Sukur Mahmood and others Vs. The State [4 LNJ AD (2015) 15]

Case No: Criminal petition for leave to appeal No. 389 of 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Md. Shamsul Huq,,

Citation: 4 LNJ AD (2015) 15

Case Year: 2015

Appellant: Sukur Mahmood and others

Respondent: The State

Delivery Date: 2014-02-13

APPELLATE DIVISION
(CRIMINAL)
 
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
Mohammad Anwarul Haque, J

Judgment
13.02.2014
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Sukur Mahmood and others
. . .Petitioner
-Versus-
The State
. . . Respondent
 
Evidence Act (I of 1872)
Section 45
Nari-O-Shishu Nirjaton (Bishesh Bidhan) Ain (XVII of 1995)
Section 8(1)
The opinion of the doctor as to age is belied by the fact that his report shows the taking place of menarche one year back. In context of development of girls in Bangladesh the age stated by the victim would be more commensurate with menarche having started one year previously. The accused-petitioners having no morality could dare to sell the victim-P.W.2, Nazma to a brothel. They were rightly convicted under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentenced them to suffer imprisonment for life. The order of conviction and sentence was rightly affirmed by the High Court Division.         … (15 and 16)

For the Petitioners: Mr. Md. Shamsul Huq, Advocate, instructed by Mr. Md. Abu Siddique, Advocate-on-Record.
For the Respondents: None Represented

Criminal petition for leave to appeal No. 389 of  2010
 
JUDGMENT
 
Syed Mahmud Hossain, J: This criminal petition for leave to appeal is directed against the judgment and order dated 14.02.2010 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1691 of 2001 challenging the judgment and order dated 24.04.2001 passed by the Nari-O-Shishu Nirjatan (Daman) Bishesh Adalot No.3, Tangail in Nari-O-Shishu Nirjatan Daman Case No.150 of 1999 convicting the accused-appellants under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Didhan) Ain, 1995 and sentencing each of them to suffer imprisonment for life and also to pay a fine of Tk. 5,000/- each, in default, to suffer imprisonment for 1 (one) year more.

The facts, leading to the filing of this criminal petition for leave to appeal, in a nutshell, are:

     The prosecution case is that on 01.12.1998, Md. Moslemuddin lodged a First Information Report with Shakhipur Police Station against the appellant-petitioner. The informant is a poor man and he has been earning his livelihood as a day labourer. About five months back, the accused-petitioners took his minor daughter, Nazma Khatun, to Tangail to provide her with a job at a monthly salary of Tk.300/- on the assurance that his daughter would be happy in Tangail in the house of their relatives and she would be given in marriage to a good boy. Believing in the assurance of the accused-petitioners, the informant allowed his daughter to go with them. The assurance was also given that within 10/15 days, she would come back. Accordingly, the informant was eagerly waiting but meanwhile ¾ months elapsed. Then the informant exerted pressure upon the accused-petitioners through village ‘elites’ but at that time they denied taking his daughter. The informant then tried to trace out his daughter in different places. After that, he came to know that the accused-petitioners very tactfully sold his daughter in the brothel and her name was changed to Dilara who kept in the room of ‘Jharna’, the leader of the brothel. She was compelled to lead her life as a prostitute. On getting such news, the informant along with Md. Fayez Uddin Sentu, Shah Alam went to the Police Station and with the help of the police force recovered his daughter on 29.11.1998 at 7 o’clock from the brothel and she was taken in his custody. Hence Shakhipur Police Station Case No.1/106 dated 01.12.1998 was started against the accused-petitioners.      

Police took up investigation of the case and on conclusion thereof, submitted charge-sheet against accused petitioners under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995.

The case record was transmitted to the Court of the learned Judge, Nari-O-Shishu Nirjatan Daman Bishesh Adalat No.3, Tangail for trial where it was registered as Nari-O-Shishu Nirjatan Daman Case No.150 of 1999.

The prosecution examined thirteen witnesses in support of its case while defence examined none.

The defence case as could be gathered from the trend of cross-examination of the prosecution witnesses is of total denial contending, inter-alia, that the accused were falsely implicated in this case out of enmity inasmuch as they were not responsible for/connected with the occurrence. The alleged confessional statement is not true and voluntary and the same is the product of physical/mental torture.

