Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain [XVIII of 1995]
Section 2(ঘ) read with Penal Code
Section 375-Mere penatration is suf- ficient to constitute rape.
It has been settled by so many decisions of the apex courts of this region that even complete penetration is not essential to constitute rape and even partial penetration with or without emission of semen and rupture of hymen is sufficient to constitute rape. It may be mentioned here that section 2(N) of the Nari-O-Shishu Nirjatan (Bi- shesh Bidhan) Ain, 1995 has explained 'rape' thus: "ধর্ষণ" শব্দটি Penal Code (Act XLV of 1860)-এর section 375 এ উল্লেখিত "rape" শব্দটির ন্যায় একই অর্থ বহন করিবে।" According to section 375 of Penal Code mere penatration is sufficient to constitute rape. Syed Sajjad Mainuddin Hasan @ Hasan -Vs.- The State (Criminal) 9 ALR (AD) 189-212
Sections 4 and 10
The law is well settled that there must be some circumstances of a compelling nature together with prolonged custody which would merit consideration for commutation. ...Anowar Talukder Vs. The State, (Criminal), 17 SCOB [2023] AD 69
Sections 4 and 10
The condemned prisoner has been languishing with the agony of death in the condemned cell for almost 18 years not due to any fault of his own. That being the situation, the fact of prolonged incarceration together with the discussion that we made above fortified with the recently passed decision of this Division can be considered as a mitigating circumstances and for that reason we are inclined to modify the order of sentence and commute the sentence of death to that of imprisonment for life. ...Anowar Talukder Vs. The State, (Criminal), 17 SCOB [2023] AD 69
Section 4
Prosecution has been able to prove its case beyond all reasonable doubt– Upon considering the entire materials on record and the evidence of all the 12 (twelve) prosecution witnesses, and considering the circumstantial evidence that the accused was found present at the house upon setting fire on the person of the victim and he was caught red handed and tied up by the local people immediately after the occurrence and handed over to the police. This speaks a volume about the prevailing circumstances as perceived by the people of the locality. Appellate Division holds that the prosecution has been able to prove its case beyond all reasonable doubt and the High Court Division did not commit any illegality in passing the impugned judgment and order and, as such, it does not call for any interference. .....Mahbubul Alam (Md) =VS= State, (Criminal), 2022(2) [13 LM (AD) 300]
Sections 4 and 10
The Code of Criminal Procedure
Section 35A
Sentences in respect of similar nature of offences are changed by the Nari-O-Shishu Ain of 2000, therefore, our judicial conscious pricks when under the previous Ain, 1995–– The condemned prisoner has been languishing with the agony of death in the condemned cell for almost 18 years not due to any fault of his own–– Under the previous Ain, 1995 sentence of death is the only punishment for an offence under sections 4 and 10 of the Ain, but subsequently Ain, 2000 made provisions for imprisonment for life for the same offence. But the petitioner have been convicted and sentenced to death. With the repeal of Ain of 1995, the sentences prescribed therein in respect of similar nature of offences are changed by the Ain of 2000, therefore, our judicial conscious pricks when we note that under the previous Ain, 1995, no option other then sentence of death was available to the court.
The condemned prisoner has been languishing with the agony of death in the condemned cell for almost 18 years not due to any fault of his own. ––The Criminal Review Petition No. 03 of 2020 is dismissed. The sentence of death of the petitioner, Anowar Talukder is commuted to imprisonment for life and also to pay a fine of Taka 50,000/- (fifty thousand), in default, to suffer rigorous imprisonment for 5 (five) years more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. .....Anowar Talukder =VS= Deputy Commissioner, Madaripur, (Criminal), 2023(1) [14 LM (AD) 321]
Sections 6 (1) and 14- Reasonable doubt.
