Horon @ Mohin Uddin Vs. The State, 2018(1) LNJ 388

Case No: Criminal Appeal No. 1183 of 2013

Judge: Mohammad Ullah, J.

Court: High Court Division,

Advocate: Mr. Abul kalam Chowdhury, Advocate, Mr. Anwara Shahjahan, DAG,,

Citation: 2018(1) LNJ 388

Case Year: 2018

Appellant: Horon alias Mohin Uddin alias Main Uddin

Respondent: The State,

Subject: Nari-O-Shishu Nirjatan Daman Ain, (VIII of 2000), Evidence Act (I of 1872)

Delivery Date: 2018-07-04

43.        In view of the discussions herein above and legal proposition has been cited herein above we are of the view that the application under order 7 Rule 11 of the Code cannot be invoked as discussed herein above. However, we are inclined to exercise the Court’s inherent power under section 151 of the Code of Civil Procedure. Because in the impugned order it has been admitted that the application was filed for less deposit and further prayed for in the prayer Ka of the case for partial pre-emption. We are of the considered view that it is a fit case to invoke the jurisdiction of section 151 and exercise the inherent power of the Court to   resist abuse of process of the Court for ends of justice.

44.        Thus, the Rule having merit, in exceptional circumstances it’s succeed.

45.        In the result, the Rule is made absolute.

46.        The impugned order dated 11.02.2016 passed by the learned Joint District Judge, Satkania, Chittagong in Pre-emption Miscellaneous Case No. 04 of 2013 is hereby set aside.

47.        It is further declared that proceedings of pre-emption Miscellaneous Case No. 4 of 2013 now pending in the Court of Joint District Judge, Shatkania, Chittagong on an application under section 96 of the State Acquisition and Tenancy Act, 1950 at the instance of the pre-emptor is not maintainable hence, the application for pre-emption is rejected.

48.        The office is directed to communicate this Judgment and Order at once.

         Ed. 

 

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

A. N. M. Bashir Ullah, J

And

Mohammad Ullah, J.

Judgment on

12.02.2018

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Horon alias Mohin Uddin alias Main Uddin

 

... Appellant

Versus

The State,

. . .Respondent

Nari-O-Shishu Nirjatan Daman Ain, (VIII of 2000)

Sections 9(1) and 22

Evidence Act (I of 1872)

Sections 8 and 45

The statements of the victim made before the Magistrate under section 22 of the Ain, 2000 cannot be a substantive evidence unless the maker of the statements prove it in Court or Tribunal on oath. The prosecution did not take any steps to proof the blood allegedly found in the salwar of the victim causing rape on her. The doctor P.W. 8 gave opinion to the effect that no forceful sign of rape was found during medical examination of the victim, although he found the hymen ruptured but the prosecution failed to prove the allegation of rape on the victim by the appellant. Moreover, there may be many reason for rupturing of hymen of a 12 years old girl in our society like the victim. When the victim herself did not disclose anything about the alleged rape on her, the Tribunal cannot draw inference that the appellant committed rape on the victim. We find that save and except the statements of the victim Ayesha Khatun made before the Magistrate under section 22 of the Ain, 2000 there is no other corroborative evidence against the appellant. It is now well-settled that the prosecution is not generally required to prove any motive behind  a crime but if some motive is assigned in that case of course the prosecution needs to prove it. In the FIR the prosecution has assigned the motive of rape of the victim at the instance of the appellant but we do not find that such motive has been proved by the prosecution to attribute any intention to rape by the appellant. When there is no eye-witness and even the circumstances does not justify drawing an inference of the guilt of the convict appellant and the prosecution witnesses did not corroborate in such a situation conviction should not be allowed to sustain for want of material corroboration. There are many contradictions in the evidence of the prosecution witnesses in between the statement made in the FIR as well as in the statement of the victim and in the evidence as adduced in Tribunal and that absence of sign of rape in the medical report and non-examination of the wearing cloth and mat made the whole case most doubtful one and the prosecution has totally failed to prove their case beyond all reasonable doubt and the appellant is not found guilty of the charge brought against him under section 9(1) of the Ain, 2000. Though the trial Court discussed, analyzed and assessed the prosecution evidence but came to a wrong conclusion that the appellant committed rape at the time of occurrence. From the foregoing discussions and regard being had to the facts and circumstances of the case, we find merit in the appeal. The appeal, therefore, succeeds. . . . (40 to 42 and 45)