After close of the prosecution case, the accused-petitioners in the dock were examined under section 342 of the Code of Criminal Procedure, to which, they pleaded not guilty and repeated their innocence. The defence, did not, however, examine any witness.

The learned Judge of Nari-O-Shishu Nirjatan Daman Bishesh Adalat No.3, Tangail, found the accused-petitioners guilty of the offence charged and by his judgment and order dated 24.04.2001 convicted the accused-petitioners under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentenced each of them to suffer imprisonment for life and also to pay a fine of Tk.5,000/- each, in default, to suffer imprisonment for 1 (one) year more.  

Being aggrieved by and dissatisfied with the judgment and order of the trial Court, the convict-petitioners moved the High Court Division by filing Criminal Appeal No.1691 2001. The learned Judges of the High Court Division upon hearing both the sides by their  judgment and order dated 14.02.2010 dismissed the appeal affirming the judgment and order passed by the learned Judge of Nari-O-Shishu Nirjatan (Daman) Bishesh Adalat N.3, Tangail.

Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the leave petitioners preferred this criminal petition for leave to appeal before this Division.

Mr. Md. Shamsul Huq, learned Advocate appearing on behalf of the leave petitioners, submits that the High Court Division has failed to consider that the trial Court fell into serious error in law in not considering the inherent defect of the prosecution case in that there was a G.D. Entry being No.1347 dated 29.11.1998 which did not tally with the facts set forth in the FIR filed by the informant and in that view of the matter, the petitioners should have been acquitted by giving benefit of doubt and as such, the impugned judgment should be set aside. He further submits that P.W.6, Abdul Baset and P.W.9, Asia Begum, the brother and the mother respectively of the victim did not support the prosecution case and that without considering their evidence, the High Court Division maintained the conviction and sentence of the accused-petitioners and as such, the impugned judgment should be set aside. 

We have considered the submissions of the learned Advocate, perused the impugned judgment and the materials on record.

The High Court Division came to a finding that the petition of complaint was lodged on 30.11.1998 and that the FIR was lodged on 01.12.1998 and that while she was recovered from the brothel on 30.11.1998, police went to the brothel on 29.11.1998 on the basis of G. D. No.1398 dated 30.11.1998 which was made for the security of the victim and that after recovery of the victim, the FIR was lodged. The High Court Division further found that P.W.1, the informant and P.W.2, the victim and P.Ws.4 and 5 deposed that the accused took the victim with a promise to give her job  and without doing so they sold her to a brothel and that there was no contradiction in the evidence of the victim and that of her father, P.W.1.

The High Court Division noticed that P.W.6 Abdul Baset is not the full brother of P.W.2, Nazma and that P.W.7, Asia Begum is not the mother of the victim; rather P.W.7 is the step mother of the victim. With reference to the affidavit filed by the petitioners, the High Court Division found that the petitioners tried to impress upon that the victim of her own volition went to the brothel but that the said affidavit was neither properly exhibited nor was it filed in the trial Court and that the victim denied making any affidavit. The High Court Division having considered the evidence of doctor, P.W.9 and the medical report, exhibit-1 found that the age of the victim was about 17 years on the date of her examination and that the victim in her evidence claimed that she was about 13 or 14 years old.

The finding of the doctor as to age is belied by the fact that his report shows the taking place of menarche one year back. In context of development of girls in Bangladesh the age stated by the victim would be more commensurate with menarche having started one year previously.

The accused-petitioners having no morality could dare to sell the victim-P.W.2, Nazma to a brothel. They were convicted under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentenced them to suffer imprisonment for life. The order of conviction and sentence was rightly affirmed by the High Court Division.

The conviction and sentence will serve as a deterrent and reminds us of Dr. Martin Luther King JR who once stated as under:

“Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.” 
        
The findings of the High Court Division having been made on proper appreciation on evidence of P.Ws. and other documentary evidence do not call for interference. Accordingly, this criminal petition for leave to appeal is dismissed. 

Ed.

Reference: 4 LNJ AD (2015) 15.