The Appellate Division has observed that the story of rape itself gives rise to a grave suspicion implicating the accused, as such it will be fully within the domain of the appellate court to acquit the accused. Moreover, the reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person. (Majority view)
আপীল বিভাগ লক্ষ্য করেছেন যে, আসামীকে জড়িয়ে ধর্ষনের যে গল্প তৈরী করা হয়েছে সেটিতে মারাত্বক সন্দেহ সৃষ্টি হয়েছে এবং সেজন্য আসামীকে খালাস দেওয়ার ব্যাপারে আপীল কোর্টের পূর্ণ এখতিয়ার রয়েছে। তাছাড়া আসামীর কবজা থেকে "Victim" বা ক্ষতিগ্রস্ত ব্যক্তিকে মুক্ত করার পরও প্রাথমিক তথ্য বিবরণ বা F.I.R করার ব্যাপারে যে অনাকাঙ্খিত বিলম্ব করা হয়েছে, সে ব্যাপারে যথাযথ ব্যাখ্যা দেওয়া হয় নিঃ কাজেই অভিযোগকারিনীর দেয়া সাক্ষ্য বিবেচনা করা খুবই কঠিন কারণ, সেটি যক্তিসংগত সন্দেহের উর্ধে নয় যেটি একজন আসামীকে দন্ডদানের ক্ষেত্রে একটা মৌলিখ চাহিদার বিষয়। (সংখ্যাগরিষ্ট মত) The State-Vs.-Mostafizur Rahman and another 6 ALR (AD) 2015 (2)205
Sections 6(1)/14-Rape The story of rape itself gives rise to a grave suspicion implicating the accused, as such it will be fully within the domain of the appellate court to acquit the accused. The reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, as beyond any reasonable doubt which is the fundament requirement of conviction. (PER MD ANWARUL HAQUE J, MAJORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218
Sections 6(1)/14-Rape The story of rape itself gives rise to a grave suspicion implicating the accused, as such it will be fully within the domain of the appellate court to acquit the accused. The reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, as beyond any reasonable doubt which is the fundament requirement of conviction. (PER MD ANWARUL HAQUE J, MAJORITY) State vs Mostafizur Rahman, 67 DLR (AD) 218
Section 6(2)- Since Ain, 1995 by its section 6(2) has made these two offences punishable with one sentence of death and since this Ain of 1995, has been given overriding effect these two offences i.e. commission of rape and thereafter causing death of the victim of rape cannot be said "two distinct and separate offences". Syed Sajjad Mainuddin Hasan @ Hasan vs State, 70 DLR (AD) 70
Sections 6(2)(4)-Death-Since the only sentence is provided for the offence the courts will be left with no option other than to award the death sentence. This is totally inhumane and illogical. A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. BLAST vs State, 67 DLR (AD) 185
Section 6(2)(4)- Until new legislation is made the imposition of sentence in respect of offences in sub-section (2) and (4) of section 6 of the Ain of 1995 shall be regulated by the Nari-o-Shishu Nirjatan Daman Ain, 2000. BLAST vs State, 67 DLR (AD) 185
Section 6(2)(4)-The provisions of sub-sections (2) and (4) of section 6 deprive a tribunal from discharging it's constitutional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus, there is no gainsaying that sub-sections (2) and (4) of section 6 of the Ain as well as section 303 of the Code run contrary to those statutory safe-guards which give a tribunal the discretion in the matter of imposing sentence. BLAST vs State, 67 DLR (AD) 185
Section 6(4)-This provision is so vague and indefinite that the courts cannot have any discretionary power to exercise its discretion particularly in a case where there is no direct evidence for causing rape and the case rests upon circumstantial evidence. However, if the courts find that the circumstances are such that the offenders are responsible for causing the rape to the victim, it will be logical to award the death sentence to all in the absence to direct evidence. In all cases while awarding a sentence of death which is a forfeiture of life of a person, the court always insists upon the direct evidence. In the absence of direct evidence it is very difficult to come to the conclusion that all the accused had sufficient mens rea in the act of rape. But since the only sentence is provided for the offence the courts will be left with no option other than to award the death sentence. BLAST vs State, 67 DLR (AD) 185
Section 6(2)- Since Ain, 1995 by its section 6(2) has made these two offences punishable with one sentence of death and since this Ain of 1995, has been given overriding effect these two offences i.e. commission of rape and thereafter causing death of the victim of rape cannot be said "two distinct and separate offences". Syed Sajjad Mainuddin Hasan @ Hasan vs State, 70 DLR (AD) 70
Sections 6(2)(4)-Death-Since the only sentence is provided for the offence the courts will be left with no option other than to award the death sentence. This is totally inhumane and illogical. A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. BLAST vs State, 67 DLR (AD) 185
Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, (XVIII of 1995]
Section 6(2) read with
Nari-0-Shishu Nirjatan Damon Ain [VIII of 2000]
Section 34
The Appellate Division held that-
(a) Sub-sections (2) and (4) of section 6 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sub-sections (2) and (3) of section 34 of the Nari-O- Shishu Nirjatan Daman Ain, 2000 and section 303 of the Penal code are declared ultravires the Constitution.
