Nazrul Islam Vs. The State, 3 LNJ (2014) 461

Case No: Criminal Revision No. 165 of 1998

Judge: A. K. M. Shahidul Huq,

Court: High Court Division,,

Advocate: Bishmadeb Chakraborty,,

Citation: 3 LNJ (2014) 461

Case Year: 2014

Appellant: Najrul Islam

Respondent: The State

Subject: Quashment of Proceedings,

Delivery Date: 2012-08-29


HIGH COURT DIVISION
(Criminal Revisional Jurisdiction)
 
Sheikh Rezowan Ali, J.
And
A. K. M. Shahidul Huq, J.

Judgment on
29.08.2012
  Najrul Islam
...Accused-Petitioner
Versus
The State
. . . Opposite Party.
 
 
Code of Criminal Procedure (V of 1898)
Section 561A
It is now a well-established principle of law that quashment under section 561A of the Code of Criminal Procedure is possible in cases of (a) facts alleged not constituting any offence (b) bar of law (c) coram nonjudice (d) lack of legal evidence adduced and for ends of justice. None of the conditions referable to (a), (b) and (c) is applicable in the present case before us. Only point that is before us for consideration is condition no (d) lack of legal evidence adduced. This court in its jurisdiction not being a court of appeal has hardly any scope to assess and appreciate evidence like a court of appeal. The witnesses who were examined were competent witnesses. There was no legal flaw in their evidence. On perusal of the depositions of P.Ws. and other materials on record and on careful consideration we find that the petitioner’s case does not come within the purview of the aforesaid four conditions as laid down above. The impugned judgment and order of conviction passed by the learned tribunal does not call for any interference under the purview of section 561A of the Code of Criminal Procedure. The petitioner is not at all entitled to get any relief under the inherent jurisdiction of this Court under section 561A of the Code of Criminal Procedure. . . .(21 and 22)

No one appears,
. . .For the petitioners.

Mr. Bishmadev Chakrabortty, D.A.G. with
Ms. Syeda Rabia Begum, A.A.G.
. . .For the State-opposite party.

Criminal Revision No. 165 of 1998
 
JUDGMENT
A. K. M. Shahidul Huq, J:

This Rule was issued calling upon the opposite parties to show cause as to why the impugned Judgment and order dated 18.09.1997 passed by the learned Additional Sessions Judge (3) Special Court, Dinajpur in Special Court Case No. 97 of 1996 should not be quashed or such other or further order or orders passed as to this Court might seem fit and proper.

Facts relevant for purpose of disposal of the instant Rule, in short, are that on 15.03.1996 informant Asma Khatun (15) along with her father A. Hamid went to the Katwali Police Station Dinajpur and lodged an Ejahar to the effect that on 12.3.1996 she along with her younger sister Aseda Begum and maternal cousin Tahera watched Matinee Cinema show at local Chourangi Cinema Hall at 3.00 PM. Cinema show over, they started for home by a rickshaw.  At about 8.00 PM they reached a place named Baterhat and by leaving the rickshaw proceeded for home on foot. When they reached a place named Kushumbi accused Najrul Islam came across them with a torch in his hand and expressed to the informant, “ I shall marry you, come with me.” When the informant refused to go with him, he forcibly pushed cloth inside her mouth and proceeded towards Khanpur village. At that time one Anisur Rahman of village Chak Gopal appeared before them. The accused threatened him. Aseda Begum and Tahera Begum went away with Anisur Rahman. The accused petitioner then dragged her at the forest of Khanpur Zagirpara at 11.00 PM and raped her forcibly there. Informant was then taken at the house of one Matin of Khanpur village at 2.00 am, where she stayed at night. On the following day i.e. on 13.03.1996 (Thursday) the accused petitioner came to her in the evening and proceeded with her to his house. At about 8.00 at night he asked her to wait in front of a person’s house at Khanpur and he entered into that house. Taking advantage of his absence she fled away from the clutch of the accused-petitioner and after returning home narrated the occurrence to her parents. On the basis of the said information recorded by the O.C, Dinajpur, Kotwali Police Station case No. 23(3) 1996 (G.R. Case No. 419 of 1996) was started against the accused petitioner for the offence punishable under section 376 of the Penal Code.

The Police after investigation into the case submitted charge sheet against the accused petitioner under Section 9(Ga) of the Nari and Shishu Nirjatan (Bishes Bidhan) Ain 1995. The learned Judge, Special Court as well as the Session Judge, Dinajpur was pleased to take cognizance of the offence under Section 9(Ga) of the said Ain on 10.09.1996. The accused petitioner being absconding necessary formality under section 20(5) of the Said Ain, 1995 were observed for his trial in absenita. The learned Special Judge framed charge against the accused –petitioner for the offence punishable under Section 6(1) of the Nari and Shishu Nirjatan (Bishes Bidhan) Ain, 1995 by his order dated 27.11.1996. The offence having provided capital punishment learned Judge appointed state defence lawyer to defend the absconding accused petitioner. The case was thereafter transmitted to the Court of Special Judge and Additional Sessions Judge (3), Dinajpur for disposal.

