The New Nation - Internet Edition

High Court Division

(Criminal)

Sharif Uddin Chaklader-J.

Sheikh Abdul Awal-J.

CRIMINAL APPEAL No. 3511 of 2001.

(From the judgment and order of conviction and sentence dated 11.9.2001 passed by the Judge, Nari-O-Shishu Nirjatan Daman Adalat No.3, Naogaon in Nari-O-Shishu Nirjatan Case No. 176 of 1998.)

Md. Hareshuddin Pramanik alias Md. Hares Pramanik ……………. Convict appellant.

Vs.

The State ………..Respondent.

For the appellant : Mr. Tabarak Hossain with Mr. Mohammad Ali Azzam, Advocates.

For the State : Mr. Md. Mansur Rahman, AAG.

Judgment: 29 April, 2007

Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995-Section 6(1)- Offence of rape-

Evidence of victim minor girl of rape which appears consistent and sole basis of conviction-

In the instant case the 8 years old victim girl was forcibly raped by the convict-appellant. Her evidence appears to be natural and reliable. She is corroborated by other P.W.s and the medical report in all material particulars. Accordingly, the learned judges of the High Court Division held the judge of the Tribunal perfectly justified in convicting and sentencing the convict-appellant.

It is now well settled that the testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. Moreover, in this case, testimony of the victim girl (PW-2) finds corroboration from the other available evidence on record including medical evidence which found marks of violence on the person of the victim clearly indicting that it is a case of rape………. (Para 29)

It appears to us the overwhelming evidence of the PWs. has clearly established that it is accused Md. Hareshuddin Pramanik alias Md. Hares Pramanik, who committed the crime of' rape on the victim Rozina Khatun. The learned Judge of the Nari-O-Shishu Nirjatan Daman Bishesh Tribunal has rightly found accused-appellant Md. Hareshuddin Pramanik alias Md. Hares Pramanik guilty of the offence under, section 6(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995. Therefore, we do not find any ground to interferc with the judgment passed by the learned Tribunal Judge. . (Para :30)

JUDGMENT

SHEIKH ABDUL AWAL-J: This appeal at the instance of the convict appellant Md. Hareshuddin Pramanik alias Md. Hares Pramanik under section 24 of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is directed against the judgment and order of conviction and sentence dated 11.09.2001 passed by the Judge of the Nari-O-Shishu Nirjatan Daman Bihesh Adalast No. 3, Naogaon in Nari-O-Shishu Nirjatan Case No. 171 of 1998 convicting the accused appellant under section of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and sentencing him thereunder to suffer rigorous imprisonment for life.

2. The prosection case as transpired from the cvidance or PW-l Md. Meser Uddin is that on 1.9.1998 at evening he went to set up net for catching fish in a nearby marsh from his house while his grand daughter Most. Rozina aged about 8 and Md. Hareshuddin Pramanik also came there for catching fish. After setting up net the informant returned back to his house but seeing delay of her grand daughter Most Rozina he went forward and at 7:30 PM the accused Hares on seeing him fled away and at that time the informant saw his grand daughter lying under a palm tree in undressed condition. On that, the informant raised alarm and then witnesses namely Mofiz, Shahjahan, Alauddin and his son's wife rushed there and they brought the victim to their house and made arrangement for her treatment and also brought this matter to the notice of father and mother of the accused Hareshuddin Pramanik alias Hares. At night at about 10:00 PM the victim Most Rozina got back her sense and then on querry she disclosed that after setting up net while she was coming back to her house, the accused Hares shut her mouth with Gamcha and put off her pant and forcibly committed rape on her, the victim Rozina was brought to Naogaon Sadar Hospital for better treatment. Upon the aforesaid First Information Report Naogaon Police Station Case No.5 dated 2.9.1998 under section 6(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Aid, 1995 was started.

3. The police after investigation submitted charge sheet against the appellant under section 6(1) of the Nari-O-Shish Nirjatan Daman (Bishesh Bidhan) Ain, 1995.

4. Ultimately, the accused appellant was put on trial before the Nari-O-Shishu Nirjatan Daman Tribunal No.3, Naogaon to answer a charge under section 6(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 to which the appellant pleaded not guilty and claimed to be tried.