(b) Despite repeal of the Ain of 1995, the pending cases and pending appeals in respect of those offences shall be tried and heard in accordance with the provisions of the Ain of 1995, but the sentences prescribed in respect of similar nature of offences in the Ain of 2000 shall be applicable.
(c) There shall be no mandatory sentence of death in respect of an offence of murder committed by an offender who is under a sentence of life imprisonment.
Bangladesh Legal Aid and Services Trust (BLAST) and others-Vs.- Bangladesh. 6 ALR (AD) 2015 (2)01
Section 6(2)(4)- Until new legislation is made the imposition of sentence in respect of offences in sub-section (2) and (4) of section 6 of the Ain of 1995 shall be regulated by the Nari-o-Shishu Nirjatan Daman Ain, 2000. BLAST vs State, 67 DLR (AD) 185
Section 6(2)(4)-The provisions of sub-sections (2) and (4) of section 6 deprive a tribunal from discharging it's constitutional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus, there is no gainsaying that sub-sections (2) and (4) of section 6 of the Ain as well as section 303 of the Code run contrary to those statutory safe-guards which give a tribunal the discretion in the matter of imposing sentence. BLAST vs State, 67 DLR (AD) 185
Section 6 (2) read with Evidence Act
Section 114 (g) Criminal Trial (Benefit of Doubt)
No independent witness was examined, no neighbouring witness was examined, one witness stated that he could not say which clothes were worn by the ac- cused, later stated that the accused wore pant and shirt, another witness stated that accused wore lungi and gangi, no sign of rape was there while the victim was examined by the doctor, the seized clothes were not sent for examination, the victim's two children were old enough to give evidence in support of the prosecution case, but were not cited in the charge-sheet nor produced as wit- nesses, Appellate Division held that the prosecution failed to prove the case beyond all reasonable doubt, and the ac- cused is entitled to get benefit of doubt.
The Appellate Division observed that it appears that in all 9 PWs were examined on behalf of the prosecution. Among them no independent witness was there, all are interested witnesses. And no neighbouring witness was also examined in this case. PW2 Md. Fazlur Rahman stated that he could not say which clothes were worn by the accused. Again he said that the accused was wearing pants and shirt at that time. But PW3 Md. Mokbul Hossain stated that accused Amzad wore lungi and gangi at that time. This contradiction being a vital one was not considered by the Courts be- low. Moreover, no sign of rape was there while the victim was examined by the doctor. Investigation officer PW9 himself admitted that the seized clothes were not sent for examination. PW-6 Md. Jahirul Islam was declared hostile for not sup- porting the prosecution case. The victim's two children were old enough to give evi- dence in support of the prosecution case, but were not cited in the charge sheet nor produced as witnesses in the case and no explanation was given for their non-pro- duction. As such Appellate Division is of the opinion that the prosecution failed to prove the case beyond all reasonable doubt, and the appellant is entitled to get benefit of doubt. Thus the appeal is allowed. Amzed Hossain Dulal. Vs.- The State. (Criminal) 9 ALR (AD) 216-219
Sections 6(3) and 9(ga)- The offence of rape failed but from the evidence on récord it transpired that the appellants committed immoral acts with respect to the women. Rajib Kamrul Hasan vs State 53 DLR (AD) 50.
Section 6(4)-It is not necessary to prove individual overt act to connect them with the offence under section 6(4) which provides for punishment both for individual as well as for constructive liability of a gang. It is pertinent to note the word 'gang' and the words 'cause death' as has been used to make not only the acts but also omission as defined in section 32 of the Penal Code punishable under section 6(4) of the Act. Moinul Haque vs State 56 DLR (AD) 81.
Section 6(4)-This provision is so vague and indefinite that the courts cannot have any discretionary power to exercise its discretion particularly in a case where there is no direct evidence for causing rape and the case rests upon circumstantial evidence. However, if the courts find that the circumstances are such that the offenders are responsible for causing the rape to the victim, it will be logical to award the death sentence to all in the absence to direct evidence. In all cases while awarding a sentence of death which is a forfeiture of life of a person, the court always insists upon the direct evidence. In the absence of direct evidence it is very difficult to come to the conclusion that all the accused had sufficient mens rea in the act of rape. But since the only sentence is provided for the offence the courts will be left with no option other than to award the death sentence. BLAST vs State, 67 DLR (AD) 185
Section 6(4) read with Cr. PC
Section 164 and 364 Confessional statement of accused relating to admission of his guilt for commission of rape and murder when found to be voluntary and true the same can well be the basis of conviction, because truth is the essence of evidence.
