Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 3453 of 2017

Md. Saddam Sheikh

................Convict-appellant. -Versus-

The State.

.....Respondent. Mr. Md. Abdul Bari, Advocate.

.....For the appellants.

Ms. Shahida Khatoon, D.A.G with

Ms. Sabina Perven, A.A.G with

Ms. Kohenoor Akter, A.A.G.

                  .... For the respondent.

Heard on 14.07.2024, 28.07.2024 and Judgment on 28.07.2024

Sheikh Abdul Awal, J:

This  criminal  appeal  at  the  instance  of  convict appellant,  Md.  Saddam Sheikh is  directed  against the judgment  and  order  of  conviction and  sentence dated 17.10.2016 passed by the learned Additional Sessions Judge, 2nd Court, Faridpur in Sessions Case No. 87 of 2014  arising  out  of  non  G.R  No.  21  of  2012 corresponding to Modhukhali Police Station Non G.R F.I.R No. 21 dated 18.04.2012 convicting the accused-

appellant  under  section  313  of  the  Penal  Code  and sentencing  him  thereunder  to  suffer  rigorous imprisonment for a period of 7(seven) years and to pay a fine of Taka 40,000/- (forty thousand) in default to suffer simple imprisonment for 1 (one) year more.

The  prosecution  case,  in  short,  is  that  on 05.01.2012 one, Most. Beauty Begum  as complainant filed a petition of complainant in the Court of the learned Judicial  Magistrate,  cognizance  Court  No.4,  Faridpur against the accused-appellant and 6 others under section 147/323/307/313/  315/  34  of  the  Penal  Code  stating, inter-alia, that the accused No.1 is husband of the victim complainant  and  other  are  relatives  of  accused  No.1. Before  marriage  accused  No.1  used  to  make  bad proposal to the complainant on the way to school and on 13.09.2011 while complainant was reading in her house the accused No.1 entered into the reading room of the complainant and forcefully raped on her and thereafter, the complainant informed the matter to her father and neighbours and accordingly a shalish took place and as per decision of salish accused No.1 compelled to marry her  on  23.09.2011   according  to  Muslim  law  and thereafter, the complainant started living in the house of accused No.1 as wife and thereafter, at one stage victim became pregnant and thereafter, the accused persons in

collusion with each other tried to miscarriage her but the complainant  denied  to  do  so  resulting  the  accused persons became angry and thereafter the accused No.1 asked the complainant to drink and medicine otherwise they will kill her. Thereafter, accused persons conjointly compelled the victim to drink and medicine as a result of which on 12.12.22011 the abortion  took  place and  thereafter,  on 13.12.2011 the complainant was shifted to Desh clinic hospital for ultra- sonogram  to  confirm  her  abortion.  Thereafter,  the accused  persons  forcefully  driven  the  complainant- victim  out  from  their  house  in  demanding  Taka 1,00,000/- as dowry. In this backdrop after getting initial treatment the victim went to Modhukhali police station for lodging case, while police advised her to file the case in Court.

On receipt of the petition of complaint, the learned Judicial Magistrate sent the petition of complainant to Officer-in-charge, Modhukhali police station for inquiry. After completion on inquiry one, S.I. Bipul Chandra Dey submitted his report against the accused appellant under section 313/315 of the Penal Code being non G.R. F.I.R Case No. 21 dated 18.04.2012 and did not send up other accused in charge sheet.

Against which the complainant-victim filed naraji petition  and  ultimately,  S.I.  Sheikh  Abu  Bakar,  D.B, Faridpur after completion of further inquiry also found prima-facie  case  against  the  accused  Saddam  Sheikh under  section  313/315  of  the  Penal  Code  and  also recommending other accused for discharging from the case.

 Ultimately, the trial was held in absentia against the accused-appellant.

At the trial, the prosecution side has examined as many as 09(nine) witnesses to prove its case, while the defence examined none.

On  conclusion  of  trial,  the  learned  Additional Sessions  Judge,  2nd  Court,  Faridpur  by  the  impugned judgment and order dated 17.10.2016 found the accused- appellant guilty under section 313 of the Penal Code and sentenced  him  thereunder  to  suffer  rigorous imprisonment for a period of 7(seven) years and to pay a fine of Taka 40,000/- (forty thousand) in default to suffer simple imprisonment for 1 (one) year more.

Being  aggrieved  by  the  aforesaid  impugned judgment  and  order  of  conviction and  sentence dated 17.10.2016, the accused-appellant preferred this criminal appeal.  

Mr. Md. Abdul Bari, the learned Advocate for the convict-appellant in the course of argument at the very outset  takes  me  through  the  petition  of  complaint, inquiry  report,  deposition  of  witnesses  and  other materials  on  record  including  the impugned  judgment and order of conviction and sentence dated 17.10.2016 and then submits that in-fact this is a case of no evidence inasmuch as in this case the prosecution side examined in all 9 witnesses out of which none of them testified any word against the accused-appellant connecting with the crime under section 313 of the Penal Code. He adds,  in this case there is nothing on record to suggest that the accused-appellant  without  having  any  consent  of  his wife (complainant  victim)  played  the  main role as to causing miscarriage rather as per petition of complaint and other documents,   who played  the  main  role in causing  miscarriage, they  have  been left  out from 2 (two) back to back police reports.

