Act/Law wise: Judgment of Supreme Court of Bangladesh


Nari-O-Shishu Nirjatan (Bishes Bidhan) Ain, 1995
Section/Order/Article/Rule/Regulation Head Note
Section 2(N)

read with Penal Code
Section 375—Mere penatration is sufficient 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 (Bishesh Bidhan) Ain, 1995 has explained ‘rape’ thus: “ধরষণ” শব্দটি Penal Code (Act XLV of 1860)-এর section 375 এ উল্লেখিত “rape” শব্দটির ন্যায় একই অরথ 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 ....View Full Judgment

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 accused,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 witnesses, Appellate Division held that the prosecution failed to prove the case beyond all reasonable doubt, and the accused 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 supporting the prosecution case. 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 witnesses in the case and no explanation was given for their non-production. 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 ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 8(1)

Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.
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 reference to the affidavit filed by the petitioners, the High Court Division found that the petitioners tried to impress upon that the victim of her own volition went to the brothel but that the said affidavit was neither properly 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 context 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 brothel. They were convicted under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain,1995 and sentenced them to suffer imprisonment for life. The order of conviction and sentence was rightly affirmed by the High Court Division. Accordingly, criminal petition for leave to appeal is dismissed.
Sukur Mahmood and others. -Vs.- The State (Criminal) 8 ALR (AD) 144-147 ....View Full Judgment

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. ....View Full Judgment

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 prosecution that the accused Md. Abu Taher murdered his wife Shafali Begum on demand 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 section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995. However, the High Court Division, on pointing out some facts and circumstances including marks of injuries on the dead body of Shafali Begum and the postmortem examination report and the admitted fact that Shafali 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 Magistrate himself, on consideration of the police report submitted under section 173 of the Code of Criminal Procedure, finds ingredients for taking cognizance of the case against the accused under the Penal Code.
The State -Vs.- Md. Abu Taher. (Criminal) 14 ALR (AD) 60-63 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 (Md) and others vs Md Motiur Rahman and another 50 DLR (AD) 4 ....View Full Judgment

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. ....View Full Judgment