The New Nation - Internet Edition

(From previous issue)

9. The victim never said anything as to illegal intercourse or raised any outrage of offence of rape.

10. PW 2 Bulbul Sikder. Where the marriage was solemnised where the victim herself came to his residence and Rana Sikder asked him to make the arrangement for marriage in between Zitu anq Lipi. Rana and Bakul Laskar brought Huzur on behalf of the Kazi and he became the Ukil in that ceremony and after marriage accused appellant Zitu and victim Lipi stayed in his house from 1-00 PM to 500 PM. On' 2-2-2005 victim Lipi came to him and said that they were not accepting the marriage if Taka 5,00,000 would not be given. In cross-examination, he has stated-

ÔÔ`yR‡bB ewjqvwQjvg Avgvi †Mvc‡b weevn Kwi‡Z PvB| Zvnv‡`i evev gv‡K ewj‡j †h‡nZz †jLv cov Kwi‡Z‡Q wKQyw`b weevn †Mvcb ivLvi K_v e‡j| wRZz ivbv GKB K¬v‡m cwoZ wKbv Rvwbbv| KvRx Bgivi (mve KvRx) †gvovcvov evwo| Kwei †nv‡mb gvngy`vev` MÖv‡g gmwR‡` BgvgwZ K‡i| we‡qi c‡i wRZzi evev gv‡K Rvbvq bvB| `v‡ivMvi Kv‡Q we‡qi 1 ermi c‡i Revbew›` w`qvwQjvg| `v‡ivMvi Kv‡Q ewj bvB †h †g‡q Avgv‡K ewjqvwQj †Q‡j 5 jvL UvKv Pvq| Avgv‡K hLb Rvbvq †h weevn A¯^xKvi Ki‡Z Pvq Znb wjwci gvI wQjÕÕ

11. PW 3 Bakul Laskar who was a witness in the Kabin and stated that they are major and marriage was solemnised in presence of the witnesses by the Kazi and after marriage the victim and the appellant were only in the room.

12. PW 4 Monir Hossain who was a witness of the marriage and stated that the Imam of the mosque solemnised the marriage and in cross-examination, he has admitted that he was a witness in the Kabin on behalf of the victim girl.

13. PW '5 Jamai Miah is the hotel owner who stated that after the marriage between the appellant and the victim girl in another place there was a lunch of 15/20 persons in his hotel. In cross-examination, he stated that the marriage was solemnised in the house of Bulbul Sikder.

14. PW 6 Jahangir Alam in his examinat chief stated that the marriage was solemnised house of Bulbul Sikder and there was marriage presence of Kazi. Kazi was called by Bulbul and he is the brother of the victim and in examination he has stated that

ÔÔAvgvi †evb MÖv‡gi evwo‡Z _vwKZ| cieZ©x‡Z Avwg Rvb‡Z cviwQ Avmvgx wRZz nvmv‡bi mv‡_ Avgvi †ev‡bi †cÖ‡gi m¤úK© wQj| Avgvi †evb‡K ivbv wkK`v‡ii evwo‡Z weevn covBevi mgq Avwg wQjvg bv| eyjeyj wkK`v‡ii evwo‡Z wbqv hvIqvi mgq Avwg wQjvg| we‡qi mgq Avwg Dcw¯’Z wQjvg bv| `v‡ivMvi Kv‡Q Revbew›` w`qvwQ wKš‘ †Kv‡U© Revbew›` †`B bvB| Bnv mZ¨ bq †h, wfKwUg Avgvi †evb nIqvi wg_¨v mv¶x w`qvwQ|ÕÕ

15. In recall, he stated that two joint pictures and four letters were handed over to the police.

16. PW 7 Dr Md Shahjahan Miah, in opinion, stated that age of the victim was 19 years. No sign of sexual intercourse present and mark of violence was absent.

17. PW 8 Rana Sikder stated wjwc‡K wRZz we‡q Ki‡e e‡j mygb Avgv‡K RvbvBqv‡Q| wRZz UvKv cqmv w`‡q KvRx WvwKqv Avwbqv weevn KivBqv w`qv‡Q| and in cross-examination, he stated that marriage was solemnised hy the Kazi of Murapara Union and there '" sweets in that ceremony. "

18. PW 9 Billal Miah, Sub-Inspector of Rupganj Thana, is the Investigating Officer of this case. In cross-examination, he stated that there was no Kazi at the time of marriage in Morapara. But stated that the marriage was registered by a Kazi of Araihazar and he. further stated that there was nothing found adverse with regard to the sexual intercourse nor there was any mention of sexual intercourse in the certificate granted by the doctor.

