Horon vs State (2018) 70 DLR 524

Fact:

On the date of 30-04-2007 Said Ahmed sent his 12-year-old daughter to the betel leaf shop. On this night when the daughter was returning home alone was raped. On the date 8-5-2007, the victim’s father lodged a complaint to the police station. The Lower court convicted the appellant under section 9(1) of the Nari O Shishu Nijaton Daman Ain 2000 and sentenced him to rigorous imprisonment for life.

 

Issue:

1. Does the medical report support the prosecution’s history of rape?

2. Was there any chemical examination done with regard to the seized wearing salwar, orna, and mat?

3. The delay of 8 days in lodging the FIR. Is it properly explained by the prosecutions?

4. Can the statement of the victim to the magistrates be substantive evidence?

 

Decision:

In the FIR the prosecution has assigned the motive of rape of the victim at the instance of the appellant but the court does not find such motive of the appellant to commit rape. There have been no eyewitnesses. There are many contradictions in the evidence of the prosecution witnesses. The absence of a sign of rape in the medical report and the non-examination of wearing cloth and Matt the whole case most doubtful and the prosecution totally failed to prove it. The appellant is not found guilty of the charge.

 

Justification:

1. The penal code 1860 section 375 defines the definition of rape. Penetration is to constitute the sexual intercourse necessary to the offense of rape. to be a rape there must be forceful sexual intercourse. The medical officer who physically examined the victim said that they did not find any sign of violence on the body of the victim. The medical board opined that no sign of sexual intercourse was found on the victim.

2. No chemical examination was done with Regard to the seized wearing salwar, Orna, and mat.

3. The delay of 8 days in lodging the FIR also creates serious doubt about the prosecution story. The prosecution failed to prove the time, place, and manner of the occurrence.

4. The victim gives her statement to the magistrate under Section: 22 of the Ain 2000. The Learned Judge assumed a piece of substantive evidence without examining the eye witness of the case. The Appellant Court said that the statement of the victim made before the magistrate under section 22 of the Ain 2000, cannot be substantial evidence unless the maker of the statement proves it in court or Tribunal.

Written by---
Md. Sobuj Ali
Department of Land Management and Law
Jagannath University, Dhaka