Mr. Abul kalam Chowdhury, Advocate

. . . For the appellant

Mr. Anwara Shahjahan, DAG, with

Mr. Kazi Bashir Ahmed, AAG

. . . For the State-respondent

JUDGMENT

Mohammad Ullah, J: This criminal appeal, at the instance of the convict-appellant, Horon alias Mohin Uddin alias Main Uddin is directed against the judgment and order dated 20.01.2013 passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Luxmipur (in short, the Tribunal) in Nari-O-Shishu Nirjatan Daman Case No. 50 of 2007. By the impugned judgment and order, the learned Judge convicted the appellant under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 ( in short, the Ain, 2000) and sentenced him  thereunder to suffer rigorous imprisonment for life with a fine of Taka 20,000/- in default to suffer rigorous imprisonment for a further period of 1(one) year.

2.            The prosecution case, in short, is as follows:

3.            The informant Syed Ahmed on 08.05.2007 lodged First Information Report (shortly FIR) about rape of his daughter Ayesha Khatun aged about 12(twelve) years. He alleged that he had a betel leaf shop at Jaher Market of the locality. On the date of occurrence on 30.04.2007, he was sick and therefore sent her daughter Ayesha Khatun to run the shop. On that night at about 10:30 P.M the appellant dropping his daughter to their house fled away. At that time the victim was crying and disclosed that the appellant took her to a lady’s finger field (dharos khet) and raped on her forcefully when she was returning her home along with the appellant. Due to such rape committed on her by the appellant, there causing bleeding and the victim became sick. Then the father of the victim had informed about the incident to other accused persons including father of the convict-appellant, who rushed to the house of the informant and took the victim with them for providing treatment. Thereafter the informant informed the occurrence to the local people and sought for justice. Meanwhile the accused persons took his daughter to an unknown place on the plea of treatment to her. However, the informant subsequently brought the matter into the notice of a local doctor Md. Iqbal Hasan who suggested to admit the victim into the Luxmipur Sadar Hospital. Due to financial hardship, he could not do so but informed about the incident to the local member and chairman who asked to lodge complain to the Police Station and hence the case.

4.            On the basis of the above FIR Ramgati P.S Case No. 05 dated 08.05.2007 corresponding to G.R. Case No. 424 of 2007 were stated and the case was endorsed to Police Sub-Inspector Abdul Haque for investigation

5.            After investigation Investigating Officer submitted Police Report No. 88 dated 12.07.2007 recommending the trial of the appellant and 3(three) co-accused under sections 9(1) and 30 of the Ain, 2000. On receipt of the police report, the learned Magistrate sent the case records to the Tribunal where it was registered as Nari-O-Shishu Nirjatan Daman Case No. 50 of 2007.

6.            On 05.10.2008 charge under sections 9(1) and 30 of the Ain, 2000 was framed against all the accused.  The charge was read over and explained to the accused to which the appellant pleaded his not guilty and claimed to be trial.

7.            The prosecution examined 10(ten) witnesses out of 23 (twenty three) witnesses named in the police report. Of whom the P.W. 1 was declared hostile by the prosecution and he was not cross-examined by the defence and the P.W. 2 was tendered and the defence did not cross-examine him (P.W. 2).

8.            After closure of the evidence of the prosecution, the accused were examined under section 342 of the Code of Criminal Procedure, 1898 to which they further pleaded their innocence and stated that they did not intend to produce counter evidence.