19. PW 10 Rezaul Karim is the uncle of the victim. He stated that the marriage was solemnised in between the appellant Zitu and victim Lipi Akhter and he has informed the guardian of the victim girl. Both the victim and the appellant Zitu went to his residence and again they went to his residence at Cox's Bazar. And he has stated that if Taka 5,00,000 is not paid his parents will not admit their marriage. He then stated that

†g‡qi evev‡K NUbvUv RvbvB‡j 5 jvL UvKv †hŠZzK bv w`‡j weevn gvwbqv wb‡e bv| In cross-examination, he has stated that weev‡ni 5/6 w`b ci Avgvi evmvq †eovB‡Z hvBqv `yBw`b wQj| c~Yivq 2/3 gvm c‡i †eovB‡Z wMqvwQj| GKw`b wQj| 20-7-2004 Bs Zvwi‡L †kl evi Avgvi evwo‡Z †eovB‡Z wMqvwQj| 2004 mv‡j †g‡qi evevi evwo‡Z †eovB‡Z AvwmqvwQjvg| †Q‡j †g‡qi evwo cvkvcvwk wRZz‡K †dvb KwiqvwQjvg †g‡qi evwo‡Z Avmvi Rb¨ Av‡m bvB|

20. PW 11 Md Kabir Hossain stated that on the instruction of the people he solemnised the marriage. He deposed before the Court that he has solemnised the marriage in between Zitu and Lipi. He has stated in chief eKyj wkK`vimn Ab¨vb¨ ‡jvKR‡bi K_vq Avwg wRZz Ges wjwci weevn covBqvwQ| Ggivb KvRxi KvQ †_‡K Kvwe‡bi ewn wbqv Kvweb bvgv wjwL| In cross-examination, he has stated -Avgvi bv‡gI gvgjv nBqvwQj| †gvovcvov BDwbq‡b weevn covBqvwQjvg| Ggivb †nv‡mb †gvovcvov BDwbq‡bi KvRx| Avt ingvb wgwQi Avjxi †g‡qi weevn †iwRt Kiv nBqvwQj| Ggbvi †nv‡mb‡K wd Gi UvKv w`qvwQjvg| `v‡ivMvi Kv‡Q ewj bvB †h AvovBnvRvi _vbvaxb dLiyj Bmjv‡gi KvQ †_‡K weev‡ni †iwRóv‡ii eB AvwbqvwQjvg| Ggivb †nv‡mb †Kvb KvRx bv| weevn †iwRwói GK nvRvi UvKvi iwk` †bB bvB|

21. From the trend of examination and crossexamination no where it has been stated that there is any resistance or any act of sexual intercourse. There is also no sign of violence as certificate issued by the doctor and all the witnesses categorically stated that there was marriage in between the victim girl and the appellant. Section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain reads as follows:

al©Y, al©YRwbZ Kvi‡Y g„Zz¨, BZ¨vw`i kvw¯-& hw` †Kvb cyi“l †Kvb bvix ev wkï‡K al©Y K‡ib, Zvnv nB‡j wZwb hve¾xeb mkªg Kviv`‡Û `Ûbxq nB‡eb Ges Bnvi AwZwi³ A_©`‡ÛI `ÛYxq nB‡eb|

e¨vL¨v| hw` †Kvb cyiyl weevn eÜb e¨ZxZ †PŠ&Ï erm‡ii AwaK eq‡mi †Kvb bvixi mwnZ Zvnvi m¤§wZ e¨wZ‡i‡K ev fxwZ cÖ`k©b ev cÖZviYvg~jKfv‡e Zvnvi m¤§wZ Av`vq Kwiqv, A_ev †PŠÏ erm‡ii Kg eq‡mi Kg eq‡mi †Kvb bvixi mwnZ Zvnvi m¤§vwZmn ev m¤§wZ e¨wZ‡i‡K †hŠb m½g K‡ib, Zvnv nB‡j wZwb D³ bvix‡K al©Y Kwiqv‡Qb ewjqv MY¨ nB‡eb|

In the facts and circumstances and from the materials on record and evidence, it does not show that the victim was minor, there is no commission of rape upon her forcibly. She did not resist nor tried to resist nor created any obstruction. It is an admitted fact that the victim has visiting terms with the appellant accepting letters and they are known to each other, the marriage was solemnised by a marriage registrar and the victim could not show that the appellant applied any force or any fraudulent activities or showed threat and has committed or there was occurrence of sexual intercourse.

In the absence of any threat or any fraudulent activities the intercourse has been committed on her consent. Therefore, it Jdoes not attract any ingredients or offence under section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain. Prasticing fraud upon her, having intercourse without her consent is very much absent and therefore, we do not find that the Court below could justify itself in convicting and sentencing the appellant in the instant case. It was not a case or rape which the Court below has totally failed to appreciate in the judgment and order, as such, it is liable to be set aside.

22, In the result, this appeal is allowed. The judgment and order of conviction and sentence dated 10-8-2006 passed by the Judge, Nari-o-Shishu Nirjatan Daman Ain, Special Sessions Judge, Narayanganj in Nari-o-Shishu Case No. 113 of 2005 arising out of Rupganj Police Station Case No. 14 dated 6-2-2005 corresponding to GR. No. 58 or 2005 convicting him under section 9(1) or the Nari-o-Shishu Nirjatan Daman Ain, 2000 and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Taka 5,000 in default of which to suffer more six months simple imprisonment is hereby set aside.

23. Appellant Zitu Ahsan alias Apon, son of Md Ayet Ali, of village Gutib Agarpara, Police Station Rupganj, District Narayanganj is found not guilty of the charges leveled agaist him of the said Ain. The appellant be set at liberty at once if not wanted in connection with any other case.

(Concluded)