Present

Mr. Justice Sheikh Abdul Awal

Criminal Appeal No. 4380 of 2018

Md. Liton

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

The State.

.....Respondent. Ms. Mst. Ismath Ara, Advocate

.....For the appellant.

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 27.02.2024 and Judgment on 29.02.2024.

Sheikh Abdul Awal, J:

This criminal appeal at the instance of convict appellant, Md. Liton is directed against the judgment and order of conviction and sentence dated 11.02.2018 passed by the learned Judge, Shishu Adalat, Chapainawabgonj in Shishu Case No. 11 of 2016 arising out of G.R No. 65 of 2015 (Nachol) corresponding to Nachol Police Station Case No. 05 dated 04.09.2015 convicting the accused-appellant under section 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain,

2000  (as  amended  in  2003)  and  sentencing  him thereunder to suffer rigorous imprisonment for a period of 5(five) years and to pay a fine of Taka 10,000/- (ten thousand) in default to suffer simple imprisonment for 3 (three) months more.

The  prosecution  case,  in  brief,  is  that  on 04.09.2015 at 20:05 hours one, Durul Huda as informant lodged an Ejahar with Nachol police station against the accused-appellant under section 9(4)(Kha) of the Nari- O-Shishu Nirjatan Daman Ain, 2000 alleging, inter-alia, that  his  daughter  Mst.  Kulsum  Khatun  aged  about  7 years is a student of class 1 of Ujirpur Primary School. On 04.09.2015 at 11:05 a.m. while she went to collect

and then the accused Md. Liton of that area brought

the victim Kulsum Khatun forcibly in a toilet and opened her dress and thereafter tried to rape on her while the

victim  raised  hue  and  cry  and  on  hearing  the  same  witnesses  namely,  Most.  Somija  Begum,  Md.  Salam, Md. Saibur Master came there and rescued his daughter (victim) from the accused while the exited people in the local  area   caught  hold  of  the  accused-appellant  and beaten him. In this backdrop, the informant talked with his relatives and lodged the case.

Upon  the  aforesaid  First  Information  Report, Nachol  Police  Station  Case  No.  05  dated  04.09.2015 under section 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 was started against the accused- appellant.

On receipt of the F.I.R. police started investigation and during investigation visited the place of occurrence, prepared sketch-map, examined the witnesses under section 161 of the Code of Criminal Procedure, forwarded the victim to the learned Magistrate for recording her statement under section 22 of the Nari-O- Shishu Nirjatan Daman Ain and accordingly victim made statement to the Magistrate stating that the accused tried to rape on her forcefully and after completion of investigation police  found a prima facie case  and submitted charge sheet being charge sheet No. 83 dated 09.11.2015 under section 9(4)(Kha) of the Nari-O- Shishu Nirjatan Daman Ain, 2000 (as amended in 2003) against the accused appellant.

Thereafter, the case record was sent before the learned Nari-O-Shishu Nirjatan Daman Tribunal-1, Chapainawabgonj, wherein it was registered as Nari-O- Shishu Case No. 23 of 2016. Thereafter, the case record was sent to Shishu Adalat, Chapainawabgon for disposal wherein the case was renumbered as Shishu Case No. 11 of 2016. Ultimately, the accused-appellant was put on trial to answer a charge under section 9(4)(Kha) of the

Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003) before the learned Judge, Shishu Adalat, Chapainawabgonj to which the accused-appellant pleaded not guilty and prayed to be tried stating that he has been falsely implicated in this case out of previous enmity with the informant party.

At the trial, the prosecution has examined as many as 7 (seven) witnesses to prove its case, while the defence examined none.

The defence case, from the trend of cross- examination of the prosecution witnesses and examination of the accused-appellant under section 342 of the Code of Criminal Procedure appeared to be that the accused-appellant was innocent and he has been falsely implicated in the case out of previous enmity with the informant party.

On conclusion of trial, the learned Judge, Shishu Adalat by the impugned judgment and order dated 11.02.2018 found the accused-appellant guilty under section 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003) and sentenced  him thereunder to suffer rigorous imprisonment for a period of 5(five) years and also to pay a fine of Taka 10,000/- (ten thousand) in default to suffer simple imprisonment for 3 (three) months more.

Being aggrieved by the aforesaid impugned judgment and order of conviction and sentence dated 11.02.2018 the accused-appellant preferred this criminal appeal.  

Ms. Mst. Ismath Ara, the learned Advocate appearing  for the convict-appellant submits that it is apparent from the evidence and materials on record that no occurrence of attempt to rape took place at all, the informant party out of previous enmity lodged the false case in order to harass and humiliate the accused- appellant. The learned Advocate further submits that in this case important witnesses, who were allegedly present in the place of occurrence have not been examined by the prosecution  which creates serious doubt as to truthfulness of the prosecution case which can safely  be said that if those witnesses would have been examined, then probably the ocular version of the eyewitnesses would have stood falsified although trial Judge without considering all these vital aspects of the case mechanically found the accused-appellant guilty section 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003) and sentenced him thereunder to suffer rigorous imprisonment for a period of 5(five) years and to pay a fine of Taka 10,000/- (ten thousand) in default to suffer simple imprisonment for 3 (three) months more and as such,  the impugned judgment and order of conviction is liable to be set- aside.