At the time of trial the prosecution examined 8 witnesses including the victim informant and of them one was tendered and prosecution witnesses Nos. 2-4 were declared hostile by the prosecution. After closure of the evidence of the prosecution witnesses there was no scope for examination of the accused petitioner under section 342 of the Code of Criminal Procedure he being absconding from the very beginning.

After hearing the learned Special Public Prosecutor and the state Defence Lawyer and considering the evidences on record, the learned Special Judge and Additional Sessions Judge-3, Dinajpur was pleased to convict the accused petitioner under Section 9 (Kha) of the Nari and Shishu Nirjatan (Bishes Bidhan) Ain, 1995 and sentenced him, thereunder  to suffer rigorous imprisonment for 10 years and also to pay a fine of Taka one thousand, in default, to suffer rigorous imprisonment for 3 months more by his judgment and order dated 18.09.1997. The petitioner after coming to know about the case on 20.10.1997 voluntarily surrendered before the Court of the Additional District Magistrate, Dinajpur on 21.10.1997 and he was taken into custody on that day.

Being aggrieved by and dissatisfied with the aforesaid impugned judgment and order dated 18.9.1997 passed by the learned Special Judge and the Additional Sessions Judge-3, Dinajpur in Special Court Case No.97 of 1996 convicting the accused petitioner under Section 9(Kha) of the Nari and Shishu Nirjatan (Bishes Bidhan) Ain, 1995  and sentencing him, thereunder to suffer rigorous imprisonment for 10 years and directing  him to pay a fine of Taka 10,000/- (Ten thousand) in default to suffer rigorous imprisonment for 3 (Three) months more, he preferred before a Division Bench of this  Court  an application under Section 561A of the Code of Criminal Procedure and obtained the present rule.

No one appears before us to make submission in support of the Rule when this item has been taken up for hearing.

Mr. Bishmadev Chakrabortty, the learned Deputy Attorney General  appearing for the State-respondent submits that the learned Additional Sessions  Judge did not commit any wrong in passing the impugned judgment and order convicting the petitioner under Section 9 (Kha) of the Nari and Shishu Nirjatan Daman (Bishes Bhidan) Ain, 1995 and sentencing him, thereunder to suffer rigorous imprisonment for 10 years and also directing him to pay a fine of Taka 10,000/-, in default, to suffer  rigorous imprisonment for 3 months more.

At the trial prosecution examined 9 witnesses out of 10 witnesses and one was declared tendered.
         P.W.1 Ms. Asma Khatun is the victim. In her examination-in-chief she narrated the FIR case of the prosecution in material particulars. We need not repeat the same here. She proved the FIR lodged by her as Ext. I and her signature thereon as Ext. 1/1. In cross examination she stated that she was married after to the occurrence and her husband’s name was Md. Ismail Hossain. She further stated she left with the accused petitioner for marriage with him. But when she came to know that he had wife she returned (home). He did not violate her.

P. W. 2 Abdul Gani was declared hostile when he stated in his examination-in-chief that the informant told him that petitioner kept her sitting in the wheat field. Nothing come out from his mouth supporting prosecution case.

P. W. 3 Md. Munzur Ali did not know anything about the incident as stated by him in his examination-in-chief. He was also declared hostile and cross-examined by the public prosecutor but nothing cause out from his mouth supporting prosecution case.

P. W. 4 Most. Momena Khatun stated that she did not know anything about the case and that she did not know the informant. The prosecution declared this witness hostile and cross examined her.  In cross P. W. 4 stated that petitioner Nazrul Islam came to her residence along with a teen aged girl and left her residence on the following day.

P. W. 5 Most. Rasheda Khatun stated in her examination-in-chief that she was 10 years of age. Accused Nazrul Islam took away her sister forcibly. At that time she, victim Asma, her maternal cousin Tahera were returning home by a rickshaw after cinema show. At Baterhat they left the rickshaw and were returning home on foot towards the eastern direction when accused Nazrul Islam forcibly took away the victim by gagging her mouth. They, the two, then returned home weeping and narrated the occurrence to their parents and neighbours. On the following day when accused Nazrul was taking away victim Asma to another place she returned home by playing a trick upon him and narrated the occurrence. In her cross-examination she stated that her cousin Taher was married at the time of occurrence. She denied the defence suggestion that Nazrul Islam did not take away the victim forcibly. She did not see accused Nazrul before the occurrence. After her return victim told that accused Nazrul forcibly took her away. Since then she had been knowing Nazrul. She denied to have deposed a falsehood.

