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What constitutes a legal evidence ?

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08th-Jul-2017       
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High Court Division :
(Criminal Appellate Jurisdiction)
Md Emdadul Huq J
Ashish Ranjan Das J
Judgment
May 11th, 2016
Najim Uddin (Md)
.......Convict-Accused-
Appellant
vs
State...... Respondent

Nari-o-Shishu Nirjatan Doman Ain (VIII of 2000)
Section 9(1)
Only one party of the two contributing to the amicable act can not be stamped to have committed an offence of rape. The act of the male partner does not attract the mischief of Section 9(1) of the Ain.
That liberal interpretation of Section 9(1) of the Ain, 2000 tilting towards the adult female partner in one hand, in such cases, may open a flood gate of such embroided and frivolous litigations and on the other hand, it may send an improper signal to the society in general and to the female partners in particular that in its turn help shun their tradition bound values. The charge under Section 9(1) of the Nari-o-shishu Nirjatan Ain of 2000 (amended 2003) failed and accordingly the appeal is allowed. With the passage of time, short or long, the relationship between the two, developed and Nasima might have a hidden desire, physio-mental. Slowly these two adults, consciously or not started reaching the body of each other and it went on and reached its peak but finally hindered by reasons fountained from a hard reality. . ..... (29,30,31 & 28 )
Jayanti Rani Panda vs State of West Bengal, 1984 Cri LJ page 1535 ref.
Abdus Salam, Advocate-For the Convict-Accused Appellant.
Md Aminur Rahman Chowdhury. AAG-For the Respondent.

Judgment
Ashish Ranjan Das J : Learned Nari-o-shishu Nirjatan Daman Tribunal No.1, Chittagong (for short, the tribunal) by its judgment dated 25-11-2013 passed in Nari-o-shishu Nirjatan Daman Case No. 89 of 2009 convicted accused appellant Mohammad Najim Uddin (for short Najim Uddin) under sections 9(1) of the Nari-o-shishu Nirjatan Daman Ain, 2000(in short, the Ain 2000) and sentenced him to suffer imprisonment for life followed by fine of Taka 50,000 to be payable to the complainant victim. By this appeal under Section 28 of Act the Ain of 2000 the legality and propriety of the judgment of conviction and sentence has been called in question.
2. Facts relevant for the purpose disposal of the Appeal that could be gathered from the file succinctly are that the convict appellant used to be a neighboring young man to the informant. Over the period he would vex the informant victim Nasima Akter@ Nasu (in short, Nasima) with an intent to establish a secret physical relationship. As Nasima disagreed in the bargain the appellant purported to have married Nasima on 1- 11-2008 by touching the Holy Quran and, believing that she in this way has been legally married to the appellant, Nasima amicably indulged in regular sexual intercourses and it went on. Next as Nasima raised the issue of a formal marriage on 20-11-2008, the convict appellant Najim being accompanied by his brothers and father came to the parental place of Nasima with a proposal of legal marriage and it was fixed that a marriage would be solemnized on 18-12-2008. Meanwhile Nasima paid Taka 80,000 to bear the incidental expenses of marriage to be held, while secretly the physical relationship between Nasima and Najim continued unhindered and by the time they visited Cox's Bazar and other places as man and wife. However on 20-12-2008 all on a sudden over telephone the appellant demanded an extra amount of Taka 3,00,000 (three) lac as dowry and as the complaining party disagreed the relationship did not result in a formal marriage. Hence by doing this the appellant committed rape upon the informant victim Nasima by obtaining her consent to sexual intercourses by deceitful means and in doing so the appellant's three brothers and father nominated as accused No. 2-5 also abeted the crime that calls for a punishment under Section 9(1) 730 of the Ain of 2000. As the police refused to record a regular case upon Nasima's ejahar the victim brought a formal petition of complaint before the Nari-o-shishu Nirjatan Daman Tribunal on 16-2-2009. The matter was sent for a formal inquiry by a Police Officer of the local Satkania Police Station, Chittagong.
