Rupture
is sufficient proof of rape
The
High Court Division,
Supreme Court of Bangladesh
Criminal Appeal No. 473 of 2002
Md. Wasim Mia and another
Vs
The State,
represented by the Deputy Commissioner, Netrokona
Before Mr. Justice A.K. Badrul Huq and
Mr. Justice Syed Mahmud Hossain
Date of judgement : 9.4.2003
Background
A K Badrul Huq J: This case presents an apt illustration how own blood
becomes hostile to divulge facts in a court of law of a dehumanising
and revolting crime like deflowering a deaf and dumb minor girl aged
about fifteen (15) years.
Deaf
and dumb minor girl Champa Khatoon was a captive to the altar of Md.
Wasim Mia. Md. Wafiz Mia was aide to gratification of libido of Md.
Wasim Mia. Champa Khatoon was ravished. Dehumanising incident took place
on 12.7.2000 at village Jamati, Police Station and District-Netrokona.
Following
the incident, on the following day that is on 13.7.2000, a local shalish
was held. Champa Khatoon amongst the people assembled in the salish
pointed her finger at Md. wasim Mia as the rapist and made disclosure
of another offender. Champa Khatoon fixed Md. Wasim Mia by beckoning,
gesture and hint. She thereafter, also located Md. Wasim Mia at Thakurkona
bus stand on her way to Netrokona Hospital.
Law
was set on roll by Khodeja Khatoon, mother of Champa Khatoon on presentation
of a petition of complaint before Magistrate, First Class, Netrokona
on 17.7.2000. Petition of complaint was transmitted to Netrokona Police
Station for treating it to be First Information Report and accordingly,
Netrokona Police Station Case No. 11 dated 13.8.2000 had been registered.
Investigation
commended. Champa Khatoon was examined by a Dr. A.K.M. Rafiqul Islam
Khan, Resident Medical Officer, Sadar Hospital, Netrokona. No sign of
forceful intercourse was found at the time of examination. Hymen of
Champa Khatoon was found rupture.
Statements
of Champa Khatoon and Khodeja Khatoon were recorded by Md. Yousuf Ali,
Magistrate, First Class, Netrokona under section 164 of the Code of
Criminal Procedure. Statement of Champa Khatoon was noted down by learned
Magistrate by means of beckoning, gesture and hints which were explained
by her mother Khodeja Khatoon to Magistrate.
Learned
Magistrate appeared to have recorded statement under section 164 of
the Code and not under section 22 of The Nari-O-Shishu Nirjatan Daman
Ain of 2000 (hereinafter referred to as Ain of 2000). Statements were
required to be put down under section 22 of Ain of 2000. Nomenclature
under which statement was recorded is not at all relevant and statement
is required to be treated as recorded under section 22 of Nari-O-Shishu
Nirjatan Daman Ain of 2000 which is the proper and correct provision
of law.
Accused
Md. Wasim Mia and Md Wafiz Mia were put on trial of charge of section
9 (1) of Ain of 2000 in Nari-O-Shishu Nirjatan Daman Case No.81 of 2002
before Nari-O-shishu Nirjatan Daman Tribunal. Nari-O-Shishu Nirjatan
Daman Case No.89 of 2000 shall be described as Case and Nari-O-Shishu
Nirjatan Daman Tribunal for shake of convenience will be known as Tribunal.
Tribunal
found accused Md. Wasim Mia and Md. Wafiz Mia guilty of offence of section
9(1) of Ain of 2000 and convicted them thereunder. Following conviction
they were sentenced to imprisonment for life and also, to pay a fine
of Taka 10,000/- each. In default of payment of fine each of accused
person was to suffer rigorous imprisonment for two (2) years more. Fine
was treated as compensation to be offered to victim Champa Khatoon and
sum was ordered to be recovered from assets of accused persons. Further
order recorded was that in the event of non-availability of asset amounting
to Taka 10,000/- the said amount would be recoverable from future properties
and assets of accused persons.
Tribunal
in awarding verdict considered evidences of prosecution Witnesses, fact
and circumstances of case and also, ground reality. Tribunal, also,
took into stock AIR 1979 SC 1994= 1979 Cr. L.J. (SC) 98. Tribunal found
that there were no material variations between the version in petition
of complaint and statement made out in course of trial by PW 1 Khodeja
Khatoon and that it could not be believed that a reasonable woman would
file a false written objection in respect of chastity of her daughter.
Tribunal did not find anything to disbelieve prosecution case.
Rafiqul
Islam Khan (PW 14) found hymen of Champa Khatoon (PW 10) was rupture.
Tribunal rendered positive decision that rupture of hymen was sufficient
proof of rape.
Feeling
dissatisfied with verdict of conviction and sentence convicts Md. Wasim
Mia and Md. Wafiz Mia as appellants sought setting aside those through
a Petition of appeal before this Court.
Deliberation
The contention of accused appellants is that case against accused-appellants
is of no evidence and foundation of conviction and sentence upon accused-appellants
having been statements made by Informant Khodeja Khatoon (PW 1) and
victim Champa Khatoon (PW 10) which were recorded by a Magistrate, First
Class under section 164 of the Code and statements having not been substantive
evidence, conviction and sentence became unsustainable in law. Support
for said contention has been sought to be drawn from Khashru alias Khorshed
Vs. The State, 35 DLR HCD 119 and Babloo and another Vs. State, 47 DLR.
HCD 537.
Rejoinder
has been supplied to above contention in bringing home argument that
statement of PW 1 and PW 10 recorded under section 22 of Ain of 2000,
though, wrongly recorded under section 164 of The Code had not been
the only structure for awarding conviction and imposing penalty upon
accused-appellants but there are other evidences, both ocular and circumstantial,
which form the basis of conviction and sentence upon accused-appellants.
