Saiful Islam Vs State (2019) 71 DLR 6

 

Fact:

Md Firoj Hossain alias Babu as informant lodged the First Information Report with Hatibandha Police Station of district Lalmonirhat on 5-11-2011 naming the present appellant Md Saiful Islam alias Babu as the sole accused alleging that he had married Mosammat Nargis Sultana alias Bilkis on 19-8-1999. After their marriage, they did not get any children. The accused Saiful Islam alias Babu is his sister's husband. Taking the loneliness of his wife accused tried to establish a hobnob relationship with his wife Mosammat Nargis Sultana alias Bilkis. On 25-7-2011 at 8-00 pm of the night since there was none in the house except victim Nargis Sultana, the accused having been in their house committed rape on his wife Mosammat Nargis Sultana Bilkis.The accused after committing rape threatened the victim not to disclose the fact to anyone, as a result, the victim did not disclose the said fact. Later on, since the victim became pregnant months, on his query victim told the occurrence of rape to him, thus he lodged the FIR.

Issues:

1. whether there happened any incidents of rape?

2. How the court shall determine that the woman has been raped?

3. If it will be proven that the accused is not guilty of rape, what will be the consequences of the case?

Decision:

The statements of the victim were made under Section:22 of the Nari-o-Shishu Nirjatan Doman Ain 2000, before Magistrate and other materials on record. From the record, it appears that during the investigation victim Mosammat Nargis Sultana made a statement under section 22 of the Ain 17- 11-2011 before Senior Judicial Magistrate Lalmonirhat. The said statements run as follows: "Misunderstanding me, my husband Feroz Hossain filed a case against the accused Saiful Islam under the Prevention of Torture against Women and Children Act. Accused Saiful Islam is my nandia. I have no illicit relationship with him. The child that came into my womb was my husband's child. I miscarried 10/12 days ago. this is My statement". From the above statements of the victim, it appears that the victim in very clear language stated that her husband Firoj Hossain filed the case on some wrong assumption, she had no illicit relation with the accused and she became pregnant by her husband but the said pregnancy has been ended through abortion.

Justification:

In a case of rape, the statement of victim deserves the paramount consideration. Nari-o-Shishu Nirjatan Doman Ain 2000, Section: 9(1), In a case of rape, the statement of the victim deserves paramount consideration. When the victim herself is saying that nobody committed rape on her it is not the duty of the Court to impose aspersion on her chastity that she had become the victim of rape. It is an assault on the womanhood of a woman.

From the statements of the victim, it appears to us that the victim is the best person to say whether she is a victim of a rape or not, and when a victim before a Magistrate testifies that she did not become the victim of any rape by any particular accused there cannot be any charge against such an accused. The Investigating officer at his turn found that the victim and her husband have been passing conjugal life for the last 10/12 years and within this long period the victim became pregnant repeatedly but every time it has been ended through natural abortion but whenever very recently the victim became pregnant, the husband of the victim suspected his own sister in law and thereafter filed the case.

The Court or Tribunal should not as an instrument be used to fulfill the evil desire of a particular person to take revenge against his opponent.

Written by---
Rahat Amin
Department of Land Management and Law
Jagannath University