IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Criminal Appeal No. 2845 of 2022 Md. Enamul Haque and others.

     ...Convict-Appellants.                  -VERSUS-

The State and another.

                                                                            ... Respondents.

Present

Mr. Justice Mamnoon Rahman

Ms. Hosne Ara Diba, Adv.

… For the appellants.

Mr. Md. Taifoor Kabir, DAG with Mr. Md. Lokman Hossain, AAG Mr. Md. Hatem Ali, AAG

                  ....For the State.

Heard on: 22.02.2024

And

Judgment on: The 13th March, 2024

This  appeal  is  directed  against  the  judgment  and  order  of

conviction and sentence dated 23.02.2022 passed by the learned Judge (District and Sessions) of Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Rajshahi in Shishu Case No. 103 of 2019 convicting the appellants under  section  9(4)(Kha)/30  of  Nari-O-Shishu  Nirjatan  Daman  Ain, 2000  (amended  2003)  and  sentencing  them  to  suffer  simple imprisonment for 5(five) years and also to pay a fine of Tk. 10,000/- each, in default to suffer simple imprisonment for 3(three) months.

The prosecution case, in short, is that, one Most. Sufia Begum wife of Md. Sukur Ali of Village- Paharpur, Vobaniganj Pourashava, Police  Station-  Bagmara,  District-Rajshahi  lodged  First  Information Report  (FIR)  on  the  allegation  that  her  niece  most  Tania  Khatun

daughter  of  late  Abu  Syed  went  for  cutting  grass  in  the  field  on 21.07.2013 at about 14.00 hours and while she was cutting grass the accused No. 1, Md. Enamul Haque, Son of late Meher Ali, accused No. 2,  Md.  Farhad  Hossain,  Son  of  Md.  Rahidul,  accused  No.  3,  Md. Mithun Son of Md. Anar and accused No. 4, Md. Moznu Son of Md. Shutka  all  of  Village-Paharpur,  Police  Station-Bagmara,  District- Rajshahi came with ill motive and tried to rape making her nude and at that time hearing sought the witnesses came forward and seeing her presence of the witnesses the accuseds fled away. Hence the case.

The tribunal took cognizance and proceeded with the case. The appellant and others were apprehended by the police and they were enlarged on bail. The court below thereafter framed charge against the appellant and others under section 9(4)(Kha)/30 of the Nari-O-Shsishu Nirjatan Daman Ain, 2000( Amended 2003) and proceeded. During trial the prosecution adduced as many as 7(Seven) witnesses out of nine witnesses  and the  defence  adduced none.  The  court below did not examine the convict-appellant and others under section 342 of the Code of Criminal Procedure and ultimately passed the impugned judgment and order of conviction and sentence wherein the court below found the appellants guilty of offence under section 9(4)(Kha)/30 of the Nari-O- Shsishu Nirjatan Daman Ain, 2000. Being aggrieved, the appellants moved before this court by way of appeal.

Ms. Hosne Ara Diba, the learned counsel appearing on behalf of the appellants submits that the court below without applying its judicial mind  and  without  considering  the  facts  and  circumstances,  most illegally and in an arbitrary manner passed the impugned judgment and order of conviction and sentence which requires interference by this court. She submits that in the case in hand admittedly the accuseds are minor  but  police  has  submitted  charge  sheet  under  Section  9(4) (Kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (Amended 2003) which is not tenable in the eye of law and learned Nari-O-Shishu Nirjatan  Daman  Tribunal  framed  charge  under  said  sections  in pursuance of that charge sheet, hence the total proceeding on the basis of that charge sheet is illegal and full of nullity and the conviction is also illegal and without jurisdiction and as such the impugned judgment and order of conviction is liable to be set aside. She further submits that the accuseds are minor, their offence should be the trial under Child Act in a competent Children Court (িশ  আদালত) but they were tried

and convicted by Nari-O-Shishu Nirjatan Daman Tribunal which is illegal and without jurisdiction and as such the impugned judgment and order of conviction should be set aside.

Mr.  Mohammad  Taifoor  Kabir,  the  learned  Deputy  Attorney General  appearing  on  behalf  of  the  respondent-state  vehemently opposes  the  appeal.  He  submits  that  the  court  below  on  proper appreciation of the facts and circumstances and material on record has rightly passed the impugned judgment and order of conviction and sentence which requires no interference by this court.

I have heard the learned Advocate for the appellants as well as

the learned Deputy Attorney General for the state. I have perused the impugned judgment and order of conviction and sentence passed by the

court below, Memorandum of appeal as well as LC Records.

