusal of the impugned judgment we find that the High Court Division came to correct finding and there is nothing to interfere. We, therefore, do not find any substance in the petitions.
The two petitions are accordingly dismissed.
Source : III ADC (2006), 48.