Rehana Begum and another vs State (2011) 63 DLR

Fact:

Asma Khatun who a 17 years old girl was raped by three grown up men named Nurudin, Md. Fazlul Haque and Md. Jamaluddin and another accused Rehana Begum, wife of accused Jamal abetted and instigated in committing the rape. After that, when the news spreaded in the locality, out of humiliation Asma committed suicide by drinking poison. Victim’s father lodged a FIR two days after the Commission of rape. Prosecution witnesses 1,2,3 in the case were respectively victim's father, her mother and her sister who made statements about the fact of rape and suicide because Asma came directly to her home after the commission of rape on her and her mother and sister saw her torn dresses and her sister saw the marks of injuries on her body and female organ. 

Issues:

1) Whether the delay in lodging the FIR will be considered as material defect in the case?

2) Whether the testimony of prosecution witnesses 1-3 can be relied on as they are the relatives of the victim?

3) Whether the accuseds will be convicted only for the rape or for the suicide as well as rape?

 

Decision:

The accuseds were sentenced to suffer rigorous imprisonment for life and to pay a fine of taka 1, 00,000 each under Nari-o-Shishu Nirjatan Daman Ain 2000 which was passed by the Nari-o-Shishu Nirjatan Daman Tribunal.

Justification:

Issue 1: It will not considered as a defect. It was held that delay in lodging FIR when sufficiently explained is not fatal. Specially in the case of rape that not only can lead to termination of the life of victim but also compels a lot of victims and their families to keep the fact suppressed fearing social humiliation or preventing breaking a family or being unwilling to go to police or for a averting medical examination etc. The delay, if any, in lodging FIR in a rape case is always intelligible. This has been aptly dealt with by the Supreme Court of India in a case, holding that mere delay in lodging FIR cannot be a ground to through the prosecution case.

Issues 2: On this point, the court held that only because of relationship witness evidence cannot be thrown away unless the evidence is found to be untrue or tainted by motive. Where a witness is a natural witness to the occurrence and her evidence is consistent and it inspires confidence to accept her evidence to be truthful, her evidence alone is sufficient to base conviction. Similarly, there is no hard and fast rule that the evidence of a partisan witness cannot be acted upon without corroboration. If his presence at the scene of occurrence cannot be doubted and his evidence is consistent with the surrounding circumstances and the probabilities of the case strikes the case as true, it can be good foundation for conviction, more so if some assurance for it is available from the medical evidence.

Issue 3: The accuseds will be convicted both for the rape and suicide. The conviction for suicide was justified in the way that the court first examined sub section 3 of section 9 of the Nari-O-Shishu Nirjatan Daman Ain 2000.

Whether the death can be homicidal or suicidal. There is no requirement, unlike sub section (2) of section 6 of the Nari-o-shishu Nirjatan (Bishes Bidhan) Ain 1995, that the death of the victim should be caused by the rapist himself. In a case of rape where the victim commits suicide, as a result of committing rape on her, the expression “any of the circumstances of the transaction which resulted in death occurred in sub section 1 of section 32 of the Evidence Act 1872, refers to the fact of rape resulting to the commission of suicide by the victim.

Cases cited:

1. Nurjahan vs State 42 DLR (AD)

2. State vs Rashid Ahmed 54 DLR 333

3. Salim vs State 54 DLR 359

4. Abdul Halim vs State 6 BSCD 185

5. Arshed Ali Mirza vs State 7 BLC 265

6. Karam Ali vs State 54 DLR 378

7. Abdur Rahman vs State 8 BLT

8. Birdhichand Sarda vs State of Maharashtra (1984) SCC (Cr) 487

9. Ratan Singh vs State of Haryana Prodesh

10. Mostafa vs State 1 BLC 82

11. State vs Abdul Hatem 56 DLR 431