On perusal of the same, it transpires that the charge was framed against  the  appellant  along  with  three  others            for the offence committed under section 9(4) (Kha)/30 of the Nari-O-

Shishu Nirjatan Daman Ain, 2000 (Amended 2003) wherein it has been alleged that the accused and others with an ill motive tried to rape the victim. It transpires that the occurrence took place on 21.07.2013 but

there is no eye witness in the instant case. Moreover, the testimony of

the witnesses do not support with the FIR.

It transpires from the papers and documents that the informant

was examined as P.W. 1 who in her deposition stated that she lodged

the  FIR  hearing  the  occurrence  from  local  people.  In  her  cross- examination however stated that she was not present at the time of

place of occurrence or did not see anything. She further stated that the person from whom she heard the occurrence did not make them as witnesses in the instant case. P.W. 2 in his deposition stated that he

does not know when the occurrence took place. He further stated that

after few days he heard the occurrence from the informant that some

boys from the village had committed a misdeed with the informant’s granddaughter.  In  his  cross-examination  stated  that  he  knows  the accuseds but he neither saw nor heard what the occurrence was about. P.W. 3 is the victim who in her deposition stated that she know the accuseds standing on the dock. She further stated that the accused Enamul took her to the place of occurrence and then he tried to commit misdeed  with  her  after  removing  pant,  but  failed.  In  her  cross- examination stated that she does not know the exact time when it took place. She further stated that the accuseds caught hold her for a while. She shouted there for a long. She after getting release came home with Sube Khatun. P.W. 4 who is the only eye witness as per FIR stated that

“বা ার  সােথ  িক  হয়,  তা  জািন  না।  তেব  আিম  কাজ  কের  ফরার  পেথ বা াটােক কাদেত  দিখ। আিম বা ােক বাড়ী পা ঠেয় িদেয় চেল যাই আমার বাড়ীেত।  বা াটা  বেলিছল  য,  ছ াড়ারা  তােক  মেরেছ।  তেব  ছেলেপেল

 দিখিন” In her cross-examination stated that she saw the victim on the road while there were none and she further stated that on being asked the victim said that the boys beaten her. P.W. 5 in his deposition stated that informant is the grandmother of the victim and the victim is his sister. He further stated that at the time of occurrence he was at home and he further stated that the victim told him some boys beaten her. In his cross-examination he stated that he heard the occurrence from his grandmother.  In  cross-examination  by  the  defence  he  stated  that informant or victim nothing has been said about the occurrence. P.W. 6

is  the  Senior  Judicial  Magistrate  and  stated  that  he  recorded  the victim’s  statement  under  section  22  of  the  Nari-O-Shishu  Nirjatan Daman Ain and P.W. 7 in his deposition stated that he did not know about the occurrence. In his cross-examination stated that he did not see the occurrence in his own eyes. 

So, on meticulous perusal of the oral evidence, it transpires that P.W.  1  Most.  Sufia  Begum  is  the  informant  lodged  the  First Information Report hearing the incident from the local people rather than the victim  more so her statement contradicts with the FIR. It further transpires that except P.W. 3 who is the victim herself there is no eye witness in any manner. The other witnesses while deposing in the court of law made certain lump allegations against the appellants.

On careful scrutiny of the L.C. Records, it transpires that on the day of occurrence there was no attempt to rape on the victim by the accused persons. It transpires from the aforesaid papers and documents that the court below failed to appreciate the testimony of the P.Ws. in its  true  perspective  as  much  as  the  manner,  place  and  time  of occurrence. Apart from that it further transpires that though there was an allegation of attempting rape on the victim but the prosecution failed to prove the said allegation brought against the accused persons which creates serious doubt in the prosecution case. It further transpires that in the instant case the charge was not properly framed and there is no ingredients  of  section  9(4)  (Kha)/30  of  the  Nari-O-Shishu  Nirjatan Daman Ain, 2000 but the court below on the basis of surmise and conjecture convicted and sentenced the appellants for a period 5(five) years  which  cannot  be  sustained  in  the  eye  of  law.  Hence,  I  find substance in the instant appeal which is required to be allowed.

Accordingly, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the trial court is hereby set aside.  The  appellants  are  discharged  from  the  bail  bond  and  the appellant is acquitted from the charge leveled against them.

Send down the L.C. Records to the concerned court below with a copy of the judgment at once.

(Mamnoon Rahman,J:)