Case No: Criminal Appeal No. 2158 of 2011
Judge: Md. Abu Zafor Siddique,
Court: High Court Division,,
Citation: 3 LNJ (2014) 766
Case Year: 2014
Appellant: Mehedi Hasan alias Rasel
Respondent: The State
Subject: Expert Opinion, Law of Evidence,
Delivery Date: 2012-01-19
(Criminal Appellate Jurisdiction)
Md. Rezaul Haque, J
Md. Abu Zafor Siddique, J.
|Mehedi Hasan alias Rasel
. . . Respondent.
Evidence Act (I of 1872)
The opinion of the doctor as to the age of the victim is not authenticated one. In our view the way the victim should be examined has not been done. There is no opinion as to the teeth, because as per Modi’s Medical Juris-prudence to ascertain the age of any person teeth is an important factor. ‘Modi’ has also observed ‘the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depend upon in estimating age in medico legal cases.’ ... (27)
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
There is nothing as to abduction in the instant case rather it is a case of elopement and the way the opinion of the doctor as to ascertaining age has been given, in our view, is not a proper one so, we do not find any reason to convict the appellant under the provision of Nari-0-Shishu Nirjatan Daman Ain, 2003, thus, we find merit in the instant appeal. . . .(28)
. . . For the accused-appellant.
Mr. Zahurul Haque, D.A.G with
Mr. Md. Abdul Khaleque, A.A.G.
. . . For the State
Criminal Appeal No. 2158 of 2011
This appeal is directed against the judgment and order of conviction and sentence dated 28/03/2011 passed by the learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal, Kushtia, in Nari-O-Shishu Case No.165 of 2009, arising out of Kushtia Police Station Case No.07 dated 10/11/2008 corresponding to G.R. Case No.394 of 2008, under section 7 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 convicting under the said section and sentencing him to suffer rigorous imprisonment for 14 years and to pay a fine of Tk.1,000/-, in default, to suffer rigorous imprisonment for 2 months more.
The prosecution case, in short, is that on 10/11/2008 one Most. Nurunnahar, wife of Md. Monirul Islam being informant lodged a First Information Report (Shortly FIR) with the Kushtia Police Station alleging, inter alia, that her daughter Maushumi, was a student of class VI of Blance Beem of Bangladesh Gymnastic Federation group BKSP, she used to come to Badhunat Gymnasium at Bangobandhu Market, Kushtia, for physical exercise. On the date of occurrence i.e. on 02/11/2008 at about 8.00 A.M. while the victim started for gymnasium from the residence of her grand father at that time accused Rasel, Hiru, Hashem and others kidnapped her and she did not return home. In this regard the informant lodged general diary entry being No.83 dated 02/11/2008 with the Kushtia Police Station. Thereafter the informant and her relatives searched for the victim at every possible places but failed to recover. The accused Rasel made a call from his cell phone to the cell phone of informant’s brother and informed him that they kidnapped the victim Mowshumi and got her married. The accused-appellant Rasel also threatened him to accept their marriage otherwise he would go to India along with the victim, hence the case.
One Md. Abdul Khaleque Howlader, Sub-Inspector of Police, Kushtia Police Station, was appointed investigating officer of the case and as investigating officer of the case he visited the place of occurrence, made sketch map of the place of occurrence along with an index and recorded statements of the witnesses under section 161 of the Code of Criminal Procedure. All on a sudden the victim and accused Rasel surrendered before the court of Magistrate. The investigating officer made arrangement for medical examination of the victim and also made arrangement for recording statement under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, and after investigation having found prima-facie case submitted charge-sheet under section 7, 9(1), 30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 against the accused persons.
Thereafter the case record was transmitted to the Nari-O-Shishu Nirjatan Daman Tribunal, Kushtia for trial, and the same was renumbered as Nari-O-Shishu Case No.165 of 2009 and the learned Judge of the Tribunal, Kushtia took cognizance against the appellant and others. Accordingly, charge was framed against the convict-appellant and others under section 7, 9(1), 30 of the said Ain and the same was read over to the appellant and others who pleaded not guilty of the offence and claimed to be tried in accordance with law.
