May 22, 2013 | 04:29 PM (BD Time)
22 May, 2013 Wednesday
Valid reasons for drawing an inference of guilt
High Court Division
(Criminal Appellate Jurisdiction)
M Rezaul Hasan J
Ayub Ali Sheikh alias Buna
October 11th, 2010.
Evidence Act (1 of 1872)
Abscondence--Absconsion of the accused in certain cases can be vital circumstantial evidence, but it does not necessarily justify drawing an inference of guilt of the accused in each and every case.
State of Himachal Pradesh vs Premsing, 2009 CrLJ (SC) 786; Sheikh Zakir vs State of Bihar, AIR 1983 (SC) 911, Al-Amin vs State 5 1 DLR 154 ref.
Alhaj ASM Nurul Islam, Senior Advocate with Md Giasuddin Ahmed and Elida Yeasmin, Advocates - For the Appellants.
Md Mosharraf Hossain Sarder, Deputy Attorney General with Yesmin Begum Sithi, Assistant Attorney-General - For the Respondent.
MR Hasan J : This appeal under section 28 or Nari-o-Shishu Nirjatan Daman Ain, 2000 (Ain) has been preferred by the Convict-Appellant namely Mr Ayub Ali Sheikh @ Buna, challenging the legality and propriety of the judgment and order dated 18-2-2008 passed by the learned Judge Nari-o-Shishu Nirjatan Daman Tribunal, Rajbari in the Nari-o-Shishu Case No. 336 of 2004, convicting the appellant under section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2003 and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Taka 10,000 in default to suffer rigorous imprisonment for 6(six) months more.
2. The prosecution case, in short, is that one Mosammat farida Khatun wife of Md Tota Miah or village Pabna, PS District-Rajbari lodged a First Information Report (FIR) with Rajbari Police Station, on 29-8-2004, alleging that on 14-8-2004 at about 5-00 PM, her daughter Mosammat Lipi, aged about 6 years, while playing with Reshma, Misti and Khushi of the same age, the accused called her daughter saying that he would give her sugarcane. By saying that, the accused took her daughter in a nearby sugar-cane field and rapped her; thereafter her daughter returned back with bleeding from her genital organ and had narrated the story. On the next day her daughter was treated by Dr. Khaleda Further prosecution case is that, the local people tried to settle the matter but no settlement could be arrived at, hence the delay in lodging FIR.
3. That, thereafter, the police duly investigated into the case, and having found a prima facie case against the accused, has submitted charge sheet, number 187 on 21-11-2004, under Section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain against the convict-appellant.
4. Thereafter the case being ready for trial, It was sent to the Nari-o-Shishu Nirjatan Daman Tribunal, Rajbari (the Tribunal), wherein it has been registered as Nari-o-Shishu Case No. 336 of 2004.
5. In the said case the learned Tribunal framed charge against the convict-appellant under section 9(1) of the Ain, by order dated 17-8-2005. However since the accused was absconded the charge could not be explained to him at that time. Later on, when he has surrendered before the Court, the Tribunal explained the charge to the accused and the accused pleaded not guilty.
6. To prove its case the prosecution examined 10 witnesses, but the defence examined none. However, from the trend of the cross-examination, the defence case appears to be that the convict has been falsely implicated in this case out of enmity because of imposing fine of Taka 500 upon the informant party in a Salish; that the victim was tutored, that victim's father did not file the FIR against the accused since the case was false. Their further case is that, the Medical Report does not support the prosecution case and the PW. 6, who accompanied the victim, did not support the prosecution case. As such the prosecution has failed to prove its case beyond reasonable doubt and the convict is entitled to get benefit thereof and to be acquitted from the charges.
7. After close of the prosecution witness, the Tribunal examined the accused under section 342 of the Code of Criminal Procedure (the Code), when all the incriminating circumstances were brought to his notice. However, when enquired by the Court as to whether the accused would plead guilty, the accused replied in the negative. He has also refused to adduce any evidence in support of his defence.
8. The learned Tribunal after hearing the parties represented by their respective lawyers and having assessed the evidence on record, have found the accused guilty of the charges brought against him and accordingly convicted him under section 9(1) of the Ain and sentenced him as stated above.
9. Mr Alhaj ABM Nurul Islam, Senior Advocate with Mr Md Giasuddin Ahmed and Mrs Elida Yeasmin,. Advocates appearing for the convict appellant, after placing the memo of appeal, evidence and other materials on record, firstly submits that there was delay of 12 days in filing the FIR. He next submits that the FIR was not lodged by the father of the victim who in his deposition, stated then he has father of the victim who in his deposition, stated that he has come to know about the incident from his wife after four days. As such it was natural, had the allegation been a true one, for the father to lodge the FIR. He then submits that, as admitted by PW 1, there was a salish following a dispute between the parties and at that salish the information party was fined Taka 500, awarded in favour of the convict, and, as such, out of that enmity they have falsely implicated the convict accused in this case. He also submits that, the victims being a minor girl of six years it as inherently improbable to commit rape on her and that her deposition and the statement made before the Magistrate was nothing but her version tuto
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