Sree Pintoo Pal vs. Respondent: The State

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Criminal Appeal No. 3020 of 2004

Decided On: 22.06.2009

Appellants: Sree Pintoo Pal
Vs.
Respondent: The State

**Hon’ble Judges:**Siddiqur Rahman Miah and Md. Ataur Rahman Khan, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Abdur Razzaque Miah and Nazmul Karim

For Respondents/Defendant: Sakila Rowshan, DAG

Subject: Criminal Law

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Code of Criminal Procedure, 1898 (CrPC) - Section 161; Code of Criminal Procedure, 1898 (CrPC) - Section 342; Evidence Act, 1872 - Section 114(g)

Citing Reference:

Affirmed

 2

Discussed

 2

Case Note:
*In the case of rape the prosecution case must be corroborated in the evidence of independent witnesses or circumstantial evidence.***
*It is a settled principle that in a case of sexual offence there is no legal bar in believing the sole testimony of the prosecutrix if it is found to be reliable and worthy of evidence. But the evidence of the prosecutrix in this case is not found to be reliable and worthy of evidence. In fact, in rape case, the need for corroboration is rule of caution. In other words, the rule as to corroboration is one for the guidance of the courts and is not a rigid rule of law in a case of reliable evidence of the prosecutrix, absence of proof of rape by medical report, non-examination of wearing apparels, absence of scratches and bruises in body of the victim have made case doubtful and the probability of the case is weaken which does not inspire the confidence of the court. The evidence which does not inspire the confidence of the court, it is not safe and wise to convict the accused on such unreliable and doubtful evidence. In the instant case, the learned trial court without appreciating and assessing the evidence on record, convicted the accused persons on mere surmises and conjectures. [42]*
*The prosecution examined only 4 witnesses out of 11 charge sheeted witnesses and the important witnesses like doctor and neighbouring witnesses who rescued the victim were not examined by the prosecution which raises a legal presumption against the prosecution case to the effect that had they been examined, they would not support the prosecution case. If the material witness is deliberately or unfairly kept back, a serious doubt is cast on the propriety of the trial itself and validity of the conviction resulting from it may be open to challenge. We find support of the above view in the case of Alkas Mia vs. State 25 DLR 378. [13]*
*In the case of rape, the prosecution case must be corroborated by the evidence of independent witnesses or circumstantial evidence but here in this case there is no such corroboration and there is no ingredient of section 9(1) of Nari-O-Shishu Nirjatan Daman Ain, 2000. The conviction and sentence is based on misreading and non-reading of evidence on record which has materially affected the merit of the case and as such the impugned judgment and order of conviction and sentence dated 28.07.2004 is illegal, unjust and improper and as such the same is liable to be set aside. [44]***

JUDGMENT

Siddiqur Rahman Miah, J.

