IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION (CRIMINAL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Shohrowardi

Criminal Revision No.668 of 2007 Abdus Satter Sardar  

           …….Convict Petitioner -versus-

The state and another

…….Opposite Party  

Mr. Sarwar Ahmed, Advocate  

…. For the convict petitioner

      ……For the opposite party

Mr. S.M. Golam Mostofa, DAG with Mr. Md. A. Mannan, AAG

….For the Opposite party Heard on 22.02.2024, 29.02.2024

     Judgment delivered on 06.03.2024.

This Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and order dated 18.04.2007 passed  by  Additional  Sessions  Judge,  Court  No.  2,  Satkhira  in Criminal Appeal No. 22 of 1996 affirming those dated 10.02.1996 passed by the Magistrate, First Class, Satkhira in C.R No. 103 of 1993(Tala), TR No. 49 of 1995 convicting the petitioner under section 4 of the Dowry Prohibition Act, 1980 and sentencing him thereunder to suffer rigorous imprisonment for one year.

The prosecution case, in short, is that the accused Abdus Sattar Sardar  and  complainant   Most.  Jahanara  Akter  @  Shiuli  were previously known to each other. The accused had given a proposal to the complainant Jahanara Akther @ Shiuli for co-habitation but she refused. The accused having touched the Holy Quran on 07.04.1992 expressed his desire to marry her and both of them touching Holly Quran told that the marriage had been solemnized. The accused said that from now he is the legally married husband of Most. Jahanara Akter.  Subsequently,  the  accused  married  the  victim  on  3.6.1993 fixing the dower at Tk. 10,000. Since then they have been enjoying their conjugal life. At one point in time, the accused in connivance with accused Nos. 2 and 3 demanded Tk. 40,000 as dowry to purchase a motorcycle but she refused to pay the dowry which the accused used to torture her mentally and physically. He forced her to leave the house of her husband on 03.06.1996 due to nonpayment of dowry and she informed the matter to her parents. After that, the accused persons came to the house of the father of the complainant on 18.06.1993 at 4/4.30pm but on that day they also demanded Tk. 40,000 as dowry to purchase  a  motorcycle  and  informed  that  if  they  do  not  pay  Tk. 40,000 as dowry the accused persons will not take her to their house. Thereafter,  the  complainant  filed  the  complaint  petition  on 20.06.1993.

After  filing  the  complaint  petition,  the  complainant  was examined under section 200 of the Code of Criminal Procedure, 1898 and the learned Magistrate by order dated 20.06.1993 took cognizance of the offence under section 3/4 of the Dowry Prohibition Act, 1980. Thereafter, the case record was transmitted to the Court of Magistrate, First Class, Satkhira. On 05.08.1993 charge was framed against the accused  under  section  4  of  the  Dowry  Prohibition  Act,  1980  on 05.09.1993 which was read over and explained to the accused and he pleaded not guilty to the charge and claimed to be tried following the law.

During the trial, the prosecution examined 5 (five) witnesses to prove  the  charge  against  the  accused.  After  examination  of  the prosecution witnesses, the accused was examined under section 342 of the Code of Criminal Procedure, 1898 and the defence examined one  DW.  After  concluding  the  trial,  the  learned  Magistrate,  First Class, Satkhira by judgment and order dated 10.02.1996 convicted the accused under section 4 of the Dowry  Prohibition  Act, 1980 and sentenced him thereunder to suffer rigorous imprisonment for one year. Against the said judgment and order of conviction and sentence, the accused preferred Criminal Appeal No. 22 of 1996 before the Sessions  Judge,  Satkhira  which  was  transferred  to  the  Additional Sessions Judge, Court No. 2, Satkhira. After hearing, the appellate court by impugned judgment and order affirmed the judgment and order of conviction and sentence passed by the trial court against which the convict petitioner obtained the Rule.

P.W. 1 Most. Jahanara Akter @ Shiuli is the complainant and wife of the accused Abdus Satter Sardar. She stated that accused Abdus  Satter  married  her  on  11.11.1992  and  they  enjoyed  their conjugal life. Subsequently, the accused demanded a dowry of Tk. 40,000. Since she refused to pay the dowry, the accused Abdus Satter Sardar compelled her to leave the house of her husband. She informed the matter to the local Member of Parliament through a registered post. Thereafter he attempted to compromise between them and they again enjoyed their conjugal life with the accused for two and half months. On 03.06.1993 accused demanded dowry and compelled her to leave his house. When she refused to pay the dowry, the accused persons  came  to  the  house  of  the  father  of  the  complainant  on 18.06.1993  at  4/4.30  pm  and  again  the  accused  and  his  brother demanded Tk. 40,000 as dowry. She affirmed that the accused Abdus Satter is a Moulana. She proved the complaint petition as exhibit-1 and her signature as exhibit-1/1. During cross-examination, she stated that her sister Chompa also filed a case under the Dowry Prohibition Act against her husband and the accused was acquitted. Her uncles were not present at the time of their marriage. The marriage was solemnized  at  Keshobpur.  At  the  time  of  shalish  Tk.  40,000  was demanded. At that time Samsur Rahaman was present in the meeting. He was also present at the time of the marriage. On 21.10.1992 in the presence of the Chairman, the dowry was demanded and at that time, the marriage was not solemnized. A shalish took place at Tikapara School.  Lastly  on  18.06.1993  accused  demanded  dowry  from  the brother of the victim and her mother  was also present there. The shalish took place for about half an hour on 18.06.1993. The house of her husband is situated 10 miles away from the house of her father. After two days of demanding dowry, she filed the case. Before filing the case, she filed the case with the local Chairman. She denied the suggestion that on 18.06.1993 the accused did not demand any dowry and  no  shalish  took  place  and  that  the  accused  divorced  her  on 02.07.1994.