Ms. Shahida Khatoon, the learned Deputy Attorney-General, on the other hand, supports the impugned judgment and order of conviction and sentence, which was according to her just, correct and proper. She submits that in this case it is apparent that occurrence took place on 04.09.2015 at 11:05 a.m. and all the PWs including the victim in their respective evidence corroborated each other as to attempt to rape beyond doubts  and accordingly, the learned Judge, Shishu Adalat, Chapainawabgonj rightly found the accused-appellant guilty under section 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him thereunder to suffer rigorous imprisonment for a period of 5(five) years and to pay a fine of Taka 10,000/- (ten thousand) in default to suffer simple imprisonment for 3 (three) months more.

Having heard the learned Advocate and the the learned Deputy Attorney General for the parties and having gone through the evidence and materials on record, the only question that calls for my consideration in this appeal is whether the learned Judge of the Shishu Adalat committed any error in finding that the accused- appellant guilty for the offence of attempt to rape under section 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003).

On  scrutiny  of  the  record,  it  appears  that  on 04.09.2015 at 20:05 hours one, Durul Huda as informant lodged an Ejahar with Nachol police station against the accused-appellant under section 9(4)(Kha) of the Nari- O-Shishu Nirjatan Daman Ain, 2000  ( as amended in 2003) on the allegation that accused Md. Liton brought her minor daughter ( victim) to a nearby toilet from his house and attempted to rape on her while her daughter victim raised hue and cry and then the witnesses namely, Most. Somija Begum, Md. Salam, Md. Saibur Master went there and rescued her minor daughter and caught- hold of the accused and beaten him. It further appears that  police  after  completion  of  usual  investigation submitted  charge  sheet  against  the  accused-appellant under section 9(4) (Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003).

At the trial the prosecution side to prove its case examined in all 07(seven) witnesses out of which PW-1, Durul  Huda,  informant  of  the  case  stated  that-  “

”   This witness in cross stated that

knowing about the facts from his wife and local people he lodged the case. PW-2, Md. Abdus Salam stated in his deposition that the accused and the informant are his neighbours and he knew both the parties. This witness also stated that- “

”  PW-3, Kulsum, victim of the case

stated in her deposition that- “

” PW-4, Sohibur Rahman corroborated the evidence of PW Nos. 1-3 in respect of all material particulars. PW-5, Somiza Khatun stated in his deposition that- “

”     PW-6,  Magistrate,  Md.  Shahidul  Islam

recorded  the  statement  of  the  victim  Kulsum  Khatun under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003). This witness proved the said  statement  of  the  victim  Kulsum  Khatun  under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 as “Ext.-2” and his signature there on as “Ext.-2/1” as well as signature of the victim as “Ext-2/2”. PW-7, Inspector  Goutom  Candra  Mali  investigated  the  case, who stated in his deposition that during investigation he visited  the  place  of  occurrence,  prepared  sketch-map, examined the witnesses under section 161 of the Code of Criminal Procedure and collected the copy of statement of  victim   under  section  22 of  the  Act  and  after completion  of  investigation  having  found  prima-face and thus, he submitted charge sheet against the accused- appellant. The evidence of PWs remained unshaken in the cross examination and all the PWs corroborated their evidence with each other.

On a close analysis of the above quoted evidence of PWs together with the statement of the victim under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003),  it appears that all the witnesses in their respective deposition corroborated with each other as to the fact that on 04.09.2015 the convict-appellant forcefully took the victim in a toilet and closed the door and thereafter, he tried to rape on her while on hearing the hue and cry of the victim local people came there and caught-hold of the convict- appellant and beaten him. All the prosecution witnesses proved the prosecution case as to the time, place and manner of occurrence and thus the prosecution proved the guilt of the accused appellant  beyond reasonable doubt and accordingly the trial Court below on due consideration of the entire evidence and materials on record found the accused-appellant guilty under 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him thereunder to suffer rigorous imprisonment for a period of 5(five) years and to pay a fine of Taka 10,000/- (ten thousand) in default to suffer simple imprisonment for 3 (three) months more.

On an analysis of the impugned judgment and order of conviction and sentence, I find no flaw in the reasonings of the trial Court below or any ground to

assail the same. The learned Judge of the trial court appears to have considered all the material aspects of the case and justly found the appellant guilty for the offence 9(4)(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003), I find no reason to interfere therewith. 

In view of my discussion made in the foregoing paragraph it is by now clear that the instant appeal must fail.

In the result, the appeal is dismissed. The impugned judgment and order of conviction and sentence dated 11.02.2018 passed by the learned Judge, Shishu Adalat, Chapainawabgonj in Shishu Case No. 11 of 2016 arising out of G.R No. 65 of 2015 (Nachol) corresponding to Nachol Police Station Case No. 05 dated 04.09.2015 convicting the accused-appellant under section 9(4)(Kha) of Nari-O-Shishu Nirjatan Daman Ain, 2000(as amended in 2003) and sentencing him thereunder to suffer rigorous imprisonment for a period of 5(five) years and to pay a fine of Taka 10,000/- (ten thousand) in default to suffer simple imprisonment for 3 (three) months more is hereby affirmed.

The convict-appellant is directed to surrender his bail bond within 3 (three) months from today to suffer rest of the sentence, failing which the Trial Court shall take necessary steps against the convict-appellant, Md. Liton to secure his arrest.

Send down the lower Courts’ records at once.