Appellate Division Cases
(Criminal)
PARTIES
Md. Wasim Mia ……………………………Appellant
-Vs-
The State, represented by the Deputy Commissioner, Netrokona ………………………………….Respondent
JUSTICE
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J
JUDGEMENT DATE: 8th November 2006
The Nari-O-Shishu Nirjaton Daman Ain 2000, Sections 7/9(1 )/30 Section 9(1) read with Section 30 of the Act
High Court Division committed error in the decision ignoring the fact that out of 15
witnesses, none, including the informant and the victim herself or even the Medical
officer who examined the Victim, supported the prosecution case and P.W. 15 being
the investigating officer is formal witness who, therefore, proved nothing against the
accused and that the High Court Division committed error in not considering that in
the statement made before the court, the Victim or her mother deposed nothing
against the appellant and the statement, if any, made before the police or even before a Magistrate cannot legally be relied on the pass an order of conviction inasmuch as no witness deposed to that effect in the court and that P.W. 4 the medical officer in his evidence clearly stated that in his opinion there was no sign of physical assault or forceful sexual intercourse. But the High Court Division relying upon the words “Hymen Ruptured” ignoring the testimony of the Medical Officer (P.W.14) passed the impugned judgment without considering the fact that on attaining puberty “Hymen” may become ruptured and there being no sign of rape no offence has been disclosed as contemplated under Section 9(1) of the Ain……………………..(4)
Prosecution could not prove the charge against the appellant beyond shadow of doubt and as such he is entitled at least to benefit of doubt…………….(22)
Criminal Appeal No. 10 of 2004 (From the Judgment and order dated 09.04.2003 passed by the High Court Division in Criminal Appeal No. 473 of 2002)
A.F.M. Mesbahuddin, Senior Advocate, instructed by A. K. M. Shahidul Huq, Advocate-on-Record.
Not Represent………………. Respondent
JUDGMENT
1. Amirul Kabir Chowdhury J.– This appeal arises on leave at the instance of the convict appellant Md. Wasim Mia against judgment and order dated 09 April 2003 passed by a Division Bench of the High Court Division in Criminal Appeal No. 473 of 2002 dismissing the appeal so far as it relates to the appellant.
2. The facts leading to the leave petition, in short, are that one Champa Khatoon (15),
dumb daughter of Khodeja Khatoon on 12.7.2000 went to a pond near her house at about 3.00 P.M. but did not return till 12.00 at night and at that time her mother Khodeja
Khatoon found some persons assembled at the Union Parishad road situated to the north of the house of the appellant Md. Wasim Mia and while Khodeja Khatoon (P.W.I), mother of the aforesaid Champa Khatoon went there the appellant Md. Wasim Mia and co-accused Md. Wafiz Mia (since acquitted) fled away there from and then aforesaid Khodeja Khatoon found her daughter in naked position, her hands and legs being tied up and she was then taken to her house and on the following morning a darbar took place attended by villagers where the victim Champa Khatoon identified the appellant Md. Wasim Mia and disclosed by gestures and postures that she had been raped by Md. Wasim Mia and another and then she was taken to Netrokona Hospital and on the basis of a complaint filed by Khodeja Khatoon, her mother, Netrokona P.S. Case No. 11(8)2000 was started and after investigation police submitted charge sheet against the appellant Md. Wasim Mia and Md. Wafiz Mia (since acquitted) under Sections 7/9(1 )/30 of the Nari-O-Shishu Nirjaton Daman Ain 2000, in short, the Act. The case thereafter being sent for trial, the trial court framed charge against the accused under Section 9(1) read with Section 30 of the Act and after recording evidence convicted both the accused under Section 9(1) of the Act and sentenced each of them to suffer imprisonment for life and to pay fine of Tk. 10,000/each, in default, to suffer rigorous imprisonment for two years more.
3. Both the accused preferred Criminal Appeal No.473 of 2002 before the High Court Division. By the impugned judgment and order the appeal has been allowed in part
acquitting the co-accused Md. Wafiz Mia while dismissing the appeal so far as it relates
to the appellant. Hence is the appeal.