5. At the trial prosecution in total examined 11 witnesses to prove the charge and the defence examined none. The defence case as it transpires from the trend of cross-examination of the prosecution witnesses is that the appellant is innocent and has been falsely implicated in this case out of previous enmity and grudge.

6. After the close of the evidence, the accused appellant on dock was examined under section 342 of the Code of Criminal Procedure to which he repeated his innocence and declined to adduce any evidence but made a grievance of false implication.

7. The learned Judge of the Nari-O-Shishu Nirjatan Daman Adalat on consideration of the evidence and materials on record found the appellant guilty under section 6(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and consequently convicted and sentenced him as aforesaid.

8. Being aggrieved and dissatisfied with the said judgment and order of conviction and sentence dated 11.09.2001 the convict appellant preferred this appeal.

9. Mr. Tabarak Hossain, the learned Advocate appearing for the convict appellant, in the course of argument has taken us through the FIR, charge sheet, deposition of witnesses and other materials on record and then submits that the impugned judgment and order of conviction cannot be sustained in law because the entire case is concocted and false. The learned Advocate submits that in this case most of the witnesses are relations and interested witnesses and it is highly unsafe to rely on the evidence of conviction under the harsh provision of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 without any sorts of corroboration by independent witness. He further submits that the facts of the prosecution case do not bring it within clause (1) of section 6 of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 inasmuch as Medical report as well as testimony of doctor PW-9, Dr. Mahbub Alam did not corroborate to the evidence of PW-l, PW-2, PW-3, PW-4, PW-6 and PW 10 in respect of rape. Mr. Tabarak Hossain further submits that the medical report shows that the victim Most. Rozina did not sustain any injury on her face, cheeks or breasts at the time of commission of the alleged rape and the medical board did not detect any sign of rape on the person of the victim, although the learned Tribunal Judge without proper application of his judicial mind to the facts and circumstances of the case and evidence on record and without deciding all relevant points involved in the case in its correct perspective, most illegally and arbitrarily found the appellant guilty for commission of an offence of rape and consequently, passed the impugned judgment and order of conviction and sentence which is liable to be set aside. Mr. Tabarak Hossain, the learned Advocate in support of his submissions has relied on the decision reported in 3 BLC 182.

10. Mr. Md. Mansur Rahman, the learned Assistant Attorney-General, on the other hand, appearing for the State, submits that the learned tribunal Judge on consideration of the evidence and materials on record rightly found the appellant guilty under section 6(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and therefore, on assigning cogent and sound reason passed the impugned judgment and order of conviction and sentence which should not be disturbed. The learned Assistant Attorney-General on referring the medical examination report of the victim PW as well as the deposition of witnesses and other materials on record submits that PWs. 1-11 categorically testified in their respective testimony that the victim Most. Rozina was raped by the accused appellant which also finds support from the medical examination report and as such the appeal is liable to be dismissed.

11. To appreciate the submissions of the learned Advocates of both the sides as well as the impugned judgment from a correct angle let us now turn to the evidence on record as adduced by the prosecution to see whether the prosecution has been able to prove the guilt of the accused beyond reasonable doubts.

