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There is litte scope to scan the evidence under law

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04th-Mar-2017       
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APPELLATE DIVISION :
(Criminal)
Surendra Kumar Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Hasan Foez Siddique J
 
Judgment
August 31st, 2015

Sharif alias Shaira .... .............. Petitioner
Vs
State……..Respondents

Code of Criminal Procedure (V of 1898)
Section 561A
In an application under Section 561A of the Code, there is little scope to scan the evidence, of witnesses and that since it is not a case of no evidence it is difficult to interfere with the judgment passed by the Tribunal.        …..(8)

Jaglul Haider Afric, Advocate, instructed by Mahmuda Begum, Advocate-on-Record-For the Petitioner.
None Represented-For the Respondent.
Judgment
Hasan Foez Siddique J : The petitioner filed an application under Section 561A of the Code of Criminal Procedure in the High Court Division against the judgment and order dated 21-1-2010 passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Narshingdi in Nari-o-Shishu Case No. 275 of 2005 and obtained Rule. The Tribunal convicted the petitioner under Section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain in short (the Ain) and sentencing him to suffer imprisonment for life and to pay a fine of Taka 2,00,000, in default, to suffer rigorous imprisonment for 1(0ne) year more.
2. The prosecution case, in short, was that at about 4-00 pm on 5-4-2005, the petitioner raped the informant's minor daughter Tanzuma finding her in their house alone. The PW 1 lodged a First Information Report (FIR) with Monohordi Police Station bringing such allegation. The police, after holding investigation, submitted chargesheet against the petitioner under the aforesaid provision of law. The case was ultimately tried by the Nari-o-Shishu Nirjatan Daman Tribunal, Narsingdi who framed charge against the petitioner under Section 9(1) of the Ain. The petitioner pleaded not guilty and claimed to be tried.
3. The prosecution examined 11 witnesses in support of its case and defence examined none. From, the trend of cross-examination it appears that defence case was of innocence and false implication.
4. The Tribunal, examining the petitioner under Section 342 of the Code of Criminal Procedure and hearing the parties, convicted and sentenced the petitioner as mentioned above.
5. The petitioner could not prefer appeal within the time stipulated in law. Then, he filed an application under Section 561 A of the Code of Criminal Procedure and obtained Rule. The High Court Division by the impugned judgment and order dated 26-7-2012 discharged the Rule. Thus, the petitioner has filed this petition.
6. Mr Jaglul Haider Afric, learned Advocate appearing for the petitioner, submits that the prosecution has failed to prove its case beyond shadow of doubt by adducing sufficient evidence against the petitioner, the High Court Division committed error of law in discharging the Rule.
7. The prosecution case was that on 4-5-2005 at about 5-00 pm, the petitioner getting the victim alone in their house, raped her against her will. It appears that out of 11 prosecution witnesses, PW 1 is the mother of victim who narrated the prosecution story as mentioned above. PW 2 grandmother of the victim in her testimony stated that she saw the petitioner to flee away from her house at the time and date of occurrence. She entered to their dwelling hut and found the victim lying on the "Chowki" and blood coming out-from her private part. PW 3 is the grand father of victim who in his testimony stated that, after the occurrence, villagers assured them that they would settle the matter so they did not go to the Police Station. Subsequent after the occurrence. PW 4, First Class Magistrate, Narsingdi recorded the statement of victim under Section 22 of the Ain, The PW 5 is the father of the victim who deposed that the petitioner had raped his daughter. PWs 6-10 corroborated the testimonies of PWs 1-4,  PW 11 is the Investigating Officer of the case. It appears that after examination of PW 1, the petitioner absconded and he did not cross-examine the PW s 2 to 11, that is the evidence adduced by the PWs 2-11 had not been contradicted or denied by the defence cross- examining those witnesses.
8. The High Court Division held that in an application under Section 561 A of the Code of Criminal Procedure, there is little scope to scan the evidence, of witnesses and that since it is not a case of no evidence it is difficult to interfere with the judgment and order passed by the Tribunal.
9. In view of the evidence and the conclusion arrived at by the High Court Division, the judgment and order impugned here do not call for any interference by this Division.
Accordingly; the petition is dismissed.

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