1. This Criminal Appeal at the instance of Pintoo Pal under section 28 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 is directed against the judgment and order of conviction and sentence dated 28.07.2004 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Naogaon in Tribunal Case No. 281 of 2002 arising out of Manda police station case No. 19 dated 25.06.2002 corresponding to GR Case No. 130 of 2002 (Manda) convicting the appellant under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him thereunder to suffer rigorous imprisonment for life and to pay a fine of Taka 5000/- in default to suffer rigorous imprisonment for 6 (six) months more. The prosecution story, in brief, is that, on 25.06.2002 at 16.10 hours Chandan Adikari as informant lodged FIR with the Manda police station against the appellant Pintoo Pal alleging inter alia that on 19.06.2002 at 3.00 P.M. her daughter Jhorna Rani aged about 17 years went to the land and all on a sudden the appellant forcibly took her in his dwelling hut and committed rape on her, thereby the informant lodged the instant case.
2. S.I. Moklesur Rahman was entrusted with the task of investigation who after taking the task of investigation, visited the place of occurrence, prepared sketch map of the place of occurrence with separate index thereof, seized alamats through seizure list and recorded the statements of witnesses under section 161 of the Code of criminal Procedure and thereafter he submitted charge sheet being No. 122 dated 25.07.2002 under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
3. The case ultimately came to the Judge, Nari-O-Shishu Nirjatan Daman Tribunal who framed charge against the accused person under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and the charges were read over to him in open court to which the accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 4 (four) witnesses and the defence examined none.
5. After examination of prosecution witnesses, accused was examined under section 342 of the Code of Criminal Procedure to which he repeated his innocence and the defence did not adduce any evidence on his behalf.
6. The defence case, as it transpires from the trend of cross-examination is total denial and his case, inter alia, is that the accused did not bring the victim to his house and raped her; that the victim worked in his house as maid servant and that he has been falsely implicated in this case at the instance of his enemies of the locality.
7. Thereafter on consideration of the evidence on record as well as the facts and circumstances of the case, the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal found the accused Pintoo Pal guilty under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and convicted him thereunder to suffer rigorous imprisonment for life and to pay a fine of taka 5000/- in default to suffer imprisonment for six months more.
8. The accused person being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 has come up with the present appeal which is opposed by the respondent state through learned Deputy Attorney General.
9. Mr. Abdur Razzaque Miah, the learned Advocate for the appellant took us to the FIR, the charge so framed, the deposition of the prosecution witnesses, impugned judgment and the material papers and documents which are available in the paper books and submits that the appellant is quite innocent and he has been falsely implicated in this case. He further submits that the victim used to work in the house of the accused as maid servant; that he did not forcibly bring her to his house and did not rape her and that he has been falsely implicated in this case by the informant at the instance of his enemies.
10. Mr. Abdur Razzaque Miah, further submits that the learned trial court failed to make a critical analysis of the evidence on record in its true and proper perspective and convicted the appellant on conjectures and surmises; that the entire evidence adduced by the PWs being contradictory in the material points does not prove the prosecution case and as such the impugned judgment and order of conviction and sentence is unwarranted in the facts and circumstances of the case.
11. He cited the decisions in the case of Seraj Talukder vs. State reported in 3 BLC 182 and the case of Shan Khan vs. The State reported in 18 DLR (WP) (1966) 91 in support of his contention.
12. Mrs. Sakila Rowshan, the learned Deputy Attorney General for the state, on the other hand submits that judgment and order of conviction and sentence dated 28.07.2004 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Naogaon, was justified in convicting and sentencing the accused appellant on assessing the evidence on record and rightly passed the judgment and order. She further submits that the prosecution has proved its case against the accused appellant by most consistent, corroborative and overwhelming evidence; that the learned Judge was perfectly justified in convicting and sentencing the accused appellant on the basis of the most cogent and reliable evidence and that his judgment does not suffer from any misreading and non-reading of evidence and as such the impugned judgment does not call for any interference by the court.
13. The only point for determination in the appeal is whether the learned Judge was justified in convicting and sentencing accused appellant under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
14. In the face of arguments advanced by the learned Advocates of the contending parties, we are now called upon to scrutinize the material evidence on record to come to a proper decision in this appeal.
15. P.W. 1 Chandan Adikari, deposed that occurrence took place on 19.06.2002 when the accused Pintoo Pal called out his daughter to his house and raped her and that at her cry Bipul, Achinta and Delip went to the place of occurrence and then the accused fled away at their presence.
16. In his cross examination, he admitted that the victim, his daughter, worked in the house of the accused as maid servant from before; that he heard about the occurrence from Santo, Bipul and Jhorna; that he was not present in the house on the date of occurrence and that he lodged ejhar after 6 days of the occurrence.
17. He denied the defence suggestion that he filed the case falsely against the accused at the instant of the enemies of the accused and that no such occurrence took place at all.
18. P.W. 2, Jhorna Rani, is the victim of this case who deposed that on 19.06.2002 at 2.45 P.M., when she went to the garden for grazing duck, then accused Pintoo requested her to go to his house; that after sometime, she went to his house; that thereafter accused Pintoo raped her forcibly against her will; that the accused forbidden her not to tell this matter to any body; that after sometime his brother went there to bring her to house; that the accused told her to go home but she firstly refused to go and thereafter she went home; that after one day she again voluntarily went to the house of the accused and intentionally stayed in his house and thereafter police recovered her from the house of the accused on 24.06.2002 and brought her to police station and sent her for medical examination and thereafter she came home and that Daroga seized her wearing apparels.
19. In the cross examination she stated that the houses of Bhoves, Ranjit and Taser are to west, the houses of Samol, Sunil and Niren are to the east and Madhu’s house is to north of Pintoo’s house who are not witnesses in this case and that after one day she (victim) again went to accused’s house without telling her brother and sister. She denied the defence suggestion that she had intention to marry the accused and that she has falsely implicated the accused at the instance of the enemies of the accused and that no such occurrence took place at all.
20. P.W. 3, Bipul Kumar Adikari, deposed that he heard the matter from Ochinta and Police recovered the victim from the house of accused Pintoo Pal.
21. In the cross examination, he stated that he is the brother of victim; that he got the news that his sister was forcibly taken by the accused Pintoo Pal and getting such news he went to the house of Pintoo Pal and found his sister there; that latter on his sister victim alone returned back home and again she intentionally went to the house of accused Pintoo Pal and stayed his house till her recovery by the police from the said house on 25.06.2002.
22. P.W. 4 SI Moklesur Rahman, deposed that after investigation, he submitted charge sheet against the accused Pintoo Pal.
23. In the cross-examination he stated that he can not show by any paper as to who were present at the time of recovery of the victim and that local Chairman, Member and Choukider were not present at the time of recovery. He denied the defence suggestion that the story of recovery is false and concocted and that being influenced by the interest quarter, he submitted false charge sheet against the accused Pintoo pal.
24. Before convicting and sentencing the appellant under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000, it is to be seen whether he has been committed offence under the said section and whether the prosecution has succeeded in proving the charge against the appellant.
25. Now let us see the provision of the law envisages under section 9(1) of the Ain, 2000.

