Shamsul Haque V. State (2000) 52 DLR

Fact:

Hena, (daughter of the accused) established friendship with Sanwara begum (the victim). She took Sanwara to her residence (1-11-89). That after night meal, Hena and Sanwara slept together on floor and the accused (Shamsul Haque) and his wife (Anwara Begum) on choki at night. After sleep, the accused came down from choki, and violates Sanwara at which she tried to move and shout and then his wife came down from choki and caught her hands and pressed her month and the appellant forcibly put off her half pant and violate her and again next day (2-11-89). After that, when on the date of 3-11-89, she came to home and narrated the incident to informant. The informant filed case against accused (Shamsul Haque), Additional Session Tribunal Judge, Jamalpur, convicting and sentencing the accused and punished under section 376 of the penal code.

 

Issues:

Whether the appellant convicting and sentencing under section 376 of penal code will discharge or not?

 

Decision:

The appeal is allowable and the appellant is acquitted from the charge against him, and discharge from convicting and sentencing under section 376 of penal code.

 

Justification:

From the evidence it is difficult to draw a clear conclusion of violence of victim girl by the accused appellant. When the victim do medical examination, the examiner expressed that there was not any mark of violence but ruptured and see that by the x –ray the age of victim girl age [12] years and the previous trial court has not assessed the evidence properly on behalf of victim and we find it unsafe to convict the appellant. The victim has neither state nor corroborated statement and also not corroborated nor stated by the victim herself before magistrate in her statement under section 164 of the code of criminal procedure.

It is highly unlikely and unnatural that a father will violate a minor friends of his own minor daughter with the help of mother of their daughter and here the accused friend (hena) is not examined. The mystery of lodging FIR at about zero hour and no one seize wearing cloth of the victim girl. In the case held that carnal offence the prosecution is to be believed in awarding conviction to the offender even without martial corroboration, if his evidence is found believable and trustworthy and does not suffer from any infirmity and inherent disqualification.

 

Case reference:

1. Akter Hossain and Others V. State 4 BLC 236

2. Abdul Wahed alias Chandra Mia V. State 4 BLC 320

Written by---
Salma Akter
Department of Land Management and Law
Jagannath University, Dhaka