9.            The defence case as it appears from the trend of cross-examination of the prosecution witnesses is the case innocence and false implication. The further defence taken is that the appellant did not commit rape on the victim as alleged by the prosecution.

10.        The Tribunal on consideration of the evidence and other materials on record found the appellant guilty under section 9(1) of the Ain, 2000 and sentenced him as stated hereinbefore.

11.        Against the said judgment and order of conviction and sentence, the appellant preferred this Criminal Appeal before this Court and he is in jail from the date of his surrender on 12.08.2012.

12.        At the very outset of the hearing, Mr. Abul Kalam Chowdhury, learned Advocate appearing for the appellant, submits that the delay of 8(eight) days in lodging the FIR has not been properly explained by the prosecution and it creates serious doubt about the prosecution story since there was no reasonable explanation of such delay.

13.        The learned Advocate next submits that without assigning any explanation the prosecution failed to produce all the 23(twenty three) cited witnesses named in the Police Report to prove the charge against the appellant beyond all reasonable doubt.

14.        He further submits that medical report does not support the prosecution story of rape.

15.        He again submits that the seizure-list witness P.W. 2 could not prove the seizure-list and the other seizure-list witnesses did not come to the Tribunal to prove the prosecution story.

16.        He next submits that no chemical examination was done with regard to the seized wearing salwar, orna and mat.

17.        The learned Advocate further submits that the conviction cannot be well founded basing on the statement of the victim recorded under section 22 of the Ain, 2000 without supporting by other evidence of ocular witnesses.

18.        The learned Advocate next submits that the prosecution witnesses have made self-contradictory statements and the prosecution failed to examine any independent and disinterested witnesses to prove the charge and the charge has not been proved by the evidence of PWs 1-10 and the Tribunal passed the impugned judgment and order of conviction and sentence on misreading and misappreciation of the evidence on record and therefore the conviction cannot be sustained.

19.        The learned Advocate to substantiate his submissions has referred to the decisions in the cases of

(1)         Seraj Talukder Vs. The State reported in 3BLC (HCD) 182 and

(2)         Muhammad Abdul Khaleque & others Vs. The State reported in 12 DLR (SC) 165.

20.        On the other hand, Mrs. Anwara Shahjahan, learned Deputy Attorney General appearing for the State, submits that the prosecution has produced sufficient and credible evidence and proved the charge beyond reasonable doubt and therefore the appeal should be dismissed.

21.        The learned Deputy Attorney General next submits that the victim was a minor girl at the time of occurrence and she (victim) was raped by the appellant and the prosecution could prove the charge against the appellant.

22.        For coming to proper decision about sustainability of the impugned judgment and order of conviction and sentence we firstly need to examine and assess the evidence on record keeping in view of the charge framed. Accordingly the evidence on record is briefly presented below. 

23.        P.W. 1 Hafez Ahmed aged about 40 years stated that he is a farmer. The informant, victim Aysha and the accused persons were known to him. He further stated that he did not know about the incident. At this stage, this witness was declared hostile by the prosecution and in the cross-examination of the prosecution, he denied the prosecution suggestion that he deposed falsely to save the accused. He was not cross-examined by the defence.

24.        P.W. 2 Md. Selim was tendered by the prosecution and the defence declined to cross-examine him.

25.        P.W. 3 Syed Ahmed, the informant of the case, stated that the appellant had bought some goods from his daughter victim Ayesha Khatun without giving price of the same and an altercation took place between them on the said issue and at one stage, the appellant assaulted his daughter. He unsuccessfully sought social justice thereafter filed the FIR. He proved the FIR lodged by him, marked as Exhibit-1 and his signature therein as Exhibit-1/1. He further stated that after lodging of the FIR Police took her daughter to a Magistrate who made a statement about the incident. Later on the victim was admitted to the local hospital.

26.        In cross-examination of the defence he stated that he is an illiterate man, he could not know what was written in the FIR and who wrote it, even he could not know about the allegation but he put his thump impression on the FIR form. He further stated that the appellant took a betel leaf from his shop and at one stage of altercation ensued between them, the appellant beat his daughter victim Ayesha Khatun and due to that incident he lodged the FIR against the appellant and others.