The Appellate Division observed that the voluntary confessional statement of the accused, his admission of commission of the offence categorically falls within the ambit of the provision of section 6(4) of the aforesaid Ain for which the trial Court rightly found him guilty. Confessional statement of accused Haris relating to admission of his guilt for commission of rape and murder when found to be voluntary and true the same can well be the basis of conviction, because truth is the essence of evidence. In the instant case the chain of events as has been admitted by the confessing accused leading to rape on her and murdering the victim in course of commission of rape has been well established beyond all reasonable doubt. So the confessional statement cannot be discarded under any circumstances in the present case. Moreover, PW-17, the confess-ional statement recording Magis- trate, having proved to have recorded the same in accordance with law upon complying with all the official formalities and the provisions of section 164 and 364 of the Criminal Procedure Code and the same being true and voluntary being not influenced or obtained by applying any force or torture, it cannot be said that the conviction and sentence imposed by the trial Court was erroneous. The State. -Vs. Haris son of Hasen Ali of Village-Esartak, PS- Belab, District- Narsingdi. (Criminal) 12 ALR (AD) 44-49
Section 6(4)
Code of Criminal Procedure, 1898
Section 35A
Nari O Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995
Section 6(4)
Modified sentence with get the benefit of section 35A of the Cr.PC.– It is found that the appellant Anowar Hossain has been in the condemned cell for more that 22 (twenty two) years suffering the pangs of death. There are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death. The appeal is dismissed and the sentence of the appellant is commuted to imprisonment for life and to pay a fine of Tk.5,000.00, in default, to suffer imprisonment for 15(fifteen) days more. The appellant shall get the benefit of section 35A of the Code of Criminal Procedure, 1898 and remission as per law. ...Anowar Hossain =VS= The State, (Criminal), 2021(2) [11 LM (AD) 150]
Section 6(3)
In sub-section (3) of section 6 of the Ain of 1995, if similar offence is committed by more than one person all of them will be sentenced to death. Suppose 5 persons are involved in the commission of the crime of them two directly participated in the commission of rape and other three persons abeted the offence. If these three persons are sentenced to death with other two, it will be contrary to norms and the sentencing principles being followed over a century. …BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 286]
Section 6(4)
Sentence of death commuted to life imprisonment–
The High Court Division committed serious error of law in discarding the confessional statement and the finding that ‘the confessional statement of the condemned prisoner is neither voluntary nor true and it is liable to be rejected as a whole’ is also erroneous and as such the order of acquittal of the accused respondent herein is thus also erroneous and illegal. This criminal appeal is allowed. But the sentence of death passed by the trial Court is commuted to life imprisonment relying on the principle laid down in BLAST Vs. Bangladesh(67 DLR(AD)185). .....The State =VS= Haris, (Criminal), 2018 (1) [4 LM (AD) 517]
Sections 6 (1)/14
In the facts of the instant case, a 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (Minority View) .....The State =VS= Mostafizur Rahman & another, (Criminal), 2016-[1 LM (AD) 562]
Sections 6 (1)/14
In facts, the story of rape itself gives rise to a grave suspicion implicating the accused, respondent; as such it will be fully within the domain of the appellate court to acquit the accused. Moreover, the reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person(Majority View) .....The State =VS= Mostafizur Rahman & another, (Criminal), 2016-[1 LM (AD) 562]
Section 6(1)
Bail of accused in a case of rape of minor girl when medical report does not show any sign of rape - The High Court Division granted bail to the accused in a rape case of minor girl of 4-5 years old as the medical report does not show any sign of rape. Apex court finds nothing wrong with the same. State Vs. Md. Liton Miah @ Babu 13 MLR (2008) (AD) 60.
Section 6(3)
While considering the police report (FRT) the Special Tribunal heard the learned Advocates of the parties and on perusal of the record and case diary took cognizance, of the offence after observing that a prima facie case was made out by the prosecution but the Tribunal could not agree with the opinion of the IO and took cognizance on the basis of the materials on record. Bikish Miah vs State 3 BLC (AD) 182.
