Case No: Criminal Appeal No. 3235 of 2004
Judge: Syed Md. Ziaul Karim,
Court: High Court Division,,
Advocate: Mr. M.A. Mannan Mahon,Mr. Md. Ensan Uddin Sheikh,Mr. Md. Osman Goni,,
Citation: 2 LNJ (2013) 312
Case Year: 2013
Appellant: Md. Samidul and others
Respondent: The State
Delivery Date: 2013-05-16
(CRIMINAL APPELLATE JURISDICTION)
|Syed Md. Ziaul Karim, J.
Ashish Ranjan Das, J.
Md. Samidul and others
. . . Accused-Appellant.
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Sections 11(Ga) and 11(Ga)/30
The allegation as made out in the petition of complaint that the accused persons conjointly demanded dowry to the victim but it is not understood that for the cause of such demanding of dowry the accused persons caused any hurt to her. There is also vague and unspecific allegation of torture. The allegation of torture does not mean causing hurt. Such vague and unspecific allegations of torture as made in the FIR/Complaint does not attract an offence under sections 11(Ga), 11(Ga)/30 of the Ain of 2000. The learned judge erroneously framed charge against the appellants cannot be sustained. . . . (10 and 12)
Mr. M. A Mannan Mahon, D.AG. with
Mr. Md. Ensan Uddin Sheikh, AAG. and
Mr. Md. Osman Goni, AAG.
Criminal Appeal No. 3235 of 2004
By this appeal, the accused-appellants have challenged the legality and propriety of the order dated 12-06-2004 passed by learned Judge-in-charge, Nari-O-Shishu Nirjatan Daman Tribunal, Sherpur, (briefly as Tribunal) in Nari-O-Shishu Nirjatan Daman Tribunal Case No. 181 of 2003 framing charge against the appellants under Sections 1l(M), 1l(M)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (briefly as Ain 2000).
Facts in brief are that on 10-05-2003 one Md. Mafizul Haque as complainant filed a petition of complaint in the Court of Magistr-ate, first Class, Sherpur alleging that on 02-03-2001 his daughter Nurjahan was married with accused No. 1 Md. Samidul. During their wed-lock one female child born. Since marriage all the accused conjointly used to torture her for the cause of dowry. Later, the accused drove her with child for bringing Tk. 40,000/- as dowry. Then the complainant again kept her in her conjugal house. Subsequently it was informed that one day after occurrence victim Nurjahan was missing and her whereabout was not known to the accused. The complaint was referred to local P.S. wherein it was recorded as Nalitabari Police Station Case No. 05 dated 10-05-2003 corresponding to G.R. No. 355 of 2003.
The Police after investigation on 22-07-2003 submitted final report in favour of all the accused and recommended to prosecute the complainant under Section 17 of the Ain, 2000 for bringing false allegations.
The learned Magistrate, ultimately referred the case record to the Tribunal, wherein the learned Judge by the order dated 11-04-2004 took cognizance of the offence under Section 11(Ga)/30 of the Ain, 2000 against the accused Samidul, Lichu Khatun and Mala Khatun and accepted the Police report in respect of the rest accused however, recomm-endation to prosecute under Section 17 of the Ain was refused.
Eventually, the learned Judge framed charge against the aforesaid three accused under Sections 11(Ga), 11(Ga)/30 of the Ain, 2000 by the impugned order.
Feeling aggrieved the appellants preferred the instant appeal.
No one appears to support the appeal. In view of the facts this is an old appeal of 2004. We are inclined to take it up for disposal on merit considering the materials on record.
The learned Deputy Attorney General appearing for the respondent opposes the appeal and submits that the learned Judge of the Court below after considering the materials on record rightly framed charge which calls for no interference by this Court.
In order to appreciate his submission we have gone through the record and given our anxious consideration to his submissions.
On going to the materials on record it transpires that the informant in his complaint made allegations that the accused persons conjointly demanded dowry to his daughter Nurjahan. On meticulous examination of the complaint we failed to discover that for the cause of such demanding of dowry the accused persons caused any hurt to her.
For the convenience of understanding the provisions of Section 11(Ga) of the Ain, 2000 reads as hereunder:
১১। যৌতুকের জন্য মৃত্যু ঘটানোর, ইত্যাদির শাস্তি।- যদি কোন নারীর স্বামী অথবা স্বামীর পিতা, মাতা, অভিভাবক, আত্মীয় বা স্বামীর পক্ষে অন্য কোন ব্যক্তি যৌতুকের জন্য উক্ত নারীর মৃত্যু ঘটান বা মৃত্যু ঘটানোর চেষ্টা করেন, কিংবা উক্ত নারীকে মারাত্মক জখম (grievous hurt) করেন বা সাধারণ জখম (simple hurt) করেন। তাহা হইলে উক্ত স্বামী, স্বামীর পিতা, মাতা, অভিভাবক, আত্মীয় বা ব্যাক্তি-
গ) সাধারণ জখম (simple hurt) করার জন্য অনধিক তিন বৎসর কিন্তু অন্যুন এক বৎসর সশ্রম কারাদন্ডে দন্ডনীয় হইবেন এবং উক্ত দন্ডের অতিরিক্ত অর্থ দন্ডেও দন্ডনীয় হইবেন।
Moreso, we find that there is vague and unspecific allegation of torture, mental or physical torture and causing hurt- or injury are not the same act. The allegation of torture does not mean causing hurt. Thus the vague and unspecific allegation of torture made in the first information report/complaint does not attract an offence under Sections 11(M), 11(M)/30 of the Ain 2000. Therefore, we hold that the learned Judge of the Court below “without considering the materials on record erroneously framed charge against the appellants which cannot be sustained in the eye of law. Thus the appeal having merit succeeds.
In view of foregoing narrative, the appeal is allowed.
The appellants are discharged from the charge leveled against them.
The office is directed to communicate the order at once.