P.W.2 Mobarak Ali is the brother of  the  complainant.  The accused  Abdus  Satter,  Rezaul  and  Kuddus  are  his  nephews.  The marriage was solemnized on 27th Kartik, 1399 between the accused and complainant. They enjoyed their conjugal life. After a few days, the  accused  demanded  Tk.  40,000.  When  she  refused  to  pay  the dowry, the accused compelled her to leave his house. She made the allegation to the local Member of Parliament and thereafter she was taken to the house of her husband. After a few days, on 20th Joistha the accused demanded Tk. 40,000 to buy a motorcycle failing which he refused to live along with the complainant. On 4th Ashar at 4/4.30 pm accused came to the house of his father and again demanded a dowry of Tk. 40,000 failing which he refused to take the victim. The marriage was solemnized at the house of the local Member of the Parliament at Keshobpur. Before marriage, a shalish took place at the house of the Chairman. At that time, the accused demanded a dowry of Tk. 40,000. He denied the suggestion that he deposed falsely.

P.W. 3 Soleman Sarder stated that accused Abdus Sattar is the husband of the complainant. About 3 (three) years ago, they married and after marriage, they enjoyed their conjugal life. Subsequently, the accused demanded a dowry of Tk. 40,000 to purchase a motorcycle. Since the complainant did not pay Tk. 40,000, he compelled her to leave his house. The local MP made a compromise between them. After enjoying their conjugal life for two months, on 20th Jaistha the accused again compelled her to leave his house for dowry of 40000. On 4th Ashar, at 4/4.30 pm accused persons came to the house of the father of the victim. The accused persons demanded a dowry of Tk. 40,000 to purchase a motorcycle failing which they refused to take the victim.   During  cross-examination,  he  affirmed  that  lastly  on  4th Jaistha she was beaten. On the last day, the witness Mobarak called him to the house of the father of the victim. More than two years ago in  the  house  of  Seraj  Sardar  sitting  on  the  cot,  the  dowry  was demanded. He was sitting on the bench in the house. The complainant and the accused were sitting in the same room. Kaiem Ali and Abdus Sattar, cousins of the accused, were also present there. He denied the suggestion that the accused did not demand dowry and he deposed falsely.

P.W. 4 Abdus Samad stated that accused Abdus Satter is the husband of Jahanara. On 18.06.1993 he went to the house of the accused persons at 4/4.30 pm and they came to the house of the father of the complainant and demanded Tk. 40000 as dowry to purchase a

motorcycle failing which they refused to take the complainant. At that time,  the  witness  Kaiem  Ali  accompanied  him.  During  cross- examination, he stated that on 28.08.1995 he was deposed in court in a case filed by the brother of the complainant. He was not present at the  time  of  the  marriage  of  the  complainant.  At  the  time  of occurrence,  8/10 people were present  there.  Solman and Mobarak were also present there and the accused Abdus Satter sitting on the cot in the house of the accused demanded dowry at 10.00 am He brought the accused persons along with him. At that time, Kaiem Ali was also present along with them. He denied the suggestion that the accused persons did not demand any dowry and he deposed falsely.

P.W. 5 Kaiem Ali Sheikh stated that accused Abdus Satter is the husband of the complainant and the accused Reduan and Quddus are brothers of accused Abdus Satter. On 18.06.1993 at 4/4.30pm, the occurrence took place at the house of the father of the complainant. On  that  day  they  were  present  at  the  house  of  the  father  of  the complainant. The accused Abdus Satter demanded a motorcycle or Tk. 40,000 as dowry. He along with Abdus Satter went to their house to bring them. During cross-examination, he stated that he was an HSC examinee and they went to the house of Satter. At the time of occurrence, Ashraf Ali was present. The complainant and her father instructed him to call the accused persons at 4/4.30pm. He came back to the house of the father of the victim. He denied the suggestion that the accused persons did not demand dowry and he deposed falsely.