Section 6(2)
Death is proper punishment for rape and murder-When the charge of commission of rape and murder of victim girl is proved beyond doubt, death is the appropriate punishment. Azad Mia alias Md. Azad Vs. The State,7 MLR (2002) (AD) 22.
Section 6(4)
For the offence of rape and murder, the proper sentence is death—
In case of custodial death the custodian has to explain the circumstances under which the victim died—
When it is established that the victim was taken to the custody of the accused in the dead hours of the night and in the following morning her dead body was found with injuries on throat and her private parts with sign of rape and the explanation offered being not satisfactory the sentence of death has been held by the apex court as perfectly justified. Mainiri Haque and another Vs. The State., 9 MLR (2004) (AD) 321.
Section 6(2) r/w
Penal Code, 1860
Section 375
Capital punishment–– Under section 6(2) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 is capital punishment only. But in a recent judgment, this Division held that in appropriate cases, the sentence of death may be commuted to punishment for life. But on the facts and circumstances of the case, the condemned-appellant does not deserve any sympathy whatsoever. In this connection reliance may be made on the case of Laxman Naik vs State of Orissa (1994) 3 SCC 381 wherein the Supreme Court of India confirmed the death sentence of a perpetrator for the offence of rape followed by murder of a 7 year old girl by her own uncle. The Court opined that the accused seems to have acted in a beastly manner. After satisfying his lust, he thought that the victim might expose him for the commission of offence on her to her family members and others, therefore, the accused with a view to screening the evidence of the crime, put an end to the life of that innocent girl. The Court noticed how diabolically the accused had conceived his plan and brutally executed it in such a calculated cold blooded and brutal murder of a very tender age girl after committing rape on her which, according to the Court, undoubtedly falls in the rarest of rare case attracting none other than capital punishment. ––The sentence of death imposed upon the condemned-appellant Md Sukur Ali passed by the Tribunal and confirmed by the High Court Division is maintained. .....Sukur Ali (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD) 289]
Section 6(3)
In sub-section (3) of section 6 of the Ain of 1995, if similar offence is committed by more than one person all of them will be sentenced to death. Suppose 5 persons are involved in the commission of the crime of them two directly participated in the commission of rape and other three persons abeted the offence. If these three persons are sentenced to death with other two, it will be contrary to norms and the sentencing principles being followed over a century. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1
A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1
A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1
Section 6(2) and (4)
Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed. ...BLAST & Others Vs. Bangladesh & Others, (Civil), 1 SCOB [2015] AD 1
Section 8(1)- Morality cannot be le- gislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heart- less.
The Appellate Division observed that the High Court Division noticed that P.W.6 Abdul Baset is not the full brother of P.W.2, Nazma and that P.W:7, Begum is not the mother of the victim; rather P.W.7 is the step mother of the victim. With refer- ence to the affidavit filed by the petitioners, the High Court Division found that the pe- titioners tried to impress upon that the vic- tim of her own volition went to the brothel but that the said affidavit was neither prop- erly exhibited nor was it filed in the trial Court and that the victim denied making any affidavit. The High Court Division having considered the evidence of doctor, P.W.9 and the medical report, exhibit-1 found that the age of the victim was about 17 years on the date of her examination and that the victim in her evidence claimed that she was about 13 or 14 years old. The finding of the doctor as to age is belied by the fact that his report shows the taking place of menarche one year back. In con- text of development of girls in Bangladesh the age stated by the victim would be more commensurate with menarche having started one year previously. The accused- petitioners having no morality could dare to sell the victim-P.W.2, Nazma to a bro- thel. They were convicted under section 8(1) of the Nari-O-Shishu Nirjatan (Bi- shesh Bidhan) Ain, 1995 and sentenced them to suffer imprisonment for life. The order of conviction and sentence was rightly affirmed by the High Court Divi- sion. Accordingly, criminal petition for leave to appeal is dismissed. Sukur Mahmood and others. -Vs. The State (Criminal) 8 ALR (AD) 144-147
Section 8(1)
The Appellate Division observed that the High Court Division came to a finding that the petition of complaint was lodged on 30.11.1998 and that the FIR was lodged on 01.12.1998 and that while she was recovered from the brothel on 30.11.1998, police went to the brothel on 29.11.1998 on the basis of G. D. No. 1398 dated 30.11.1998 which was made for the security of the victim and that after recovery of the victim, the FIR was lodged. The High Court Division further found that P.W.1, the informant and P.W.2, the victim and P.Ws.4 and 5 deposed that the accused took the victim with a promise to give her job and without doing so they sold her to a brothel and that there was no contradiction in the evidence of the victim and that of her father, P.W.1. Sukur Mahmood and others. -Vs.-The State. 4 ALR (AD) 2014 (2) 81
Section 9(ka)
Offence of immoral act punishable under section 9(G)—
Taking nude photographs of victims by force for the purpose of black mailing is highly immoral act.—
When major charge of rape fails accused may be punished for minor offence of immoral act. No observation on extraneous matter not relevant to the merit of the case should be made in the Judgment against outsider.
