Appellate Division Cases
(Criminal)
PARTIES
The State …………………………………………… Petitioner
-vs-
Md. Shahidul Islam @ H. M. Shahid……………….Respondent
JUSTICE
Syed J. R. Mudassir Husain C J
Md. Fazlul Karim J
Amirul Kabir Chowdhury J
Date of Judgment 23rd November 2005
Nari-O-Shishu Nirjatan Damon Ain. 2000 (in short Ain) Sections 7 and 9(1).
Appeal against the judgment and order dated 03.08.2003 passed by the High Court Division in Jail Appeal No. 368 of 2003 allowing the appeal, setting aside the order of conviction and sentence awarded upon the accused respondent under Sections 7 and 9(1) of Nari-O Shishu Nirjatan Damon Ain, 2000 (in short Ain) by the learned Judge Nari-O-Shishu Nirjatan Damon …(1)
“The evidence as adduced by both the prosecution and the defence is enough to shov, that the victim girl P.W. 2 willingly went with the accused appellant as a consenting party and that is why there was no hue and cry, no resistance put up by the victim girl and the prosecution lodged the FIR after an unreasonable delay of one week when it was known to the informant P.W. 1 that his daughter Bithi (P.W.2) was Criminal Petition For Leave to Appeal No. 207″of2003 abducted by the accused appellant. The offence of abduction under Section 7 charged against the accused appellant, in our view, has fallen through, similarly, the offence of rape charged against the accused appellant under Section 9(1), in our view, has also failed for the reasons that fhe victim girl Bithi (P.W.2) was 15 years of age at the material time and there was no sign or marks of violence on the private part or on any other part of her body as was found on physical examination by P.W. 5 Dr. A. K. M. Shamsul Haque. In this back-ground of the case, we find that the learned Judge of the Nari-O-Shishu Niarjatan Damon Bishes Adalat-2 has committed illegality in passing the impugned judgment and order of conviction an sentences which is liable to be set aside.”….(9)
ADVOCATES
Abdur Razzaque Khan, Additional Attorney General, instructed by Md. Sajjadul Huq, Advocate-on -Record For the Petitioner .Not Represented Respondent
JUDGMENT
1. Amirul Kabir Chowdhury J: – At the instance of the State this petition arises seeking leave to appeal against the judgment and order dated 03.08.2003 passed by the High Court Division in Jail Appeal No. 368 of 2003 allowing the appeal, setting aside the order of conviction and sentence awarded upon the accused respondent under Sections 7 and 9(1) of Nari-O Shishu Nirjatan Damon Ain, 2000 (in short Ain) by the learned Judge Nari-O-Shishu Nirjatan Damon Bishes Adalat-2, Dhaka on 15-05-2002 convicting him under Section 7 of the Ain and sentencing him to imprisonment for life and to pay fine of TK. 5.000/- in default, to suffer rigorous imprisonment for 6 (six) months and also under
Section 9 (1) of the Said Ain sentencing him to imprisonment for life and to pay fine of TK. 10,000/-, in default, to suffer rigorous imprisonment for l(one) year more, both the sentences to run concurrently.
2. Prosecution case, in brief, is that coaccused Md. Shahidui Islam alias H. M. Shahid abducted Asmaul Hosna alias Bithi (P. W. 2) on 06.03.2000 at about 6.30 P. M. by calling her from her flat through her friend P. W. 4 Sabeha Yesmin Moli and she was thereafter forced to put her signature on some papers and was taken to the house of the sister of accused respondent Md. Shahidui Islam wherefrom she was shifted to Jessore and was confined in a hotel and thereafter was kept in a rented house till 21.05.2000 when the accused respondent brought her back to Dhaka and the accused respondent and the aforesaid victim girl were arrested by the police. It was further alleged that the P.W. 2
the victim girl was raped by the accused respondent during her stay with him in Dhaka as well as in Jessore. Md. Salahuddin (P.W.I) father of the victim lodged First Information Report on the basis of which Uttara P. S. Case No. 32 dated 13.03.2000 was started against the accused respondent and after investigation charge sheet was submitted. The case being sent for trial, the learned Judge, Nari-O-Shishu Nirjatan Damon Bishes Adalat-2, Dhaka convicted and sentenced the accused respondent as already mentioned above.
3. The accused respondent preferred Jail Appeal No. 368 of 2003 and a Division Benchof the High Court Division after hearing allowed the appeal by the impugned judgment and order and set aside the judgment and order of conviction and sentence. Hence is this petition.
4. In support of the petition Mr. Abdur Razzaque Khan, learned Additional Attorney General submits, inter alia, that the High Court Division committed error in acquitting the accused respondent of the charge levelled against him disregarding cogent evidence on the basis of which the trial Court passed the order of conviction.
5. He further submits that the victim herself as P. W. 2 narrated the occurrence and thus corroborated her father P.W. 1 and her mother P.W. 3 Nasima Akter and that their evidence was also corroborated by P.W.4 Sabina Yesmin Molly.
6. Lastly, he submits that sufficient explanation being offered for delay in lodging First Information Report the High Court Division committed illegality in passing the impugned judgment of acquittal observing that there was delay in lodging the First Information Report.
7. We have considered the submissions made by the learned Additional Attorney General
and perused materials on record including the impugned judgment and order. It appears that from the evidence that the alleged occurrence took place on 06.03.2000 and the First
Information Report was lodged on 13.03.2000. There was no acceptable explanation for the delay.
8. It transpires that the victim girl during her long stay with the accused respondent did not raise any protest nor complained to any body even when she was shifted from one place to another place in bus and other transport and was kept in hotel.
9. It further appears that love letters comprising 51’pages were shown to her during her cross-examination in court which were admitted to have been written by her and 4 photographs showing victim girl and the accused respondent in a very intimate position were also shown to the victim girl in her cross-examination which she did not deny. The
High Court Division after considering the facts and circumstances and materials on record observed: “The evidence as adduced by both the prosecution and the defence is enough to show that the victim girl P.W. 2 willingly went with the accused appellant as a consenting party and that is why there was no hue and cry, no resistance put up by the victim girl and the prosecution lodged the FIR after an unreasonable delay of one week when it was nown to the informant P.W. 1 that his daughter Bithi (P.W.2) was abducted by the accused appellant. The offence of abduction under Section 7 charged against the accused appellant, in our view, has fallen through, similarly, the offence of rape charged against the accused appellant under Section 9(1), in our view, has also failed for the reasons that the victim girl Bithi (P.W.2) was 15 years of age at the material time and there was no sign or marks of violence on the private part or on any other part of her body as was found on physical examination by P.W. 5 Dr. A. K. M. Shamsul Haque. In this back-ground of the case, we find that the learned Judge of the Nari-O-Shishu Niarjatan Damon Bishes Adalat-2 has committed illegality in passing the impugned Appellate Division Cases judgment and order of conviction which is liable to be set aside.” The petition having no substance is, therefore, dismissed.
Source: III ADC (2006) 834