During trial the prosecution examined as many as 8 witnesses but the defence examined none.
From the trend of cross-examination of the P.Ws. the defence case is that the convict-appellant is an innocent person and he has been falsely implicated with this case as the victim girl willfully went with him out of love and she got married and the convict appellant neither kidnapped her on married by force.
After conclusion of the hearing the parties and on consideration of the evidence and the materials on record and in view of the facts and circumstances of the case, the learned Tribunal came to the finding that the prosecution proved the charge beyond all reasonable doubt and accordingly, the court below convicted the appellant and acquitted the other co-accuseds from the charge levelled against them.
Being aggrieved by and dissatisfied with the aforesaid judgment and order of conviction and sentence the appellant preferred the instant appeal for setting aside the impugned judgment and order of conviction and sentence passed against him.
Mr. Md. Shirajul Islam, the learned Advocate appearing on behalf of the appellant submits that the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal, Kushtia has misread the evidence and misinterpreted the law, thus passed the judgment and order of conviction which is not tenable in the eye of law. He submits that the convict appellant Mehedi Hasan alias Rasel is an innocent person and he has been falsely implicated with the case rather Rasel had love affairs with the victim and out of such love the victim girl willfully went with Rasel and got married. He also submits that the appellant Rasel did not kidnap her and the learned Judge totally failed to consider the evidence adduced by the witnesses, as such, the order of conviction and sentence is liable to be set-aside.
On the other hand Mr. Md. Zahurul Islam, the learned Deputy Attorney General, appearing on behalf of the State submits that the prosecution by producing sufficient evidence has been able to prove case beyond all reasonable doubt, as such, there is nothing to be interfered by this court in this case, so, the appeal should be dismissed.
We have heard the submission of both sides and perused the impugned judgment and order of the learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal, Kushtia and the L.C. Record. Let us now discuss the relevant evidence and other materials on record together with the attending facts and circumstances of this case in our own way to ascertain whether the Tribunal committed any illegality in passing the order of conviction and sentence.
P.W.-1, Nurrunnahar is the informant of the case and as well as the mother of the victim who supported the FIR version. She also proved the FIR as Exhibit-1 and her signature on it Exhibit 1/1. In her cross-examination, she denied all the suggestions given by the defence. But in cross-examination on re-call she stated that she got married twenty years back, victim has been given marriage on 16.12.2009, before marriage the victim divorced the accused person.
P.W.-2, Mowshumi Aktar is the victim of the case, she supported her statement recorded under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, and she has identified her statement (Exhibit-2/1). In her cross-examination, she denied all the suggestions given by the defence. But in cross-examination on re-call, she admitted that she was married with Saddam Hossain on 16/12/09 and she also stated that she married accused Rasel on 02/11/08 and divorced him on 17/12/08 and she further deposed that in both the Kabin Namas her age was shown as 18 years.
P.W.-3, Osman in his examination in chief stated that victim Mowsumi is his niece who, on her way to physical exercise centre was kidnapped by the accused person and later on he heard that she was raped. In cross-examination, he stated that at the time of occurrence he was not at home however, he denied the suggestions by the defence.
P.W.- 4, Nur Mohammad is the father of the informant and also the grand father of the victim. In his examination in chief he stated that he heard that the convict appellant Rasel married the victim. In his cross-examination, he stated that he did not see the occurrence, he was not examined by the police, it was not known to him whether the victim divorced Rassel, he denied the suggestions by the defence.
P.W.-5, Dr. Abdus Salam, Medical Officer and one of the member of the medical board, in his examination in chief stated that they have examined the victim Mowshumi Aktar on 26/01/09 and found that the hymen of the victim was old ruptured, external and internal injury were absent and they have found no sign of recent sexual intercourse on the person of the victim. The medical board also found that the victim is about 13 to 14 years old. He has identified the medical report (Exhibit-3) and his signature on it (Exhibit-3/1) and he also identified signature of the other members of the medical board on it (Exhibit-3/2 series). In cross-examination, he deposed that the victim did not disclosed anything about rape or sexual intercourse as well as there was no mark upon the body of the victim.