4. Leave was granted to consider the submission that the High Court Division committed
error in the decision ignoring the fact that out of 15 witnesses, none, including the informant and the victim herself or even the Medical officer who examined the Victim, supported the prosecution case and P.W. 15 being the investigating officer is formal witness who, therefore, proved nothing against the accused and that the High Court Division committed error in not considering that in the statement made before the court, the Victim or her mother deposed nothing against the appellant and the statement, if any, made before the police or even before a Magistrate cannot legally be relied on the pass an order of conviction inasmuch as no witness deposed to that effect in the court and that P.W. 4 the medical officer in his evidence clearly stated that in his opinion there was no sign of physical assault or forceful sexual intercourse. But the High Court Division relying upon the words “Hymen Ruptured” ignoring the testimony of the Medical Officer “(P.W. 14) passed the impugned judgment without considering the fact that on attaining puberty “Hymen” may become ruptured and there being no sign of rape no offence has been disclosed as contemplated under Section 9(1) of the Ain.
5. Mr. A.F.M. Mesbahuddin, learned Counsel Appearing on behalf of the appellant has
taken us through the materials on record including the evidence of witnesses and reiterating the submissions made by him earlier contends that out of 15 witnesses not a single witness deposed incriminating the appellant and that the trial court committed serious illegality in convicting the appellant.
6. He further submits that the High Court Division in its turn misdirected in not considering that this is a case of no evidence against the appellant and thus committed error in dismissing the appeal.
7. We have considered the submission made by the learned Counsel and perused the materials on record. Prosecution produced 15 witnesses in this case.
8. P.W.I Khodeja Khatoon mother of victim Champa Khatoon in examination in chief stated, inter-alia, “Bangla” In cross-examination she disowned the First Information Report lodged by herself and stated that she was not aware of the contents of the FIR.
9. P.W.2 Md. Younus Mia brother of the Victim Champa Khatoon stated in cross-
examination (Bangla)
10. P.W.3 Khaleda Akhter, P.W.4 Ali Amjad are sister and brother respectively of the
Victim. P.W.3 in cross-examination stated (Bnagla)
11. P.W.4 Ali Amjad in his turn stated in cross-examination “(Bnagla)
12. P.W.5 Md. Dojahan maternal uncle of the victim, P.W.6 Abu Taher, P.W.7 Most. Jahura Khatun in their evidence did not utter a single word regarding the alleged occurrence or against the appellant.
13. P.W.8 Md. Ali Hamza brother of victim Chumpa Khatoon is a seizure list witness who did not depose anything regarding the occurrence.
14. P.W.9 Dr. Sankar Narayan Dey examined the Victim and considered the radiological
reports and opined the victim Champa Khatoon to be 15 to 16 years old.
15. P.W. 10 Champa Khatoon, the victim herself was also examined. The learned Tribunal recorded “(Bnagla)
16. P.W. 11 Khokon Mia was declared hostile and did not state anything against the appellant.
17. P.W. 12 Md. Sayduzzaman registered the case in the police station.
18. P.W.I3 Mr. Yousuf Ali Magistrate deposed that he recorded the statement of the
victim champa Khatoon under Section 164 of the Code of Criminal Procedure.
19. In cross-examination he stated (Bnagla)
20. P.W.14 Dr. A.K.M. Rafiqul Islam Khan Resident Medical Officer Sadar Hospital
Netrokona examined the victim Champa Khatoon and opined that there was no sign of
physical assault and no sing of forceful sexual intercourse at the time of examination.
21. P.W. 15 Md. Giasuddin after completion of the investigation submitted charge sheet
against the appellant and another under Sections 9(l)/7/30 of Nari-O-Shishu Nirjaton
Ain 2000.
22. On perusal of the evidence and other materials on record we are of the view that
prosecution could not prove the charge against the appellant beyond shadow of doubt
and as such he is entitled at least to benefit of doubt.
23. In this of the matter we find that the High Court Division committed error in dismissing the appeal so far as it relates to the appellant Md. Wasim Mia. The impugend judgment passed by the High Court Division is therefore liable to be set aside.
24. In view of the discussion made above, we fined substance in this appeal, The appeal is allowed. The impugend judgment of the High Court Division is set aside. The convict appellant Md. Wasim Mia, son of Md. Islamuddin, Village-Jamati, Post Office-Chuchuxa Bazar is acquitted of the charge under Section 9(1) of Nari-O-Shishu Nirjaton Ain 2000 and he be set at liberty at once if not wanted in any other connection.
Ed.
Source: IV ADC (2007), 82