26. In view of the provision of law and evidence adduced, the points for determination are:

(i) How far the prosecution succeeded in driving home the charge to the doors of convict-appellant beyond any speck of doubt.

(ii) Whether the verdict of conviction and sentence awarded upon convict-appellant can be sustained in law, evidence, materials on record, fact and circumstances of the case and, also, in true dispensation of Criminal Justice.

(iii) Whether the convict-appellant can be liberated of the charge staged against him on bestowing a Ruling of acquittal on finding him not guilty of the charge.

27. The fundamental and basic presumption in the administration of Criminal law and justice delivery system is that the accused should be presumed to be innocent till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence. In a criminal trial, the burden of proving guilt of the accused beyond all reasonable doubt always rests on the prosecution and on its failure, it can not fall back upon the accused. In a Criminal case, it is for the prosecution to bring the guilt home to the accused.
28. In approaching and answering to the points drawn up, cardinal principles of Criminal Jurisprudence in awarding conviction followed by sentence upon an indicted person demands meditation. A legal survey of law, appraisal of evidence, browsing eye on materials brought on record, analysis of facts and circumstances of the case, inherent infirmities, disturbing and striking facets of prosecution case are, also, required to be taken into consideration. Rival contentions put forward from both sides shall also be addressed and considered by us.
29. It is alleged that the accused Pintoo Pal taking the victim Jhorna Rani forcibly from the field to his house and raped her against her will.
30. On the other hand, the defence version is the complete denial and his further case is that no such occurrence took place and he has been falsely implicated in this case out of enmity.
31. It is admitted that the victim Jhorna was a maid servant in the house of the accused Pinto Pal who used to go his house frequently and that accused Pinto Pal is a man of wealth; that the father of the victim had intention to arrange the marriage of her daughter with the accused. It further appears from the evidence on record that with this end in view when the accused declined to marry her, then he has been falsely implicated in this case at the instance of his enemies.
32. The story of taking the victim to the house of the accused is totally false and concocted as the victim herself deposed that she intentionally went to the house of the accused. It is alleged by the victim that after committing rape, she raised hue and cry and on her hue and cry, Bipul, Ochinto and Delip went there and then the accused fled away and thereafter he did not return home.
33. It is further appears from the cross examination of victim P.W. 2 that the house of Bhoves, Ranjit and Tuser are to the west, the houses of Samol, Sunil and Niren are to the east and Modhu’s house is to the north. Hence Ochinto, Delip, Bhoves, Ranjit, Taser, Samol, Sunil, Niren and Modhu are the vital witnesses in this case who were not examined. Non-examination of these witnesses raises a presumption against the prosecution to the effect that had they been examined, they would not have support the prosecution case. The prosecution offers no explanation as to non-examination of these witnesses. It will certainly give rise to presumption under section 114(g) of the evidence Act. Non examination of independent and relevant witnesses goes against the prosecution and creates presumption under section 114(g) of the Evidence Act and creates a doubt upon the prosecution case and it is to be presumed that had they been examined they would not support the prosecution case. It is undoubtedly the duty of the prosecution to lay before the court all material evidence available to it which is necessary for unfolding its case. If withholding of a witness is influenced by an oblique nature, the court may draw an inference against the party withholding it. If a material witness is deliberately or unfairly kept back a serious doubt is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge.
34. It further appears from the evidence of the victim P.W. 2 Jhorna that after occurrence on 19.06.2002 she went to her house and after one day, she again went to the house of the accused and entered into the house of the accused by climbing the paupa tree as the gate of the house was closed and stayed in that house till her recovery by the police. Such evidence of the victim absolutely appears to be improbable, inconsistent and concocted. It is like cock and bull story and thus the story of forceful taking away of the victim by the accused has not been proved at all.
35. Now let us turn to the story of rape of the victim by the accused.