P. W. 6 Abdul Hamid is the father of the victim Asma Khatun. He stated in his examination-in-chief that victim Asma was his daughter. On the 30th Falgun, the day being Wednesday Asma, Asheda (@Rasheda) and his niece Taher went to Dinajpur and after collecting the next date of Taher’s case, they watched a cinema show and after having meal in a hotel were returning home by a rickshaw. After reaching Baterhat, they left the rickshaw and were returning home on foot. It was dusk when they reached to the east of village Kusumleondi. Accused Nazrul Islam forcibly took Asma away to a wheat field at Khanpur and raped her forcibly. From there he took her to the house of one Motin of Khanpur. On the following day (Thursday) at night victim Asma fled away and returned home and narrated the occurrence. On the following day he took Asma to Police Station Asma then lodged the case. She was medically examined after the occurrence and Nazrul proposed to compound the case on payment of taka 10,000/- to which he did not agree. In his cross- examination he stated that on the following  day when victim Asma returned home his neighbours Momtaz and Hafiz who were present also heard about the occurrence. They were not cited witnesses in the case. He denied the defence suggestion at the of any litigation mongering people conspiracy he lodged the case or that accused Nazrul did not take her away forcibly.

P.W. 7 Ramzan Ali was tendered. Defence declined to cross examine him.

P.W. 8 Dr. Md. Golam Mostafa Resident Medical Officer who examined the victim proved Medical report of the victim as Ext. 2. The following opinion was given, “No sign of sexual assault present Ges bony age of the victim is between 14-15 years”. This witness was not cross examined by the defence.

P. W. 9 S. I. Moksad Ali is the investigating officer. At the relevant time he was posted as S. I. at Kotwali Police Station, Dinajpur. He deposed that S. I. Golam Mortoza recorded the FIR on the basis of statement made by the informant on 15-3-1996 and entrusted him with investigation into the case. He knew his handwriting. He proved the filled in FIR form as Ext. 3. P. W. 9 also stated that he visited the place of occurrence and prepared the sketch map and Index which he proved as Ext. 4 and 5, respectively and proved his signature thereon as  ext. 4/5 respectively. He seized alamat. He proved the seizure list as ext. 6 and his signature thereon as ext. 6/1. He recorded statements of the witnesses under section 161 of the Code of Criminal Procedure. Victim Asma Khatun was examined by the Doctor. After investigation he submitted charge sheet against accused Nazrul Islam. In cross examination he stated that letter ‘Ka’ was the place of occurrence but he did not mention about the nature and particular of the place. The occurrence took place in a field.

On the basis of the aforesaid evidence on record learned Judge found the accused petitioner guilty of the offence under section 9(Ga) of the Nari-O-Shishu Nirjatan (Bishes Bidhan Ain) 1995.

It will not be out of place of mention here that though charge was framed against the accused petitioner under section 6(1) of the said Ain, 1995 for commission of rape upon the victim, the said victim Asma Khatun who deposed as PW1 did not allege commission of rape upon her. On the contrary, she stated that she left with the accused petitioner and returned home when she found that he was married and had wife. Medical examination report did not support commission of rape upon her. But consistent evidence of the PWs proved that she was forcibly taken way by the accused petitioner when she along with her younger sister PW5 Asheda and cousin (sister) Taher were returning from Dinajpur after watching a cinema show. PW5 Asheda categorically proved the same now a pertinent question is involved if there is scope to quash the impugned judgment and order of conviction.

It is now a well-established principle of law that quashment under section 561A of the Code of Criminal Procedure is possible in cases of (a) facts alleged not constituting any offence (b) bar of law (c) coram nonjudice (d) lack of legal evidence adduced and for ends of justice. None of the conditions referable to (a), (b) and (c) is applicable in the present case before us. Only point that is before us for consideration is condition no (d) lack of legal evidence adduced. This court in its jurisdiction not being a court of appeal has hardly any scope to asses and appreciate evidence like a court of appeal. The witnesses who were examined were competent witnesses. There was no legal flaw in their evidence.

On perusal of the depositions of P.Ws. and other materials on record and on careful consideration we find that the petitioner’s case does not come within the purview of the aforesaid four conditions as laid down above. The impugned judgment and order of conviction passed by the learned tribunal does not call for any interference under the purview of section 561A of the Code of Criminal Procedure. The petitioner is not at all entitled to get any relief under the inherent jurisdiction of this Court under section 561A of the Code of Criminal Procedure.

In that view of the matter we find that the learned Additional sessions Judge rightly convicted the accused Nazrul Islam and did not commit any wrong in passing the impugned judgment and order of conviction and sentence, thus it does not deserve any interference under section 561A of the Code of Criminal Procedure. So the petitioner is not entitled to get any relief under Section 561A of the Code of Criminal Procedure.

The impugned judgment and order of conviction passed by the learned Special Court and the Additional Sessions Judge, Court No. 3 Dinajpur in special case no. 97 of 1996 is hereby affirmed.

In the result, the Rule is discharged.

         Send down the lower Court records along with a copy of this judgment immediately for information and necessary action.

Ed.