27.        P.W. 4 Ayesha Khatun is the victim of the incident who stated that due to her father’s sickness she went to the shop. The appellant came to their shop and took some goods without giving any price of the same, moreover, the appellant beat her and subsequently dropped her to their house.  She further deposed that the incident had taken place in their shop, her father informed the occurrence to the father of the appellant who took her with them on the plea of providing treatment, subsequently she returned back to her father’s house and thereafter her father lodged the FIR and Police brought her to the Court and she made a statement to the Magistrate. She proved her statements, marked as Exhibit-2 and her signature therein as Exhibit-2/1. She also identified the seized salwar, orna and mat and those were marked as material Exhibit No. I, II and III. She further stated that Police sent her to a doctor for physical examination.

28.        In cross-examination of the defence P.W. 4 stated that the accused persons are their neighbours and they used to go to her father’s shop. She further stated that the appellant beat her and she made a statement in front of the Magistrate and she signed the statements but she did not read over the same. She denied the defence suggestion that she was not assaulted by the appellant.

29.        P.W. 5 Moktara Begum stated that the informant and the accused persons are the members of the same locality. The informant told her that the appellant had assaulted the victim in the field.

30.        The defence declined to cross-examine her.

31.        P.W.6 Afiza Begum stated that the victim is her younger sister who went to their shop on the date of occurrence since her father was not able to go to the shop, the accused Horon bought a betel leaf from their shop without giving price of the same and there was an altercation between them and the accused appellant beat her sister, her father lodged the FIR.

32.        In cross-examination of the defence P.W. 6 stated that she did not witness the occurrence.

33.        P.W. 7 Abdul Ali deposed alike the statement made by the P.W. 6 and the defence declined to cross-examine this witness.

34.        P.W.8 Dr. Md. Salauddin Sharif stated that at the relevant time on 09.05.2007 he was posted at Luxmipur Sadar Hospital, pursuant to Luxmipur Police Station Case No. 05 dated 08.05.2007 he physically examined one Ayesha Khatun aged about 12 years through a medical board and they could know that the victim was raped before 10(ten) days of the occurrence.  This P.W.8 further stated that they did not find any sign of violence on the body of the victim Ayesha Khatun but her hymen was found ruptured. The medical board opined that no sign of forceful sexual intercourse was found on her. This P.W.8 proved the medical report, marked as Exhibit-3 and his signature therein as Exhibit-3/1. The defence did not cross-examine this P.W.8 as they were fugitive at the time of examination of this witness.

35.        P.W. 9 Md. Abul Hossain is a 1st Class Magistrate who stated that at the relevant time he was posted at Luxmipur and he recorded the statement of the victim Ayesha Khatun at 3.00 P.M. on 09.05.2007. This P.W. 9 further stated that the statement was read over to the victim who signed it. This P.W. 9 proved the statement of the victim, marked as Exhibit-2/2 and his signature therein as Exhibits-2/3 and 2/4 respectively.

36.        In cross-examination of defence the P.W. 9 denied the defence suggestion that he recorded the statements going through the script supplied by the Investigating Officer. He denied the further defence suggestion that the victim did not give statements to him.

37.        P.W. 10 Police Sub-Inspector Abdul Haque, the Investigating Officer of the case stated that on 08.05.2007 he was posted at Ramgati Police Station. The Officer-in-Charge recorded the present case filling up the FIR columns and he was entrusted to investigate into the case. He proved the FIR, marked as Exhibit-4. He further stated that during his investigation he visited the place of occurrence, prepared the sketch-map with explanation and an index thereof, sent the victim Aysha to the Magistrate for recording her statements under section 22 of the Ain, 2000. He proved the sketch-map, index thereof and explanation of the index, marked as Exhibits-5,6 and 7 and his signature therein as Exhibits- 5/1, 6/1 and 7/1. He further stated that he seized the wearing apparels of the victim and a mat from the house of the informant and made a seizure list and proved the same marked as Exhibit-8 and his signature therein as Exhibit-8/1. He further stated that he had taken step for medical examination of the victim by the doctor and collected the medical report which was kept in the record. This P.W.10 also stated that he produced the victim before a Magistrate 1st Class and the victim made a statement with regard to the incident under section 22 of the Ain, 2000 and he on completion of the investigation submitted report against all the accused persons recommending their trial under sections 9(1) and 30 of the Ain, 2000.