P.W.-6, Babu was tendered by the prosecution. On interrogation by court, he deposed that he was the publicity secretary of the policing committee. He stated that he talked over mobile phone with the victim and accused Rasel, they married each other and there was nothing as to rape or use of face. In his cross-examination by the court, he deposed that he handed over both the victim and the convict Rasel to the court because they stated that they would not be alive without each other. He was also not examined by the police.
P.W.-7, Rakon is the local witness. He stated in his examination in chief that he worked at Hasan Jewelers, Kushtia and convict Rasel was worked nearby Reshmi Jewelers. The victim visited Rasel time to time as they had love affairs. He further stated that in the year 2008 the victim Mowshumi took away the accused Rasel and they got married. He also admitted that he signed in the Nikahnama as witness.
P.W.-8, Md. Abdul Khalque, who is the investigating officer of the case in his examination in chief stated that he visited the place of occurrence, prepared sketch map of the place of occurrence along with index, recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure and arranged for medical examination of the victim and also arranged for recording her statement under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, and having found prima-facie case submitted charge sheet against the convict appellant and others co-accused under section 7, 9(1), 30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. He also Exhibited all documents. In his cross-examin-ation he stated that he got the Kabin Nama, affidavit of marriage between the convict Rasel and the victim Mowshumi during investigation. He denied other suggestions given by the defence.
These are all evidence adduced by the prosecution.
On perusal of the aforesaid evidence of the prosecution witnesses it appears that P.W.-1, Nurunnahar is the informant and mother of the victim. She has stated in her cross-examination on re-call, “২০ বৎসর পূর্বে আমার বিয়ে হয়। বিয়ের এক বৎসর পরে ভিকটিমের জন্ম হয়।” According to the aforesaid statement we find at the time of occurrence the victim was about 17 years old. P.W.-2 who is the victim stated in her cross-examination on re-call that-“০২/১১/২০০৮ খ্রিঃ তারিখে আসামীর সাথে আামার বিয়ে হয় এবং ১৭/১২/২০০৮ খ্রিঃ তারিখে আসামীকে তালাক প্রদান করি। উভয় কাবিন নামায় আমার বয়স ১৮ বৎসর উল্লেখ আছে।”। That the victim herself stated that her age was about 18 years. P.W.-3. Osman is brother of the informant and he had no knowledge about the occurrence. P.W.-4. Nur Mohammad the father of the informant deposed that- “আমি নিজে ঘটনা প্রত্যক্ষ করি নাই।” P.W.-5. Dr. Abdus Samad deposed that they did not find recent sign of rape, P.W.-6. Babu is a very important and independent witness of the case, who was tendered by the prosecution but he deposed on interrogation by the court as follows; -“আমি পুলিশিং কমিটির প্রচার সম্পাদক। আসামী রাসেলের আম্মা লিখিত অভিযোগ দেয়। আমরা দুই পক্ষের সাথে আলাপ করি। মৌসুমী ও রাসেলের সাথে আমি মোবাইল ফোনে কথা বলি। তারা পরষ্পর বিয়ে করে। কোন অপহরনের ঘটনা ঘটে নাই।” In his cross-examination, he also stated, “আমি আসামী ও ভিকটিমকে কোর্টে সোপার্দ করি। কারন হলো তারা বলে যে, তারা একে অপরকে ছাড়া বাঁচবেনা।” P.W.-7. Rakon is the worker of the Hasan Jewelers at Kushtia, who deposed as follows; “আমি হাসান জুয়েলার্সে স্বর্নের কাজ করি। আসামী রাসেল ঐ সময়ে পার্শ্ববর্তী রেশমী জুয়েলার্সে কাজ করিত। মৌসুমী মাঝে মাঝে ঐ দোকানে রাসেলের নিকট আসিত। তাদের মধ্যে ভালবাসা ছিল। ০৮ সালে মৌসুমী রাসেলকে ডেকে নিয়ে যায়। তাদের বিয়ে হয়। তাদের নিকাহ নাময় স্বাক্ষর করি।” P.W.-8. Md. Abdul Khaleque is the investig-ating officer of the case.