12. PW-1, Md. Meseruddin Pramanik is the informant of the case, who stated in his deposition that on 1.9.1998 at about 7.30 p.m. he went for catching fish in nearby marsh and at the time of setting up net he saw accused Hares and her grand daughter Rozina also setting up net for catching fish. This witness also stated that after setting up net he asked his grand daughter Rozina whether she wants to go back home with him while Rozina told him that after setting up net she will come. This witness also stated that †iwRbv wd‡i bv Avmvq Avwg †ivwRbv‡K mv‡_ †bIqvi Rb¨ AvMv‡q hvB| Zvj Mv‡Qi Kv‡Q hvIqvi Av‡MB Avmvgx nv‡im Avgv‡K †`‡L †`Š‡o cvjv‡q hvq| Avwg Zvj Mv‡Qi Kv‡Q wM‡q †`wL †ivwRbv DjsM Ae¯‘vq c‡o Av‡Q Ges ci‡bi dvd c¨v›U 2/3 Zvn `~‡i c‡o Av‡Q| ZLb Avwg wPrKvi Ki‡j kvnvRvnvb, AvjvDwÏb I gwdR AvMv‡q Av‡m| Zvnviv †ivwRbv‡K H Ae¯‘vq †`‡L| kvnvRvnvb‡K †ivwRbvi gv‡K WvK‡Z ewj| †ivwRbvi gv G‡m †ivwRbv‡K cvRv †Kvjv K‡i evox‡Z wb‡q hvq| †RvwRbvi eqm ZLb 8 (AvU) ermi gZ wQj| This witness also stated in his deposition that on 1.9.98 at night 12.00 PM Rozina got back her sense and then she disclosed that accused Hares shut her mouth with 'Gamcha' and forcibly committed rape on her. This witness also testified that on the following morning the victim Rozina was shifted to Naogaon Sadar Hospital for treatment. He identified the seized wearing pant of the victim Rozina. In cross-examination he stated that Avwg wPrKvi w`‡j †jvKRb AvMv‡q Av‡m| †ivwRbvi gv‡K †W‡K Avbvi ci †m cvRv‡Kvjv K‡i †ivwRbv‡K evox wb‡q hvq| †ivwRbvi gv nvwi‡Kb wb‡q G‡mwQj| cvRv †Kvjv K‡i †bIqvi mgq †ivwRbvi Mv‡q Rvgv wQj Z‡e c¨v›U wQj bv| Rvgv‡Z i³ jv‡M wKbv Zv Avwg †`wL bvB& †cvMbvsM w`‡q i³cvZ nq wKbv Zv Avwg †`wL bvB| This witness also stated in his cross examination that on 1.9.98 at night 12:00 PM Rozina regained her sense and then she disclosed that accused Hares forcibly committed rape on her. In cross-examination, he also stated that at the time of lodging the First Information Report he told to daroga that he found the victim with undressed condition under a palm tree. This witness denied the defence suggestion that he deposed falsely.

13. PW-2 Most Rozina Khatun, the victim of the case. She stated in her deposition that on 1.9.1998 at 7:30 PM. Hares came and took net from her mother saying after fishing he will give half share of the fish. This witness also testified that after setting up net for fishing while she was coming back home and then accused Hares forcibly pressing 'Gamcha' into her mouth committed rape on her and for which she got pain and became senseless. This witness also testified that c‡i ivZ 12:00 Uvi w`‡K Avgvi Ávb wdi‡j †`wL Avwg evox‡Z| †K Avgv‡K evwo‡Z †bq Zv Avwg †Ui cvB bvB| Avgvi †hŠbvsM w`‡q i³ †ei n‡qwQj Ges Lye e¨v_v n‡qwQj| evox‡Z Wv³vi Øviv wPwKrmv K‡iwQj| Ávb †divi ci evox‡Z mevB‡K NUbvi K_v e‡jwQj| This witness also testified that on the following morning she was shifted to Naogaon Sadar Hospital for treatment. She also stated that cywjk Avgvi nvd c¨v›U wb‡qwQj| Mv‡q, †c‡U I ey‡K b‡Li `vM e‡mwQj| Avmvgx nv‡im W‡K Dcw¯‘Z Av‡Q| GUvB †m AvMvgx| In cross-examination, she stated that Avmvgx Lvivc KvR Ki‡Z jvM‡Z Avwg evav w`‡j †m Avgvi ey‡K I †c‡U jvw_ gv‡i| cyiyl A½ Xy‡K †M‡j Avwg AÁvb n‡q hvB| She denied the defence suggestion that after being tutored by her grandfather she deposed falsely.

14. PW-3, Md. Shahjahan Bagati stated in his deposition that on hearing alarm of PW-1 Mesheruddin Pramanik, he came forward and saw the victim Rozina was lying in nude condition under a palm tree. This witness also stated that Rozina told him that she was raped by the accused Hares. He identified the accused on dock.