36. There is no eye witness of the occurrence. It is alleged that the wearing apparels of the victim were seized but the same were not chemically examined. The victim was medical examined on 26.06.2002 and the doctor opined that no sign of recent sexual intercourse is detected. Moreover the medical officer has not been examined.
37. In this connection we may profitably refers the decision in the case of Seraj Talukder vs. State reported in 3 BLC 182, “absence of sign of rape in the medical report and non-examination of the wearing cloths made the whole case most doubtful one.”
38. It is also stated in the case of Shan Khan vs. The State reported in 13 DLR (WP)-91, “In the case of rape, according to the Modi’s Medical Jurisprudence, the body specially the face, breasts, chest, lower part of abdomen, limbs and back should have marks of violence such as scratches and bruises as a result of struggle. Such marks are likely to be found on the bodies of grown up women who are able to resist.”
39. It appears that the medical report does not support the commission of rape. Medical report is very important factor which tells on the entire case. In the instant case, the medical report does not support the allegation of rape. Rather other connecting evidence like non-chemical examination of wearing apparels, absence of scratches and bruises in face, breasts, chest, abdomen, limbs and back also does not support the allegation of rape of the victim by the accused.
40. In the instant case, the prosecutrix herself admits that she used to visit the house of the accused person now and then as she was maid servant of the accused. So the question of forcible bringing of victim to the house of the accused does not arise. Victim herself stated that in the following day of the occurrence, the victim entered into the house of the victim by climbing paupa tree as he gate of the house was closed which also proves that the victim is a woman of easy virtue, so her evidence cannot be believed without the corroboration of reliable evidence. We find support of the above view in the case of Daler Sing vs. State 1955 Cr.L.J. 614 wherein their Lordships held that no implicit reliance can be placed on the testimony of the prosecutrix who is a woman of easy virtue. Non-examination of material witness in this case leads to adverse inference.
41. It is a settled principle that in a case of sexual offence there is no legal bar in believing the sole testimony of the prosecutrix if it is found to be reliable and worthy of evidence. But the evidence of the prosecutrix in this case is not found to be reliable and worthy of evidence. In fact, in rape case, the need for corroboration is rule of caution. In other words, the rule as to corroboration is one for the guidance of the courts and is not a rigid rule of law in a case of reliable evidence of the prosecutrix , absence of proof of rape by medical report, non-examination of wearing apparels, absence of scratches and bruises in body of the victim have made case doubtful and the probability of the case is weaken which does not inspire the confidence of the court. The evidence which does not inspire the confidence of the court, it is not safe and wise to convict the accused on such unreliable and doubtful evidence. In the instant case, the learned trial court without appreciating and assessing the evidence on record, convicted the accused persons on mere surmises and conjectures.
42. The prosecution examined only 4 witnesses out of 11 charge sheeted witnesses and the important witnesses like doctor and neighbouring witnesses who rescued the victim were not examined by the prosecution which raises a legal presumption against the prosecution case to the effect that had they been examined, they would not support the prosecution case. If the material witness is deliberately or unfairly kept back, a serious doubt is cast on the propriety of the trial itself and validity of the conviction resulting from it may be open to challenge. We find support of the above view in the case of Alkas Mia vs. State 25 DLR 378.
43. In the case of rape, the prosecution case must be corroborated by the evidence of independent witnesses or circumstantial evidence but here in this case there is no such corroboration and there is no ingredient of section 9(1) of Nari-O-Shishu Nirjatan Daman Ain, 2000. The conviction and sentence is based on misreading and non-reading of evidence on record which has materially affected the merit of the case and as such the impugned judgment and order of conviction and sentence dated 28.07.2004 is illegal, unjust and improper and as such the same is liable to be set aside.
44. In the result, the appeal is allowed and the impugned judgment and order of conviction and sentence dated 28.07.2004 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Naogaon in Tribunal case No. 281 of 2002 is hereby set aside. The appellant Sree Pintoo Pal are found not guilty of the charge levelled against him and he is therefore acquitted therefrom and he be set at liberty forthwith if not wanted in connection with any other case. Send down the L.C.R. with a copy of the judgment at once.