3. It appears that on 16-3-2009 the said police officer filed a report finding the complain of Nasima Akter primarily proved in respect of all the 5 persons nominated in the petition of complaint in respect of rape and its abetment. In the inquiry report it was further noted that in fact Nasima and Najim used to maintain an intimate relationship over the period and in the process subsequently all these things happened.
4. The Tribunal found the allegation and the report respecting the appellant's brothers and father not acceptable and accordingly he discarded it and released the remaining accused No. 2-5.
5. However the tribunal by the same order took cognizance of the offence calling for a penalty under sections 9(1) of the Act VIII of 2000 in respect of the Romeo, Najim Uddin and issued a process. He appeared and obtained bail. Charge as proposed was framed which he denied.
6. Next the prosecution examined six witnesses that include the victim complainant Nasima (PW I), her sister Champa (PW 2), brother Rahim (PW 6), another relation (PW 4) and two co-villagers (PW 3/5). However the officer inquiring was not examined.
7. The Tribunal declared closure of recording of prosecution witnesses and the accused was examined under Section 342 of the Code of Criminal Procedure. In that stage too the appellant stuck to his earlier plea of innocence however did not speak anything positive in defence nor he adduced any defence evidence.
8. The defence as it transpires simply is that nothing happened as was complained.
9. Next upon assessment of evidences and circumstances the Tribunal handed down the above noted judgment of conviction and sentence that has been the subject matter of this appeal.
10. The learned advocate for the convict appellant serged forward that this judgment of conviction and sentence is based on no legal evidence, rather upon surmise and conjecture. However the learned Deputy Attorney General raised a protest against the grounds taken in appeal.
11. It is noted that although the inquiry report was not formally admitted in evidence due to non-appearance of the Inquiry Officer of the Police, we have considered the report. Because it forms part of the prosecution material-cum-complaint upon which the tribunal took cognizance and framed charge against the appellant and discharged his other family members.
12. We have heard the learned advocates for the parties and gone through the entire materials on record. According to Nasima's complain the appellant over the period used to vex her with an intent to establish a love affair or a secret carnal relationship while according to the inquiry report appearing in the LCR these two used be in love over the period. The report suggests as Nasima (PW 1) herself admitted too that she disagreed to be examined medically. So neither her age nor any other information relating to those aspects could be had through a medical examination.
13. However Nasima herself did never claim her as a minor and according to her deposition at the relevant time she was 24 years old, in other words, quite an adult woman. In her cross examination she admitted to have studied in a school and was quite aware of the fact as to what constitutes a marriage according to Islamic Sharia. She further admitted and as it appears from the story narrated in the complaint that since there was no marriage in the eye of law or Islamic Sharia she and her guardians tried their best so that the appellant agrees to marry Nasima, but of no avail.
14. It would be rather trite to illustrate in so many words that in the matter Nasima is the prime witness. She is supposed to know what actually happened. Section 134 of the Evidence Act does not fix a numerical standard of witnesses to prove a particular fact. The only condition attached is that such a solitary testimony should be reliable beyond reproach and approach. Now it is in the inquiry report that even before the occurrence Nasima and the appellant used to be in love over the period while according to Nasima herself (PW 1) the appellant wanted to establish a relationship, and sexual relationship actually commenced when the appellant touched the Holy Quran and promised to get Nasima married in some indefinite future date. But as he promised, according to the complain, Nasima gave her consent to sexual intercourses and it continued for the next few months unhindered but secretly. Nasima as PW I, herself said that after the first sitting the relationship continued. The boy would secretly come frequently and she would amicably take part in sexual intercourses with a hope of marriage. There is no clue in the file or in the statement of Nasima that she ever raised the matter with her guardians immediately after. Rather she was so daunt less that during the period she travelled with the Romeo (appellant) as his wife to Cox's Bazar and other places knowing fully well that she was yet to be married to the appellant.
15. Now in one hand Nasima in her complain raised, as she narrated in her evidence that the appellant at first proposed to establish a physical relationship after having touched the Holy Quran, and according to the inquiry report on the other hand, they had been maintaining intimate relationship over the period.