38.        In cross-examination of the defence the P.W. 10 stated that he did not send the wearing apparels of the victim and the mat for chemical examination.

39.        We have considered the above submissions of the learned Advocate Mr. Abul Kalam Chowdhury and the counter-submissions of the learned Deputy Attorney General Mrs. Anwara Shahjahan and perused the statement of the victim recorded under section 22 of the Ain, 2000, medical examination report, charge frame against the appellant, examination of the accused under section 342 of the Code of Criminal Procedure, and the deposition of the prosecution witnesses.

40.        It appears that all are the hearsay witnesses in the instant case and the conviction is solely based on the basis of the statements of the victim P.W. 4 made under section 22 of the Ain, 2000. The victim Ayesha Khatun in her statements before the Magistrate stated that the appellant committed rape on her on 30.04.2007 at night taking her to a lady’s finger field when she was coming back to her residence along with the appellant from their betel leaf shop located at toomchar, Jaher market. But in her deposition to the Tribunal she disclosed different story and stated that the appellant came to her shop at about 8.00 P.M. on the date of occurrence and took some goods without giving the price of the same when she was beaten by the appellant. The statements of the victim made before the Magistrate under section 22 of the Ain, 2000 cannot be a substantive evidence unless the maker of the statements prove it in Court or Tribunal on oath.

41.        The prosecution did not take any steps to proof the blood allegedly found in the salwar of the victim causing rape on her. The doctor P.W. 8 gave opinion to the effect that no forceful sign of rape was found during medical examination of the victim, although he found the hymen ruptured but the prosecution failed to prove the allegation of rape on the victim by the appellant. Moreover, there may be many reason for rupturing of hymen of a 12 years old girl in our society like the victim. When the victim herself did not disclose anything about the alleged rape on her, the Tribunal cannot draw inference that the appellant committed rape on the victim.

42.        The delay of 8 days in lodging the FIR also creates serious doubt on the prosecution story. The prosecution has failed to prove the time, place and manner of the occurrence as brought by it against the appellant. In the sketch-map Investigating Officer failed to find out the place of occurrence allegedly happened in lady’s finger field in the locality. We find that save and except the statements of the victim Ayesha Khatun made before the Magistrate under section 22 of the Ain, 2000 there is no other corroborative evidence against the appellant. It is now well-settled that the prosecution is not generally required to prove any motive behind  a crime but if some motive is assigned in that case of course the prosecution needs to prove it. In the FIR the prosecution has assigned the motive of rape of the victim at the instance of the appellant but we do not find that such motive has been proved by the prosecution to attribute any intention to rape by the appellant. When there is no eye-witness and even the circumstances does not justify drawing an inference of the guilt of the convict appellant and the prosecution witnesses did not corroborate each other in such situation conviction should not be allowed to sustain for want of material corroboration. There are many contradictions in the evidence of the prosecution witnesses in between the statement made in the FIR as well as in the statement of the victim and in the evidence as adduced in Tribunal and that absence of sign of rape in the medical report and non-examination of the wearing cloth and mat made the whole case most doubtful one and the prosecution has totally failed to prove their case beyond all reasonable doubt and the appellant is not found guilty of the charge brought against him under section 9(1) of the Ain, 2000. Though the trial Court discussed, analyzed and assessed the prosecution evidence but came to a wrong conclusion that the appellant committed rape at the time of occurrence. 



Criminal Appeal No. 1183 of 2013