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In amicable act no single party can be stamped out

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High Court Division
(Criminal Appellate Jurisdiction)
Md Emdadul Huq J
Ashish Ranjan Das J
May 11th, 2016
Najim Uddin (Md) ....................Convict-Accused- Appellant
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 con 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.
Ashish Ranjan Das J : Learned Nari-oshishu 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 1-22-2008 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 (PW1), her sister Champa (PW 2), brother Rahim (PW 6), another relation (PW 4) and two co-villagers (PW3/5). 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 (PW1) 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 Saharia. 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 (PW1) 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 intercourse and it continued for the next few months unhindered but secretly. Nasima as PW1, 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 mater with her guardians immediately after. Rather she was so daunt less that during the period she traveled 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 the matter vas 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.
 (To be continued)

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