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Women and Children Repression Prevention Act

Medical prove over injury a must

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24th-Aug-2019       
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High Court Division :
(Criminal Appellate Jurisdiction)
ANM Bashir Ullah J
Mustafa Zaman Islam J
Judgment
July 23rd, 2018
Dr Ashim Kumar Das and others......Accused-Appellants
vs
State and another ......Respondents
Nari-o-Shishu Nirjatan Daman Ain (VIll of 2000)
Sections 11(ga)/30
Since the allegation brought against her husband of causing hurt is very much specific in nature we find that her husband should be brought under trial giving a fair chance to the informant to prove her allegation through trial but so far the other accused is concerned the allegations of causing hurt upon her by the other accused is very much superficial in nature having no depth in the allegation. .....(18)
Shikder Mahmudur Razi, Advocate-For the Appellants.
MM Zulfiqur Ali Haider with Abdullah Al Mamun, Advocates-For the State-Respondent No.2.

Judgment

ANM Bashir Ullah J : This criminal appeal under Section 28 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (in short, the Ain) is directed against the judgment and order dated 22-7-2013 passed by the Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Faridpur (in short, the Tribunal) in Nari-o-Shishu Case No. 474 of 2012 arising out of Madhukhali Police Station Case No. 15 dated 21-6-2012 corresponding to GR No. 107 of 2012 framing charge against the appellants under Sections 11(ga)/30 of the Ain by the impugned order.
2. The facts relevant for disposal of the appeal, in short, is that Rita Rani Das as informant lodged the First Information Report (in short, the FIR) on 21-6-2012 with Madhukhali Police Station naming 4 accused in an FIR they are 1) Asim Kumar Das, 2) Harendra Nath Das, 3) Shudha Rani Das and 4) Shamol Kumar Das alleging, inter-alia, that accused Asim Kumar Das had married her on 2-7-2008. Thereafter, she has been in the arms of her husband. During her marriage with Asim Kumar Das, her husband was a medical student  when she financially helped her husband to conclude the academic life smoothly but whenever Asim Kumar Das became a doctor he himself, his father, mother and other relatives became crazy for realizing dowry from the informant. The informant came to know very recently that the accused person have become more crazy for another marriage of Asim  Kumar Das and the information on 16-5-2012 at 5-00 pm going in the house of her husband tried  to assess the situation when all the 4 accused persons demanded Taka 10,00,000 (ten lacs) to her as dowry. They also informed her that if the demand of dowry is not fulfilled she will not be allowed to continue the marital tie with accused Asim Kumar Das. Since the informant expressed her inability to fulfil the demand of the accused, accused Asim Kumar Das pulling down her hair stroke leg blows on her and also mounting over her chest tried to kill her through strangulation. The other accused also assaulted the victim striking leg and hand blows causing scratchy injuries on the person of the victim. The mother of the victim being aware of the occurrence rescued her.
3. It is the further prosecution case that on 17-6-2012 the informant had again gone to the Madhukhali Health Complex to her husband to convince him but ultimately failed. The victim taking treatment from Faridpur filed the case. It has also been averred in the FIR that since the informant was expecting to settle the matter amicably she did not file the case immediate after occurrence.
4. On the basis of the above noted FIR Madhukhali Police Station Case No. 15 dated 21-6-2012 corresponding to GR No. 107 of 2012 were started. The case was investigated by the Police Sub Inspector Abul Kalam Azad who on completion of the investigation submitted Police report on 20-9-2012 recommending the trial of accused Asim Kumar Das under Section 11(ga) of the Ain while recommended for the discharge of remaining 3 accused.
5. The informant against the said police report filed a naraji petition on 18-10-2012 upon which the Tribunal asked the Investigation Officer to investigate the case again and the Police on completion of the investigation submitted report on 27-1-2013 without changing their earlier recommendation.
6. Thereafter, the informant again filed the Dowry Prohibition Act and case under the second naraji petition on 27-2-2013 and the Tribunal passed an order for holding judicial inquiry and ultimately the matter was inquired by a Senior Judicial Magistrate, Faridpur who by his report dated 25-3-2013 opined that there are some truthiness in the allegation of the informant and ultimately the Tribunal being satisfied of the said report took cognizance against all the 4 accused under Sections 11(ga)/30 of the Ain and when the case became ready for trial framed charge on 22-7-2013 under Sections 11(ga)/30 of the Ain against all the accused appellant.