In a case charge of rape when fails, the accused who took nude photographs of the victim by force may well be punished under section 9(G) of the 1995 Ain when such a highly immoral act Is proved beyond doubt though no charge was framed therefore. Since the accused were fully aware of the details of the occurrence and cross examined the prosecution witnesses on this point, such conviction is perfectly maintainable as no prejudice was caused to the accused. Rajib Kamrul Hassan and three others Vs. The State, 6 MLR (2001) (AD) 70.
Section 10(1)
Punishment for murder of wife for dowry-Circumstantial evidence can well be relied upon—
Husband when living with wife in the same house has to explain as to how his wife is murdered. Failure to offer satisfactory explanation points to the guilt of the accused husband. When inmates of the house of the accused do not come to support the prosecution case, circumstantial evidence can well be relied upon to base the conviction. In the case of murder of wife for dowry sentence of death is the appropriate sentence. Abdul Matleb Howlader Vs. The State— 5 MLR(2000) (AD) 362.
Section 10(1)
The Evidence Act, 1872
Section 27
Nari-0-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
Section 10(1)
The accused is entitled to benefit of doubt not as a matter of grace but as of right– Appellate Division finds that the concept of benefit of doubt is deep-rooted in every legal system for giving benefit to the accused. It is not necessary that there should be many circumstances creating doubt. If there is a single circumstance which creates reasonable doubt for a prudent mind about the guilt of accused, then the accused would be entitled to the benefit of such doubt not as a matter of grace but as a matter of right. The Judges of the High Court Division as well as the trial Court have not considered the material discrepancies, contradictions and omissions of witnesses for which an error has crept in the trial Court’s judgment resulting in the conviction of the appellants. On consideration of the evidence, the appellants are held to be entitled to the benefit of doubt and are liable to be acquitted. .....Ramjan Ali(Md.) =VS= The State, (Criminal), 2022(1) [12 LM (AD) 545]
Section 10(1)- Even if there was no specific mention of demand of dowry in the relevant Material Exhibit, having the trial Court made observation on reading the writings in the diary in its entirety, it cannot be said that the fact of torturing the victim for not meeting the demand of dowry was totally absent: majority decision dictated by Md Ruhul Amin J. Abul Kalam Azad alias Ripon vs State 58 DLR (AD) 26.
Section 10(1) read with Cr. PC
Section 173-The Appellate Division observed that the High Court Division rightly found that the alleged demand of dowry by the accused Md. Abu Taher from Shafali Begum and the case of the prose- cution that the accused Md. Abu Taher murdered his wife Shafali Begum on de- mand of dowry have not been proved at all by any evidence. In the circumstances the High Court Division rightly found that this case did not come within the ambit of sec- tion 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995. How- ever, the High Court Division, on pointing out some facts and circumstances including marks of injuries on the dead body of Sha- fali Begum and the postmortem examina- tion report and the admitted fact that Sha- fali Begum met her unnatural dead at the house of her husband accused Md. Abu Taher, sent back the case to the court below for the purpose of fresh trial under the Penal Code provided the cognizance Magi- strate himself, on consideration of the po- lice report submitted under section 173 of the Code of Criminal Procedure, finds in- gredients for taking cognizance of the case against the accused under the Penal Code. The State Vs. Md. Abu Taher. (Crimi- nal) 14 ALR (AD) 60-63
Section 10(1)
The accused is entitled to benefit of doubt not as a matter of grace but as of right– Appellate Division finds that the concept of benefit of doubt is deep-rooted in every legal system for giving benefit to the accused. It is not necessary that there should be many circumstances creating doubt. If there is a single circumstance which creates reasonable doubt for a prudent mind about the guilt of accused, then the accused would be entitled to the benefit of such doubt not as a matter of grace but as a matter of right. The Judges of the High Court Division as well as the trial Court have not considered the material discrepancies, contradictions and omissions of witnesses for which an error has crept in the trial Court’s judgment resulting in the conviction of the appellants. On consideration of the evidence, the appellants are held to be entitled to the benefit of doubt and are liable to be acquitted. .....Ramjan Ali(Md.) =VS= The State, (Criminal), 2022(1) [12 LM (AD) 545]
Section 10(1)
So far the findings relating to demand of dowry by the petitioner from the father of deceased Aklima has not been established by any reliable evidence and as such the Appellate Division is unable to agree with the same. Accordingly the judgment and order of conviction and sentence passed under section 10(1) of Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 is liable to be set aside and the petitioner is convicted and sentenced under section 302 of the Penal Code.