She further claimed that as the matter was disclosed and raised, the appellant, his father, brothers and other leading villagers sat in a Salish and it was settled that the appellant would marry Nasima.
16. But Nasima herself in her cross examination stated that not the appellant but his father brought the proposal and this part of the statement too was corroborated by none. The Police Officer in his inquiry report appended a list of at least 6 responsible persons as witnesses but none of them was examined as a prosecution witness.
17. The remaining witnesses were Nasima's sister PW 2, another relation PW 3 and no such local Union Parishad Chairman, Member or leading villager was examined. While PW 3, 4, 5 briefly stated that as the matter came to light three months after, there was sitting of close relations of the parties those include only 2, 3 persons.
18. All these facts suggest that Nasima's testimony is not credible and her conduct was further unreliable. Evidence on record shows that she was adult and an ordinary prudent woman having some schooling. She was quite aware of the necessity and features of a formal muslim marriage. She also knew that sex before marriage was not only undesirable from the social point of view but also from religious point, which is evident from her statement about the alleged touching of the Holy Quran by the Appellant for obtaining Nasima's consent before the first time sex. But before being actually married she on her own volition continued to maintain a physical relationship with a young man and travelled with him here and there. This situation continued for months. These circumstances suggest that her verbal testimony with regard to alleged deceitful assurance of marriage is contrary to her conduct and thus her lone testimony cannot be the basis of conviction.
19. It is noted that all the remaining five witnesses including Nasima's brother, (PW 6), sister (PW 2) and a relation (PW 4) only claimed to have heard about the happenings between Nasima and the appellant from the mouth of Nasima alone and that too few months after and next, there was a sitting between the parties respecting their marriage. But excepting Nasima's sister (PW 2) none of the other witnesses mentioned the fact of fraudulent obtaining of her consent by the appellant by touching the by Holy Quran. Now if the alleged victim's verbal testimony could not be relied on, there remains nothing in the eye of law to rope the appellant with the charge.
20. Nasima PW I was adult enough to understand what is marriage, what is premarital sex and what a man can say or how he can behave ,with an intent to win a girl's consent to premarital sex.
21. In the case of Jayanti Rani Panda vs State of West Bengal, reported in 1984 Cri LJ, page 1535, it happened that Jayanti Rani Panda used to be a school teacher. She developed a romantic relationship with her colleague-accused. The accused friend promised to marry Jayanti Rani in some indefinite future time and Jayanti continued to maintain a regular physical relationship with her friend-accused.' But, as may very often happen, her colleague did not or could not keep his promise.
 (To be continued)
Thus, Jayanti Rani brought a criminal case of rape with a plea that she would not have given consent to sexual intercourses, had her colleague not promised of marriage. Indian Supreme Court acquitted the accused and held that:
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact of the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from misconception of fact. But here the fact alleged is a promise to marry, we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability of the other, unless the court can be assured that from the very inception the accused never really intended to marry her."(Para: 16).
22. In the case referred to above, in the matter English view was also discussed, in para 10, as had been observed in the case of R vs Clarence, (1886-90) AER: 133.
"That consent obtained by fraud is no consent at all, is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent"
23. In the instant case, the test is that, nothing happened by which Nasima (PW 1) would have had a reason to believe that, because of touching the Holy Quran by the appellant and giving promise of marriage, she became married to the appellant. There was, according to the statement of Nasima alone, that the appellant promised to
marry her in some indefinite future time. If we accept Nasima's sole testimony to be reliable, in that event also it cannot be said that Nasima's consent to regular sexual intercourse was obtained by deceitful means. Nasima consented to repeated sexual intercourses with the appellant as an outcome of her own mental change, infatuation, attraction towards the appellant and a hope for future marriage. The Tribunal failed to notice these facts. The scenario needs to be judged in the light of in Section 9(1) of the Ain, 2000 and also Section 375 of the Penal Code. These are quoted below:
“৯। ধর্ষণ, ধর্ষণজনিত কারণে মৃত্যু, ইত্যাদির শাস্তি। -- (১) যদি কোন পুরুষ কোন নারী বা শিশুকে ধর্ষণ করেন, তাহা হইলে তিনি যাবজ্জীবন সশ্রম কারাদন্ডে দন্ডনীয় হইবেনা এবং ইহার অতিরিক্ত অর্থদ-েও দন্ডনীয় হইবেন।
ব্যাখ্যা। - যদি কোন পুরুষ বিবাহ বন্ধন ব্যতীত [ষোল বৎসরের] অধিক বয়সের কোন নারীর সহিত তাহার সম্মতি ব্যতিরেকে বা ভীতি প্রদর্শন বা প্রতারণামূলকভাবে তাহার সম্মতি আদায় করিয়া, অথবা [ষোল বৎসরের] কম বয়সের কোন নারীর সহিত তাহার সম্মতিসহ বা সম্মতি ব্যতিরেকে যৌন সঙ্গম করেন, তাহা হইলে তিনি উক্ত নারীকে ধর্ষণ করিয়াছে বলিয়া গণ্য হইবেন।
“(২)  -- (৫) ..................”