15. PW-4 Most. Masina Bibi, is the mother of the victim Rozina Khatun. She in the line and language gave version of PW-1 in respect of all material particulars. Her examination-in-chief could not be shaken in cross examination by the defence.

16. PW-5, Mst. Sazeda Khatun is the aunt of Rozina. She stated in her testimony that occurrence took place on 1.9.1998 at about 7.30 PM. In the evening Hares and Rozina went for fishing and some time after Md. Shahjahan (PW-3) called, her brother's wife and the her brother's wife called her and accordingly, they went to the palm tree adjacent to the marsh and saw the victim Rozina was lying with undressed condition under a palm tree while they brought Roznia in the house and arranged for treatment. This witness also testified that at night at 10 PM Rozina got back her sense and then, she told, that he accused Hares forcibly committed rape on her.

17. PW-6 Mofiz Uddin in his testimony corroborated the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 in respect of all material particulars. His examination-in-chief could not be shaken in cross examination by the defence.

18. PW-7, Md. Abul Kashem stated in his deposition that police seized a pant of the victim Rozina as alamat and prepared a seizure list in his presence, he proved the seizure list as Ext. 1 and his signature thereon a Ext. 1/1. This witness also proved the material Ext. 1. In cross examination he denied the defence suggestion that he deposed falsely.

19. PW-8 Munsur Ali is also a seizure list witness. He proved the seizure list and his signature thereon as Ext. ½. In cross examination he denied the defence suggestion that he deposed falsely.

20. PW-9, Dr. Mahbub Alam stated in his deposition that he examined the victim Rozina Khatun along with other members of the Medical Board. He testified that during examination they found the marks of injury on the right hand of the victim. This witness also testified that wfKwUg‡K cixv K‡i Zvi †Mvcbvs‡M †dvjv cvB Z‡e †Kvb ïµzby cvIqv hvq bvB| Avgiv †gwWK¨vj †ev‡W© cix¶v Kwi comment : signs of indecent assault are found on her body D‡jL K‡iwQ| He proved the medical examination report as Ext-2 and his signature thereon as Ext-2/1.

21. PW-10, Alauddin in his deposition corroborated the evidence of PW-1, PW-2, PW.-3 ; PW-4, PW-5 and PW-6 in respect of all material particulars. His examination-in-chief could not be shaken in cross examination by the defence.

22. PW-11 Shariful Alam, Sub Inspector of Godagari Police Station is the investigation officer of the case. He stated in his deposition that during investigation he visited the place of occurrence, prepared sketch map along with separate index, examined the witnesses under section 161, CrPC. seized the alamts and obtained the medical examination report of the victim as well as her statement recorded under section 164, CrPC. He also stated that after completion of the investigation he found prima facie case against the accused appellant Hareshuddin Pramanik and submitted charge sheet, vide its No. 178 dated 29.10.1998 under section 6(1) of the Nairi-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995. He proved the sketch map as Ext. 3 and his signature thereon as Ext 3/1, index as Ext. 4 and his signature thereon as Ext. 4/1.

23. In cross-examination he denied the defence suggestion that without having proper investigation he submitted charge sheet against the accused appellant.

24. This is all about the evidence of this case on which the learned Tribunal Judge convicted and sentenced the accused appellant as mentioned above. The question arises, as to whether the prosecution has been able to prove the case by cogent and reliable evidence that the appellant has committed rape on the person of the victim PW-2, Rozina.

