The State v. Robin

Case No: CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 119 OF 2014

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Biswajit Deb Nath,Md. Khurshid Alam Khan,,

Case Year: 2014

Appellant: The State

Respondent: Robin

Subject: Remand of a Case,

Delivery Date: 2014-07-24

IN THE SUPREME COURT OF BANGLADESH

Appellate Division


PRESENT

Madam Justice Nazmun Ara Sultana  

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali


CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 119  OF  2014

(From the judgement and order dated 5th of April, 2011 passed by the High Court Division in Criminal Miscellaneous Case No.20704 of 2010)


The State

 

  ... Petitioner

  = Versus =

 

 

Robin

... Respondent

For the Petitioner

 

:Mr. Biswajit Deb Nath, Deputy Attorney General, Instructed by Mrs. Sufia Khatun, Advocate-on-Record

For the respondent

:Mr. Md. Khurshid Alam Khan, Advocate, instructed by Mr. Zahirul Islam, Advocate-on-Record

Date of hearing & judgement

:The 24th of July, 2014




J U D G E M E N T

 MUHAMMAD IMMAN ALI, J:-

This criminal petition for leave to appeal is directed against the judgement and order dated 05.04.2011 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 20704 of 2010 making the Rule absolute.

The facts relevant for disposal of the instant criminal petition are that one Kohinoor Begum, daughter of Jalil Dewan, as informant lodged a First Information Report (FIR) with Borhanuddin Police Station on 26.4.2004 alleging, inter alia that on 25.4.2004 at about 6:00 p.m. the informant along with her uncle Abdul Kader, aunts Champa and Julekha went to Rajmoni Cinema Hall at Borhanuddin to watch a film. At about 9:30 p.m. after watching a movie they started to go to their house by a rickshaw. Accused Bahar was running behind the informant’s rickshaw and three unknown accused followed her by a van. The accused on the van overtook the rickshaw and stopped her in front of Monir Bakery at Borhanuddin ghat and they were taken inside the bakery. The accused persons talked with the informant party in different ways and at one stage they started beating the informant and her uncle and she was taken to a nearby garden towards the East. The informant was raped firstly by Bahar and then by other accused. From their conversation, accused Bahar and co-accused (1) Robin (2) Shaharul were recognized and she could not identify the other accused but if she saw them again, she could identify them. The accused persons confined her in the garden for the whole night and in the following morning on 26.4.2004 she came back home alone after being released by them. She informed the matter to her relatives. Thus Borhanuddin Police Station case No. 9 dated 26.04.2004 under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 was started against the respondent and others. 

After investigation, the police submitted charge sheet, being No. 33 dated 30.06.2004, against all the FIR named accused under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.

Thereafter, the case record was transmitted to the Nari-O-Shishu Nirjatan Daman Tribunal, Bhola for trial. The learned Judge of the said Tribunal took cognizance of the offence against the respondent and others under the same section. The case was registered as Nari-O-Shishu Case No. 98 of 2004. Thereafter, he framed charge against all the accused including the respondent under section 9 (3) of the Ain. Later on charge was framed under sections 7/9 (3) of the said Ain which could not be read over to the accused persons as they were absconding.

The prosecution examined 6 witnesses to substantiate their case who were not cross examined by the defence as the accused were absconding.

After conclusion of trial the learned Judge of the Tribunal found the respondent and two others guilty and convicted them under sections 7 and 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them under section 7 to suffer rigorous imprisonment for 14 years and to pay a fine of Tk. 1,000/-, in default to suffer rigorous imprisonment for 1(one) month more, and under section 9(3) to suffer rigorous imprisonment for life and a fine of Tk. 1,00,000/- in default to suffer rigorous imprisonment for 3 (three) years more.

Being aggrieved by the judgement and order of conviction and sentence, and as the statutory period for filing the appeal had expired, the respondent filed Criminal Miscellaneous Case No. 20704 of 2010 under section 561A of the Code of Criminal Procedure before the High Court Division and obtained Rule.

By the impugned judgement and order, the High Court Division made the Rule absolute. Hence, the State as petitioner has filed the instant criminal petition for leave to appeal before this Division.

Mr. Biswajit Deb Nath, learned Deputy Attorney General appearing on behalf of the petitioner submitted that the case is one under sections 7/9 (3) of Nari-O-Shishu Nirjatan Daman Ain, 2000 wherein the trial Court after discussion of the evidence convicted the respondent Robin under the said sections and sentenced him to suffer rigorous imprisonment for 14 years and for life respectively along with award of fine. He further submitted that the respondent was absconding all along and the positive evidence of the victim as well as other witnesses was not controverted in any way and hence the trial Court rightly convicted and sentenced the accused respondent, and the High Court Division has seriously erred in quashing the conviction and sentence holding that the case was one of no legal evidence. He pointed out that the High Court Division rightly came to the finding that the provisions of sections 87 and 88 of the Code of Criminal Procedure were duly complied and notice of the trial was published in daily newspapers and, therefore, the High Court Division did not find any procedural laches in this case. He submitted that having found that the procedure of the trial was in accordance with law, the High Court Division erred in setting aside and quashing the conviction and sentence of the respondent holding that there was no legal evidence when the evidence on record clearly shows that there was positive evidence of abduction and rape which was corroborated by other witnesses.

Mr. Md. Khurshed Alam Khan, learned Advocate appearing for the respondent made submissions in support of the judgement and order of the High Court Division. He submitted that there were serious contradictions between the First Information Report lodged by the victim herself and her evidence given in Court and accordingly the High Court Division disbelieving the evidence of the witnesses rightly found that the case was one of no evidence. He finally submitted that the respondent was not aware of the trial till his arrest on 18.5.2010 otherwise he would have contested the case by surrendering before the trial Court.

We have considered the submissions made by the learned D.A.G. for the petitioner and learned Advocate for the respondent and perused the impugned judgement and order as well as other materials on record.

We find from the record that the victim, as informant, lodged the First Information Report naming the accused respondent as one of the perpetrators involved in abducting and raping her. She maintained her story of abduction and rape in her deposition before the Court. The trial Court upon assessment of the evidence convicted and sentenced the respondent along with others, although the trial took place in the absence of all the accused persons.

However, in view of the fact that the accused respondent did not appear in the trial, and was therefore unable to cross-examine the prosecution witnesses, we are of the view that ends of justice will be met if the case is remanded to the trial Court for giving an opportunity to the respondent to cross-examine the prosecution witnesses, if he so desires and also in order that the Court may examine the accused under section 342 of the Code of Criminal Procedure.

In view of the above, the criminal petition for leave to appeal is disposed of. The impugned judgement and order is set-aside. The case is remanded to the trial Court so far as it relates to accused respondent Robin with the direction to allow the accused to cross-examine the witnesses, if he so desires and to conclude the trial in accordance with law. The accused respondent Robin be enlarged on bail to the satisfaction of the trial Court till conclusion of the trial.