Sentence on rape charge sans evidence unsafe

High Court Division (Criminal Appellate Jurisdiction) Salma Masud Chowdhury J Md Abdul Hafiz J Abdul Latif alias Kahinur alias Kahin and other. ………Appellants vs State ………….. ………..Respondents* Judgment October 6th, 2009. Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain (XVIII of 1995) Sections 6(3) In a case with an allegation of rape, where there is no independent eye witness and the only evidence is that of the prosecutrix herself and of' those to whom it was reported, the Courts are not left with any objective test for gauging the truth of the story of the prosecutrix. In a case of this kind, it is very necessary that before finding the accused persons guilty of rape, the Court should be satisfied that the story of rape by the victim, the woman, is corroborated either by circumstantial evidence connecting the accused persons with the crime, or at least by some circumstance connected with the woman which would serve by itself to show that her story of rape is true. In the present case nothing like this is available. Moreover, she herself stated before the Court that at the time of rape she was unconscious. If she became unconscious before the commission of the offence on her it is not possible on her part to see or know as to who committed the offence of rape on her. It will be unsafe to convict the appellants in the absence of any credible evidence against them in the present case. Allegation against the accused appellants could not be proved beyond reasonable doubt. ... (28, 30 & 32) Md Omar Ali Khan with Md Humayun Kabir, Advocates-For the Appellant Nos. 1 & 3. Dr Md Eunus Ali Akond, Advocate-For the Appellants No.2. Md Khasruzzaman, Deputy Attorney-General with Yesmin Begum Bithi, Assistant Attorney-General with Shahida Khatoon, Assistant Attorney-General and Shafiqul Islam Siddique, Assistant Attorney-General For the Respondent. Judgment Salma Masud Chowdhury J : This appeal is directed against the judgment and order dated 17-6-2002 passed by the Nari-o-Shishu Nirjatan Daman, Bishesh Adalat No.3, Naogaon in Nari-o-Shishu Case No. 16 of 1998 convicting the appellants under section 6(3) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentencing them to suffer imprisonment for life. 2. The prosecution case in short is that informant Kanchoni Bala in order to recover her loan money from a co-villager went to their house and while returning from there she was surrounded by the accused persons who took her away to a nearby place and raped her. I When she became unconscious, the accused persons left her and subsequently on regaining consciousness she went to the house of one Shah Sarder and the accused persons chased her but could not reach her and thereafter she disclosed the incident to Shah Sardar and spent the night at his house on caring the cloths of his wife and on the following morning she went back to her house and disclosed the incident to her brother and others and a village salish was held in which the accused persons did not appear and hence the petition of complaint was filed which was sent to the local police station to treat it as first information report. 3. The police thereafter investigated the case and submitted charge sheet against the accused persons under section 6(3) of the Nario-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995. 4. The case was transferred to the Court of the Nari-o-Shishu Nirjatan Daman, Bishesh Adalat for holding trial. 5. Prosecution examined 15 witnesses and the defence examined none. 6. The defence case is that the accused persons are innocent and they have been falsely implicated in the case. 7. On conclusion of the trial, the trial Court convicted the accused persons under section 6(3) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentenced them to suffer imprisonment for life. 8. Being aggrieved thereby, the appellants preferred appeal before this Court which was admitted for disposal. 9. Mr Md Omar Ali Khan appearing with Dr Md Eunus Ali Akond, on behalf of appellants submits that the appellants were falsely implicated in the case out of previous grudge and enmity. They further submit that the informant is a lady of questionable character and she was involved in selling drugs and led an immoral life for which the accused persons lodged complaint against her and being furious for that, the informant instituted this false case against the accused persons. The learned Advocates next submit that the informant Kanchoni Bala made out a different story while deposing before the Court as PW 1 from what she stated in the first information report and she categorically stated as PW 1 that she was unconscious when she was raped by the accused persons which shows that PW 1, the informant, herself did not know as to who committed rape on her. The learned Advocate further submit that there is no eye witness of the occurrence except the informant and most of the witnesses are hearsay witnesses who did not see the alleged occurrence and some of the vital witness like PW 2, 4, 6, 7 and 11 were declared hostile by the prosecution. The learned Advocates point out that it is a general principle that the solitary evidence of the prosecutrix is not accepted as sufficient and required corroboration by independent evidence in order to be believed but in the present case, the informant being the sole eye witness stated before the Court that she was unconscious when she was being raped and thus the allegation that she was raped by the accused appellants was not proved and trial Court convicted the accused persons merely on surmise and conjectures without any legal evidence. 10. Mr Md Khasruzzaman, the learned Deputy Attorney General appearing on behalf of the State admits that in the present case the conviction is based on the evidence of a solitary witness, that is PW 1 who claims to be the victim of the occurrence although she herself admitted before the Court, while being examined as

20 June, 2013 Thursday

Sentence on rape charge sans evidence unsafe