25. On assessment of evidence on record, it appears to us that PW-2, Rozina the victim girl herself testified the whole occurrence clearly. She stated in her evidence that on 1.9.1998 at 7.30 PM after catching fish, while she was coming back home the accused Hares shut her mouth with 'Gamcha' and put off her half pant from her body and forcibly committed rape on her in which she got pain and became senseless. In cross examination she stated that Avmvgx Lvivc KvR Ki‡Z jvM‡j Avwg evav w`‡j †m Avgi ey‡K I †c‡U jvw_ gv‡i| cyi"lvsM Xy‡K †M‡j Avwg AÁvb n‡q hvq| These very statement in a natural way by a village girl of 10 years is enough to believe that on that fateful evening she was raped by the appellant. Besides, her evidence on this material particular finds due corroboration of the testimony of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and PW-10, PW-1, Md. Meseruddin Pramanik is the grandfather of the victim Rozina. He stated in his evidence that on 1.9.1998 in the evening he went for catching fish in a nearby marsh and at the time of setting up net he saw accused Hares and her grand daughter Rozina also setting up net for catching fish. This witness also stated that seeing delay in returning back home of her grand daughter Rozina he came forward and saw accused Hares on seeing him fleeing away and then he found his grand daughter Rozina was lying under a palm tree with nude condition while he raised alarm and then the witnesses named Shahajahan, Alauddin Mofiz and victim Rozina's mother rushed there and brought her to their home, wherein Dr. Prodip Dey gave treatment on the person of the victim Rozina. At night 12 p.m. victim Rozina got back her sense and then she disclosed that after setting up net for fishing while she was coming back home and then on the way under a palm tree accused Hares shut her mouth with 'Gamcha' and put off her half pant from her body and forcibly committed rape on her for which shee got pain and became senseless. These material evidences of PW-1 are well corroborated by the PWs namely PW-2, PW-3, PW-4, PW-5, PW-6 and PW-10 in respect of all material particulars.

26. As regards the submission made by the learned Advocate Mr. Tabarak Hossain that the medical board did not detect any sign of rape on the person of the victim Rozina, we have carefully examined the medical examination report as evidenced by Exhibit-2 as well as deposition of PW-9, Dr. Mahbub Alam. In the medical examination report, it appears that Doctors of the medical board opined that "sign of indecent assault are found on her body". PW-9, Dr. Mahbub Alam stated in his evidence that wfKwUg cix¶v K‡i Zvi †Mvcbvs‡M †dvjv cvB Z‡e †Kvb ïµvby cvIqv hvq bvB| Accordingly, the offence as committed by the appellant further finds corroboration from the medical report. Therefore, the grievance of the learned Advocate Mr. Tabarak Hossain does not find any leg to stand up.

27. The case reported in 3 BLC 182, wherein it has been laid down as follows :

"In the facts and circumstances as discussed above, and the contradiction and absence of sign of rape in the medical report and non-examination of wearning clothes made the whole case most doubtful one."

28. The facts of the above cited case, it appears to us has no manner of application in the facts and circumstances of the case, inasmuch as in the present case, we have already indicated that PW-2, Most. Rozina Khatun the victim girl herself vividly narrated the whole occurrence and stated the circumstances clearly and her evidence in respect of all material particulars finds due corroboration from the evidence of all other witnesses and medical examination report of the victim Rozina.

29. It is now well settled that the testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficult in acting on the testimony of a victim of sex crime alone to convict an accused where her testimony inspires confidence and is found to be reliable. Moreover, in this case testimony of the victim girl (PW-2) finds corroboration from the other available evidence on record including medical evidence which found marks of violence on the person of the victim clearly indicating that it is a case of rape.

30. We have carefully gone through the first information report, charge sheet, confessional statement, depositions of witnesses and other materials on record and also given our anxious considerations to the submissions of the learned Advocates of both the sides It appears to us the overwhelming evidence of the PWs. has clearly established that it is accused Md. Hareshuddin Pramanik alias Md. Hares Pramanik, who committed the crime of rape on the victim Rozina Khatun. The learned Judge of the Nari-O-Shishu Nirjatan Daman Bishesh Tribunal has rightly found accused-appellant Md. Hareshuddin Pramanik alias Md. Hares Pramanik guilty of the offence under section 6(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh bidhan) Ain, 1995. Therefore, we do not find any ground to interfere with the judgment passed by the learned Tribunal Judge.

31. In the result, the appeal is dismissed. The impugned judgment and order of conviction and sentence dated 11.9.2001 passed by the learned Judge of the Nari-O-Shishu Nirjatan Daman Bishesh Adalat No. 3, Naogaon in Nari-O-Shishu Nirjatan Case No. 171 of 1998 is hereby affiremd.

32. Let a copy of the judgment along with the Lower Court's record be sent down at once.

Case cited :

3 BCL 182.