Section
164 of the Code makes provision for recording statement or confession.
A statement recorded under section 164 of the Code is not necessarily
a statement made by an accused person. It may be that of a witness in
the case under investigation. "Confession" clearly refers
to that of an accused person. The word "statement" used in
the section is limited to the witness only. A statement which is not
a confession is to be recorded in a manner prescribed for recording
evidence while a confession is to be recorded in the manner provided
in section 364 of the Code.
The
statement that is recorded under section 164 has the endorsement of
a Magistrate that the statement has been made by the witness. During
trial if the witness sticks to the statement given by him/her to the
Magistrate under section 164, no problem arises. But if the witness
deviated from the statement given by him/her under section 164, problem
arises and the witness can be cross-examined. Then it is for the court
to consider taking into account all the circumstances. Previously section
157 of the Evidence Act could be pressed in aid which postulates that
the statement recorded under section 164 can be relied on for corroborating
the statement made by witness in committal court but committal procedure
stood omitted by Law Reforms Ordinance of 1978.
A
careful examination of above provision demonstrates that statement of
a witness noted down under section 22 of Ain of 2000 cannot form the
sole basis in imposing penalty upon a person stands indicted and for
awarding conviction there should be some evidences, ocular and circumstantial,
which will lend support to authenticity of statement of witnesses recorded
under section 22 of Ain of 2000.
Section
22 of Ain of 2000 is almost akin to section 164 of the Code. Distinction
which is gathered is that in section 164 provision of recording confession
along with the statement had been also provided and in section 22 of
Ain of 2000 provision of recording a confession had not been provided.
The
kernel question which survives for determination in this appeal is whether
conviction and consequential sentence passed upon accused-appellants
can be sustained on evidences, materials on record, fact and circumstances
of the case and, also, in safe dispensation of criminal justice.
The Ain of 2000 is a stringent legislation, the paramount object is
to punish the offenders in respect of women and children in the face
of spurt of crime like rape, acid burn, dowry death etc.
Accused-appellants
stood tried and convicted for offence of section 9(1) of Ain of 2000.
Section 9(1) provides for punishment of commission of rape and punishment
is imprisonment for life and also fine. In the Ain offence of commission
of rape has been contained in section 2 (Uma) and definition of rape
embodied in section 375 of The Penal Code has been made applicable to
Ain of 2000.
The
word "rape" literally means forcible seizure and that element
is characteristic feature of offence. Therefore, it can be said that
rape is forcible ravishment of a woman/girl without her consent. To
put simplest definition of rape is having sexual intercourse with a
woman/girl without her consent.
Now
it is to be seen whether the charge of section 9(1) of Ain of 2000 could
be brought home by prosecution in respect of two accused-appellants
Md. Wasim Mia and Md. Wafiz Mia.
Fabric
upon which the prosecution case rested are: Ocular evidence of informant
PW 1. Tenor and spirit of evidence of PW 1 demonstrates that she proved
prosecution case that accused-appellant Md. Wasim Mia was the contributor
of commission of rape of her daughter Champa Khatoon (PW 10). The evidence
of PW 1 is sufficient to find accused appellant Md. Wasim Mia guilty
of the offence of section 9(1) of the Ain of 2000 as section 134 of
The Evidence Act, 1872 gives statutory recognition that conviction can
be based on the testimony of a solitary witness.
Evidence
of PWs 2 and 3 that Champa Khatoon had gone for bath and, thereafter,
was untraceable and at (12-00) mid-night Champa Khatoon was recovered
from a road. PWs . 2 and 3, also, give evidence in respect of holding
of shalish over the incident. Evidence of PW 5 and PW 6 over holding
of shalish in respect of the incident.
Seizure
of wearing apparels that is Kamiz and torn Salowar of victim Champa
Khatoon, Material Exhibit-2/1 and seizure of Material Exhibits had been
proved by PW 8.
Medical
Evidence: It came from the evidence of PW 14 the Doctor that hymen of
victim Champa Khatoon had been ruptured.
Act
of abscondence is a relevant piece of evidence to be considered along
with other evidence and it can be held as a determining link which admit
of no other reasonable hypothesis than that of guilt of the accused-appellant
Md Wasim Mia. Abscondence furnished circumstances which is considered
sufficient corroboration of accused-appellant No 1 Md Wasim Mia's participation
in commission of crime.
On
a close examination of evidences and materials on record there were
penumbra of suspicion in accused-appellant No.2 Md Wafiz Mia's involved
in commission of crime and prosecution could not bring home his culpability
in crime. Charge of section 9(1) of The Ain of 2000 fell through. Tribunal
was not at all justified in finding accused-appellant No.2 Md Wafiz
Mia guilty of offence of section 9(1) of Ain of 2000 and in passing
a judgement of conviction and sentence upon him and conviction in respect
of accused-appellant No.2 Md Wafiz Mia is liable to be knocked down
and a verdict of acquittal was required to be awarded upon him.
Decision
On a proper and correct analysis of evidences both, ocular and circumstantial,
it transpires that Tribunal was quite justified in rendering decision
that appellant No.1 Md Wasim Mia was the culprit who raped the victim
Champa Khatoon. There is no option but to maintain the well founded
judgement put down by Tribunal in awarding conviction and imposing penalty
upon him.
Advocate
Mr. Syed Ziaul Karim for the appellants and Mr. Md. Helal Uddin Molla,
Deputy Attorney General with Mr. Mohammed Abdul Baset, Assistant Attorney
General for the state.