7. The accused appellant being aggrieved by and dissatisfied with the said order of framing charge dated 22-7-2013 preferred this appeal in this Court. When the appeal was admitted for hearing the trial of the original proceeding was stayed for 4(four) months on 22-1-2014. Thereafter, it was extended from time to time and lastly on 17-9-2015 it was extended till disposal of the appeal.
8. Mr Shikder Mahmudur Razi, the learned Advocate appearing for the appellant supporting the appeal and assailing the impugned order of framing charge submits that the informant Rita Rani Das filed the case with the Madhukhali Police Station alleging, interalia, that her husband along with 3 other accused who is none but the father, mother and brother-in-law of her husband had assaulted her in order to realize Taka 10,00,000 (ten lacs) as dowry but interestingly there is no any medical papers in support of her injury.
9. The learned Advocate also submits that whenever as consideration of marriage dowry is demanded simply, an offence under Section 4 of Dowry Prohibition Act is committed but when the dowry is demanded and in order to realize the same hurt is caused to the victim an offence under Section 11(ka) or 11(kha) or 11(ga) of the Ain is committed. So, there is a basic difference between the case under Section 4 of the Dowry Prohibition Act and case under the provision of Nari-o-Shishu Nirjatan Air and that difference is led and attributed by the medical evidence. But in the present case no papers of medical treatment is available in the record. So, there was no lawful scope on the part of the Tribunal for framing charge under Section 11 (ga) of the Ain against the accused as there was no medical evidence in support of the hurt of the victim.
10. He next submits that in the FIR it has been stated that the accused persons conjointly demanded Taka 10,00,000 (ten lacs) as dowry to her but she (Rita Rani Das) deposing before the Judicial Magistrate tried to make out a definite case that for erection of a house, the accused demanded the dowry to her. In fact had there been any occurrence of demanding dowry for erection of the house that would find place in the FIR also.
11. The learned Advocate also submits that in the FIR it has been categorically stated that the accused Asim Kumar Das mounting over the chest of the victim tried to kill her through strangulation although this allegation is not supported by any medical evidence but there is no specific allegation against the remaining accused, it was alleged that they stroke feast blows, hand blows, lathi blows on the victim causing scratchy hurt on the victim but this type of allegations are not also supported by any medical evidence. If the victim would have sustained any scratchy injury from the 3 remaining accused namely 1) Harendra Nath Das, 2) Shudha Rani Das and 3) Shamol Kumar Das that would have been supported by the medical evidence. So, this fact reveals that the victim did not sustain injury from the other remaining 3 accused.
12. The learned Advocate in his concluding submission submits that in fact no occurrence took place as alleged by the informant. As a result, the Investigating Officer did not find any evidence against the 3 remaining accused Harendra Nath Das, Shudha Rani Das and Shamol Kumar Das but the Tribunal without considering the same framed charge against those accused persons also. So, the order of framing charge is liable to be set-aside allowing the appeal.
13. On the other hand Mr MM Zulfiqur Ali Haider with Mr. Abdullah-al-Mamun, the learned Advocate appearing for the respondent No.2 (informant) assailing the submissions of the learned Advocate for the appellants made so far submits that it is a case where the accused persons demanded Taka 10,00,000 as dowry and in order to realize the same assaulted the victim and victim took treatment from various medical centers and the Police being convinced of the prosecution case submitted report recommending the trial of Dr Asim Kumar Das but the informant submitted naraji petition against the Police report since the Police failed to recommend the trial for the remaining 3 accused but ultimately a judicial inquiry was held by a competent Magistrate who examining the 3 witnesses found the truthiness in the allegation of the informant. As a result, the Tribunal took cognizance of the offence under Sections 11(ga)/30 of the Ain against all the 4 accused and ultimately framed charge against them. The Tribunal on due consideration of the evidence and other materials on record framed the charge which did not call for any interference from this Court.