We have given our anxious consideration to the evidence adduced by the prosecution witnesses along with other materials. Though the prosecution claimed that the victim Mowshumi was kidnapped by the appellant but the prosecution witnesses did not support this contention of the prosecution rather all the disinterested witnesses have deposed otherwise. P.Ws.1, 2, 3 and 4 are the close relatives and they have supported the prosecution story but the disinterested witnesses like P.Ws.6 and 7 have falsifies the interested witnesses. These two witnesses have categorically stated that there is nothing as to kidnap rather the victim Mowshumi had a love affairs with the appellant and she eloped with him, latter they got married and lived as husband and wife.
P.W.6-Babu categorically stated as follows; “ আমি আসামী ও ভিকটিম কে কোর্টে সোপর্দ করি। কারন হলো তারা বলে যে, তারা একে অপরকে ছাড়া বাঁচবে না।” From the above statement of the P.W. it appears that there was a deep love in between the convict and victim and out of that love they married each other but the mother of the victim girl has lodged the FIR without any iota of truth. The contention of P.W.6 has also been corroborated by P.W.7 and this P.W.7 is none but the witness of the Kabinnama. It is further evident from the medical report and the testimony of the doctor who appeared as P.W.5 that they did not find any recent sign of forcible sexual intercourse, so it is very much clear from this evidence that the doctor found no sign of sexual intercourse nor any use of force. So, it is clear that she was the consenting party to the intercourse. So, the contention of the prosecution has no legs to stand rather the contention of P.Ws.6 and 7 have strong legal footing.
The learned Tribunal has opined that the victim was minor at the time occurrence but this contention has not been supported by the kabinnama (as to marriage between the accused and the victim) where the age has been shown as 18 years, but the medical report shows that she was 13 to 14 years. The Tribunal has observed that at the time of occurrence the victim was about 13-14 years old and the consent of a girl aged below 16 years as to consent of marriage is absolutely immaterial.
In the Medical Jurisprudence and Toxicology by Jaising P Modi, it has been observed that the principle to form a fairly accurate opinion about the age of an individual, especially in earlier years, are teeth height and weight, ossification of bones and minor signs. In ascertaining the age of young persons, radiograms of several main joints of the upper or the lower extremely of one or both sides of the body should be taken.
We should bear in mind that age is always depend upon the growth of the person who has been examined, a male or female of 18 years can be found as 15 or 16 years due to lack of his or her development of the body and again a male or female of 18 years can be found as 19 or 20 years and the reason is that his or her development and puberty was earlier.
So, the opinion of the doctor as to the age of the victim is not authenticated one in our view because the way the victim should be examined has not been done. There is no opinion as to the teeth, because as per Modi’s Medical Jurisprudence to ascertain the age of any person teeth is an important factor. ‘Modi’ has also observed ‘the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depend upon in estimating age in medico legal cases.’
As we have already found that there is nothing as to abduction in the instant case rather it is a case of elopement and the way the opinion of the doctor as to ascertaining age has been given, in our view, is not a proper one so, we do not find any reason to convict the appellant under the provision of Nari-0-Shishu Nirjatan Daman Ain, 2003, thus, we find merit in the instant appeal.
In the result, the appeal is allowed. The impugned judgment and order of conviction and sentence dated 28/03/2011 passed by the learned judge Nari-O-Shishu Nirjatan Daman Special Tribunal, Kushtia in Nari-O-Shishu Case No.165 of 2009 arising out of Kushtia Police Station Case No.7 dated 10/11/2008 corresponding to G.R. Case No.394 of 2008 under section 7 of the Nari-O-Shishu Nirjatan Daman Ain 2000 is here by set-aside. The convict appellant is acquitted from the charge leveled against him. The convict-appellant Mehedi Hasan alias Rasel be set at liberty at once, if not wanted in connection with any other case or cases.
Send down the L.C. records and comm-unicate this order at once.