The judgment and order passed by the Appellate Division in Jail Petition No. 8 of 2010 preferred by petitioner Raju Ahmed @ Raja Mia is reviewed and set aside. His order of conviction and sentence of death under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is set aside. However, he is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life and also to pay a fine of Tk. 1,000/- (one thousand) in default, to suffer rigorous imprisonment for 01 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. ...26 [31 ALR (AD) (2024) 18]
Sections 13 and 14
Offence of kidnaping for ransom
read with
Evidence Act, 1872
Section 118- Child witness is competent when found capable of proper understanding
Telephonic conversation recorded leading to the arrest of the accused and recovery of the victim supported by ocular evidence can well form the basis of conviction. The conviction and sentence based on consistent and reliable evidence on record to the exclusion of any reasonable doubt affirmed by the High Court Division are held by the apex court perfectly justified. Jasimuddin and another Vs. The State 11 MLR (2006) (AD) 162.
Section 17-No finding has been given by the Adalat that the FIR and the charge sheet and the examination of witnesses under section 161 CrPC do not disclose any offence against the petitioners under the Act or that even if those papers disclose an offence, there is no material to connect the petitioners with the offence alleged. Without such finding the Adalat cannot fail to take cognizance of the offence. Mohiuddin vs Md Motiur Rahman 50 DLR (AD) 4.
Section 17-The investigating officer is absolutely an unauthorized and unwarranted person. to initiate any proceedings under the provision of section 17 of the Ain. Harabilash Mitra vs Sanjoy Biswas, 64 DLR 343
Section 17-Since specific provision has been made in for punishment of making false allegation, the provision of Code of Criminal Procedure and Penal Code will not be applicable for committing the offence punishable under section 17 of the Ain. Harabilash Mitra vs Sanjoy Biswas, 64 DLR 343
Section 17(2)- The word 'কোন ব্যক্তি' as used in sub-section (2) does not mean any person other than the person/persons against whom allegation was made to cause his injury which was found false after investigation or inquiry. The investigating officer of the case is a 3rd person in the proceeding or case. The investigating officer does not come within the meaning of the words 'কোন ব্যক্তির ক্ষতি করার অভিপ্রায়ে' and he has nothing to be aggrieved if after completion of the investigation he found that the allegations false, against whom it was made. Harabilash Mitra vs Sanjoy Biswas, 64 DLR 343
S. 20: Mandatory or Directory in nature. Sub-section 20(2) of section does not provide for an consequence for failure of the trial Court to conclude the trial within 120 days. The provision is not mandatory rather directory as held in Md. Delwar Hossain Vs. State 2006 BLD (AD) 109... Para 32.
Bar Council Vs. AFM Faiz, 1 CLR (2013)-AD-221.
Section 22-Statement of victim-The doctor as to age is belied by the fact that his report shows the taking place of menarche one year back. In context of development of girls in Bangladesh the age stated by the victim would be more commensurate with menarche having started one year previously. Sukur Mahmood vs State, 66 DLR (AD) 167
Section 24
Provides for appeal against conviction and sentence within 30 days. When provisions of appeal under the special law with special limitation are available application under section 561A Cr.P.C. for quashment of conviction and sentence does not lie. Sharifa Begum @ Sharu Bibi Vs. The State, 8 MLR (2003) (AD) 239.