"Section 375-Rape-A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following description.
First: Against her will.
Secondly: Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her in fear of death, or of hurt,
Fourthly : With her consent, when the man knows that he is not husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly: With or without her consent, when she is under [fourteen] years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under [thirteen] years of age, is not rape."
24.  Section 9(1) of the Ain, 2000 does not define rape, but speaks of al©Y in general. The Explanation (e¨vL¨v) to the sub-section speaks of among other factors “সম্মতি ব্যতিরেকে বা ভীতি প্রদর্শন বা প্রতারণামূলকভাবে তাহার সম্মতি আদায় করিয়া।”
25. In the instant case, Nasima, according to the complaint itself was above 18. She claims that she consented to the physical relationship as a result of the deceitful means. But evidence on record as discussed earlier indicate that it was her voluntary act. So the mischief of Section 9(1) is not attracted.
26. It is noted that Section 375 of the Penal Code does not directly refer to the situation of obtaining consent by deceitful means, but speaks of consent only. In our view the expression "consent" means voluntary consent of an adult. So the circumstances of this case does not attract Section 375 of the Penal Code.
27. The case of Nasima seems to be similar to that of Jayanti Rani hinted above. In the said case of Jayanti two adult man and woman, indulged in repeated sexual intercourses, where there was no evidence of use of force or of a promise of marriage amounting to deception. Two adults, through a complex chemistry of acquaintance developed a close proximity, leading to physical relationship.
28. It appears from the materials on record that, with the passage of time, short or long, the relationship between the two, developed and Nasima might have a hidden desire, physiomental. Slowly these two adults, consciously or not started reaching the body of each other and it went on and reached its peak but finally hindered by reasons fountained from a hard reality.
29. In the circumstances of the case as revealed from evidence on record, only one party of the two contributing to the amicable act can not be stamped to have committed an offence of rape. In our view, the act of the male partner does not attract the mischief of Section 9(1) of the Ain, 2000.
30. We further hold that liberal interpretation of section 9(1) of the Ain, 2000 tilting towards the adult female partner in one hand, in such cases, may open a flood gate of such embroided and frivolous litigations and. on the other hand, it may send an improper signal to the society in general and to the female partners in particular that in its turn help shun their tradition bound values. Here we feel tempted to recalI a comment of the aforesaid case of Jayanti Rani that:
"If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part."
31. The Tribunal failed to appreciate as to what a legal evidence is and what not. With these findings we arrive at the conclusion that the charge under section 9(1) of the Nari-o-shishu Nirjatan Ain of 2000 (amended 2003) failed and accordingly the appeal is alIowed. The Judgment of conviction and sentence dated 25-11-2013 passed by the Nari-o-Shishu Nirjatan Daman Tribunal No.1. Chittagong in Nari-o-Shishu Nirjatan Daman Case No. 89 of 2009 is hereby set aside and the appellant Mohammad Najim Uddin is hereby acquitted of the charge framed against him in that case and he be accordingly' set at liberty.
Office is instructed to communicate this Judgment and order and send down the LCR at once.

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