14. The learned Deputy Attorney-General appearing for the State endorsing the submissions of the learned Advocate for the respondent No.2 adds that in a case where dowry is demanded the prosecution should be given a fair and equitable chance to prove his case at trial and as part of the said act the Tribunal rightly framed the charge against all the accused and if both the parties are allowed to adduce their evidences in support of their respective case there will be fair adjudication without prejudicing either party. So, the order of framing charge should not be interfered by this Court in this appeal. He prays for dismissal of the appeal.
15. We have considered the painstaking submissions of the learned Advocates of all the parties and have gone through the materials on record with profound attention particularly the FIR., the Police reports, the judicial inquiry report, the order of framing charge and other materials on record.
16. It is pertinent to point out here that here is a remarkable difference between the -case under Section 4 of the Dowry Prohibition Act and a case under Section 11(ka) or 11(kha) or 11(ga) of the Nari-o-Shishu Nirjatan Daman Ain. If the prosecution story is confined within the demand of dowry as consideration of marriage, a case is maintainable under Section 4 of Dowry Prohibition Act but whenever there appears causing of hurt in order to realize dowry a case will run against the accused under Section either 11(ka) or 11(kha) or 11(ga) of the Nari-o-Shishu Nirjatan Daman Ain i.e. whenever any demand of dowry is backed by cruelty or of causing hurt upon the victim, a case may be started under the provision of Nari-o-Shishu Nirjatan Daman Ain against the accused.
17. In this particular case, the informant canvassed much regarding her hurt by the accused persons on the date of occurrence in order to realize dowry of Taka 10,00,000 (ten lacs) and though there is a statement that she took treatment from the Doctors but we did not find any paper in support of her treatment in order to get redress from the injury. The FIR is totally silent whether she had filed any paper of medical treatment or in the near future he would file the same. We have examined the Police report meticulously, the same is also silent regarding the medical treatment of the victim.
18. Under the above facts and circumstances we failed to understand what matter prevented the victim from filing the medical papers in the Tribunal to show the hurt allegedly caused by the accused persons. However, be that as it may, from the FIR we find that there is specific allegation against her husband that her husband mounting over on her chest tried to kill her through strangulation and though this allegation is not supported by the medical evidence so far but since the allegation brought against her husband of causing hurt is very much specific in nature we find that her husband should be brought under trial giving a fair chance to the informant to prove her allegation through trial but so far the other accused is concerned we find that the allegations of causing hurt upon her by the other accused is very much superficial in nature having no depth in the allegation.
19. We have also noticed it earlier for several times that there are allegations of causing hematoma and scratchy injuries on the person but this type of injuries can be well proved primarily through the medical evidence but which is very much absent in this case from the very beginning of this case. The allegation made against 3 accused is very much omnibus in nature. So, we are of the opinion that the framing of charge against 3 accused did not justify. The trial Tribunal should have considered that whenever an accused is brought into the trial of a criminal case to make answer regarding the hurt upon the victim there should be minimum paper regarding the causing of hurt upon the victim but the same is absent in this particular case. So, we find that framing of charge against Harendra Nath Das, Sudha Rani Das and Shamol Kumar Das did not justify at all.
20. Having regards to the above discussion, we find merit in this appeal so far it relates to the accused appellants Harendra Nath Das, Shudha Rani Das and Shamol Kumar Das.
21. In the result, the appeal is allowed in " part. The order of framing charge against Harendra Nath Das, Shudha Rani Das and (I Shamol Kumar Das is set-aside but the order of framing charge against Dr Ashim Kumar Das is a maintained. The trial Tribunal is directed to dispose of the case as early possible..

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