Ms.  Shahida  Khatoon,  the  learned  Deputy Attorney-General,  on  the  other  hand,  supports  the impugned  judgment  and  order  of  conviction  and sentence dated 17.10.2016, which was according to her just, correct and proper. She submits that in this case all the  witnesses  testified  in  one  voice  that  the  accused appellant  without  having  any  consent  of  the  victim

complainant compelled her to miscarriage thus,  the learned  trial  Court  below  rightly  found  the  accused- appellant guilty of the offence under section 313 of the Penal Code.

Having heard the learned Advocate for the convict- appellant and the learned Deputy Attorney General and having gone  through  the  materials  on  record,  the  only question that calls for our consideration in this appeal is whether the trial Court committed any error in finding the accused- appellant guilty of the offence under  section 313 of the Penal Code.

On  scrutiny  of  the  record,  it  appears  that  on 05.01.2012  the  complainant  filed  a  petition  of complainant  in  the  Court  of  the  learned  Judicial Magistrate, cognizance Court No.4, Faridpur against the accused-appellant  and  6  others  under  section 147/323/307/313/  315/  34  of  the  Penal  Code  stating, inter-alia, her husband accused, Md. Saddam Sheikh in collusion with other accused without having her consent forcefully entering and medicine from her mouth  causing  miscarriage.  It  further  appears  that  on receipt of the petition of complaint the learned Judicial Magistrate sent it to O.C. of local police station  for submitting inquiry report and accordingly, one S.I. Bipul Chandra after completion of investigation submitted a

report  against  the  accused-appellant  under  section 313/315 of the Penal Code and did not send up others in the police report and thereafter, the complainant filed a naraji petition and on that naraji petition one, S.I. Sheikh Abu Bakar, D.B, Faridpur after completion of inquiry also  submitted  a  report  adopting earlier  report  and ultimately  trial  was  held  in  absentia  in  the  Court Additional  Sessions  Judge,  Foridpur  During  trial  the  prosecution  side  examined  in  all  9  witnesses  out  of which PW-1, Md. Abul Hossain, father of the victim- complainant stated in his deposition that- “

Medical

certificate ”  This  witness  was  not  cross-examined  as  the

accused  appellant  was  absconding.  PW-2,  Beauty

Begum, complainant and victim of the case, who stated

in her deposition that she got married in 2011 and soon

thereafter became pregnant. This witness also stated that-

“

”. PW-3, 4, 5, 6, 7 all these witnesses in their respective evidence stated  that  the  accused-appellant  committing miscarriage  of  the  victim  by  compelling  to take medicine.  PW-8,  Doctor  Shirin  Akter  stated  in  her deposition  that-  “

profuse  virginal  bleeding Dilatation  evacuation  and

curettage  (DE&C) Medical certificate

certificate

”. This witness was not cross-examined  as  the  accused  appellant  was absconding.

PW-9,  S.I.  Bipul  Chandra  Dey  investigated  the case.  This  witness  stated  in  his  evidence  that  during investigation  he  examined  the  witnesses  and  obtained medical certificate and after completion of investigation he found prima-facie case against the accused-appellant.

On scrutiny of the above quoted evidence together with  the  petition  of  complaint,  medical  certificates, inquiry  report,  it  appears  that  none  of  the  witnesses testified  any  specific  allegation  against  the  accused- appellant that the accused-appellant without having any consent of the victim-complainant causing miscarriage of the complainant-victim, medical certificate also does not reflect that the accused persons forcefully causing miscarriage of the victim.

In view of the attending facts and circumstances of the case and the evidence on record, I am constrained to hold that the prosecution has failed to prove the charge under section 313 of the Penal Code against accused- appellant  beyond  any  reasonable  doubts.  The  learned Additional Sessions Judge, 2nd Court, Faridpur has failed to evaluate the evidence on record from a correct angle thereby reaching a wrong decision that the accused- appellant guilty of the offence under section 313 of the Penal Code, which occasioned a miscarriage of justice. In the facts and evidence on record the trial Court ought

to  have  acquitted  the  accused  by  giving the benefit of doubt. Consequently the appeal succeeds.

In the result, the appeal is allowed. The impugned judgment  and  order  of  conviction and  sentence dated 17.04.2018 passed by the learned Additional Sessions Judge, 2nd Court, Faridpur in Sessions Case No. 87 of 2014  arising  out  of  Non  G.R  No.  21  of  2012 corresponding to Modhukhali Police Station non F.I.R. Case No. 11 dated 18.04.2012 convicting the accused- appellant under section 313 of the Penal Code is set- aside.

Convict  appellant,  Md.  Saddam  Sheikh  is discharged from his bail bond.

Send down the lower Court records at once.