In Search of justice – An Untold story of accused
Few Days ago, when I was drafting a Declaration suit in our chamber, some family members of an accused came to visit my father, a practicing lawyer of District and Session Judge Court, Narayanganj with a criminal case. The case was filed under a single section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain (amendment) 2003 alleging “Gang Rape”.
The fact of the case in short is that the victim of the said case was the wife of the first accused and the other accused were her father-in-law, two brothers-in-law, and the Kazi (Marriage Register). The allegation under the said section was that there was a conflict of opinion with her husband because her husband used to quarrel with her regularly and torture her as well. So, she went to the marriage register office for the “Nikah Nama” so that she can file a criminal case against her husband but The Kazi refused to provide “Nikah Nama” because the Kazi was familiar with the accused.
That’s why She filed a criminal case under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain (amendment) 2003 by alleging that her husband, brothers in Law, father-in-law, and the Kazi raped her multiple times. But she failed to submit a medical certificate regarding her statement which is a vital supporting document for gang rape victims.
After a valuable bail hearing, The Learned Magistrate Court, considering the fact and the error of application of laws, granted bail for the three accused among five. The Magistrate said that the victim came with an allegation of “Gang Rape” but there was absence of section 30 of the Nari-O-Shishu Nirjatan Daman Ain (amendment) 2003 and the allegation was not specified.
Considering this fact, the question arises, “Does the allegation lie with section 9(3)?” Or “Do the facts and the law both contradict each other?”
In my opinion, both law and fact contradict each other and this fact does not lie in section 9(3). Because in the practice of law when a case has been filed under section 9(3) on the provision of gang rape, the lawyers or the concerned authority uses to insert section 30 of the same act where the provision is about the punishment for abetment of offenses.
According to the Nari-O-Shishu Nirjatan Daman Ain (amendment) 2003, Section 30 prescribes that if any person gets instigated to commit an offense or aids by instigating another person to commit an offense punishable under this act and in consequence if the offense is committed or attempts to be committed, the person so abetting shall be punished with the same punishment as is provided for the offense abetted.
According to this section, instigation can be held by advice, over a phone call, and in any other way. Abetment must be some act done either prior to or at the commission of the offense and it cannot be referred to any act done after the commission of the offense.
Rape is having sexual intercourse with a woman or girl without her consent or consent taken by fraud. Section 375 of the Penal Code 1860 requires two essential elements to describe a rape with five sub-clauses.
According to Section 375 of the Penal Code, a man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
- Against her will;
- Without her consent;
- With her consent when the consent has been taken by fear of death or hurt;
- With her consent when the man knows that he is not her husband and the woman gives her consent believing that he is her husband;
- Without or with her consent when she is under sixteen years of age.
Except these circumstances, it will not be considered rape even if anyone goes through sexual intercourse.
Section 375 Of the Penal Code requires two elements-(i) sexual intercourse between man and woman, (ii) Sexual intercourse must be under circumstances falling under any of the five clauses in section 375 of The Penal Code. On the other hand, gang rape means and includes more than one person has done forceful sexual intercourse with a woman. So, the allegation of gang rape cannot be accepted when the semen and spermatozoa are found nowhere in the vaginal swab.
In a case of rape, whether it is gang rape or single-hand rape, a medical examination of the victim and the accused soon after the incident often yields a wealth of corroborative evidence. Such an opportunity should not, therefore, be lost on any account. Though the prosecutrix can be examined only with her consent and the accused can be subjected to such a medical examination.
Where the prosecutrix was subjected to repeated gang rape by more persons but there were no signs of any injury whatsoever on any part of her body, it could not be said beyond reasonable doubt that she was gang raped. Where the testimony of the prosecutrix was `found to be trustworthy and also corroborated by medical examination or any other ways it was held in a case that the rape has been proved.
Like the above-mentioned circumstances, there are a lot of criminal cases all over Bangladesh where the accused are considered victims of false and fabricated cases in the end. And they don’t even get compensation through section 17 of the Nari-O-Shishu Nirjatan Daman Ain(amendment) 2003 mentioned the provisions of punishment for instituting a false and fabricated case under the said Act.
Section 17 enumerated that if a person institutes any criminal case to cause injury of any person intentionally under this Act against that person knowing that there is no just or lawful ground for instituting a case or complaint, it shall be punishable with rigorous imprisonment for the term which may extend to seven years.
But to draw proceedings under this section it must be judicially decided that there were no lawful grounds for the case to be instituted or caused to be instituted. In addition, according to section 17(2), a case can be entertained under section 17(1) only when a complaint to that effect is filed by any person.
So, the application of this section will come into force when the accused faces trial and many other proceedings of the law which kill a certain period of time. Though section 20(3) states that the trial is to be concluded within 180 days. If it is not possible, the accused should be released on bail. This section is a directory but not mandatory in nature.
End of the day though the accused released him from the conviction of a false and fabricated case but the society and the people call him a criminal of the society.
Writer: Habibur Rahman Munna, LLB(Hon’s) & LLM, Eastern University, E-mail: hrmonna5@gmail.com. Assisted By- Mehnaj Rahman, Department of Law, Eastern University.