D.W.  1  Samsur  Rahman  is  the  Chairman  of  No.  4, Biddhanandankathi Union Parishad. He stated that the accused and the complainant were known to him. On 18.06.1992 or any date, the accused did not demand any dowry in his presence. Subsequently, he came to know that he was cited as a witness in the case. Before marriage,  the  accused  did  not  demand  any  dowry.  During  cross- examination, he stated that on 21.10.1990 a shalish took place in his presence and an agreement was executed between the accused and the complainant. He proved the agreement as material exhibit 1. He also affirmed  that  before  marriage  he  made  attempt  to  compromise between them. The accused did not demand any motorcycle. In the shalish  it  was  decided  that  a  motorcycle  would  be  given  to  the accused. He stated that in the shalish the accused was not present, but subsequently  stated  that  all  were  present  there.  The  accused  is  a resident of his Union and the complainant is a resident of another Union.  He  denied  the  suggestion  that  the  accused  demanded  Tk. 40000 as dowery.

The learned Advocate Mr. Sarwar Ahmed appearing on behalf of  the  convict  petitioner  submits  that  the  marriage  between  the accused  and  the  complainant  was  solemnized  under  compelling circumstances and after the marriage, miss-understanding developed between the husband and wife and consequently, the accused divorced his wife on 02.07.1994 and the witnesses examined by the prosecution are the members of the family of the complainant. He also submits that the Chairman of No. 4 Biddhanandankathi Union was cited as a witness in the complaint petition but the prosecution with-held him and he was examined as D.W. 1 who stated that the accused did not demand any dowry to the complainant or her father. He lastly submits that the prosecution failed to prove the charge under section 4 of the Dowry  Prohibition  Act,  1980  by  adducing  neutral  and  reliable witnesses  and  the  courts  below  failed  to  assess  and  evaluate  the evidence properly and illegally passed the impugned judgment and order. Therefore, he prayed to make the Rule absolute.

No one appears on behalf of the complainant.

I have considered the submission of the learned Advocate Mr. Sarwar  Ahmed  who  appeared  on  behalf  of  the  convict  petitioner, perused the evidence, the impugned judgments and orders passed by the courts below and the records.

On perusal of the judgment and order passed by the trial court, it appears that the trial court convicted the accused holding that the marriage was solemnized between the accused and complainant on 11.11.1992 and on 03.06.1993 the accused demanded Tk. 40,000 as dowry and when she refused to pay the dowry, the accused compelled her to leave his house and subsequently on 18.06.1993 at 4/4.30pm, the accused again demanded the dowry of Tk. 40,000. The above evidence of P.W. 1 as regards the demand of dowry of Tk. 40,000 to purchase a motorcycle is also corroborated by P.Ws. 2 to 5.

P.W. 1 is the complainant, P.W. 2 is the brother of P.W. 1, P.W. 3 Soleman Sardar is the nephew of the complainant, P.W. 4 Abdus Samad and P.W. 5 Kaiem Ali Sheikh is the neighbour of the complainant. D.W. 1  Shamsur Rahman is the Chairman of No. 4 Biddhanandankathi Union Parishad and the accused Abdus Satter is a resident of the said Union. The complainant cited D.W 1 Samsur Rahman  as  a  witness  in  the  complaint  petition  but  he  was  not examined as P.W. The defence examined Samsur Rahman as D.W 1. He stated that accused did not demand any dowry in his presence or any  time  but  during  cross-examination,  he  affirmed  that  before marriage on 21.10.1992 in a shalish (exhibit-1) a shalishnama was executed between the accused and the complainant party and in that shalish it has been written that a motorcycle will be given to the accused and he also affirmed that the accused was also present in that shalish. From the evidence of D.W. 1, it transpires that before the marriage there was a demand for a motorcycle by the accused.

The evidence of witnesses examination by both parties depicts that before marriage there was a demand of Tk. 40,000/- as dowry to the complainant by the convict petitioner to purchase a motorcycle and  the  marriage  was  solemnized  between  the  accused  and  the complainant  on  11.11.1992  at  the  house  of  the  local  Member  of Parliament. Subsequently, on 03.6.1993 the accused demanded Tk. 40,000 as dowry to purchase a motorcycle and lastly on 18.06.1993 accused in the presence of P.Ws. 2 to 5 demanded dowry of Tk. 40,000 to purchase a motorcycle to enjoy conjugal life with his wife. The  convict  petitioner  failed  to  prove  the  defence  case  that  he divorced his wife (P.W. 1) on 02.07.1994. At the time of demand of dowry of Tk. 40,000 on 18.06.1993 by the convict petitioner to P.W. 1, their marital tie was subsisting. Therefore, the demand of dowry by the accused to the complainant P W 1 is proved beyond all reasonable doubt.

I  am  of  the  view  that  both  the  courts  below  on  proper assessment and evaluation of the evidence of both the parties arrived at concurrent findings of facts regarding the demand of dowry by the convict petitioner to the complainant P W . 1 and legally passed the impugned judgments and orders of conviction and sentence.

Considering the evidence, facts and circumstances of the case and the gravity of the offence, I am of the view that the ends of justice would be best served if the sentence passed by the courts below is modified as under;

The accused is found guilty of the offence under Section 4 of the  Dowry  Prohibition  Act,  1980  and  he  is  sentenced  to  suffer rigorous imprisonment for 06(six) months.

Because of the above observation, findings and reasoning the Rule is disposed of with modification of the sentence.

Send down the lower Court’s records at once.