Evidence of hostile witness may be considered as evidence on record
Appellate
Division
Supreme Court of Bangladesh
Criminal Petition for Leave to Appeal No. 69 of 2002
Mobarak Hossain alias Mobarak
Vs
The State
Before Mr. Justice Md. Ruhul Amin, Mr. Justice K.M. Hasan and Mr. Justice
Fazlul Haque
Date of Judgement: 24.3.2003
Background
Md. Ruhul Amin, J: The convict has preferred this petition for leave
to appeal against the judgement and order dated May 7, 2002 in Criminal
Appeal No. 2109 of 1998 dismissing the same. The appeal was filed by
the petitioner along with 4 other convicts against the judgement and
order of August 24, 1998 passed in Nari-O-Shishu Nirjatan Case No: 145
of 1997 of the Court of Nari-O-Shishu Nirjatan Daman Special Court,
Rajshahi convicting the petitioner and 4 others under section 6(3) of
Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and sentencing
each of them to imprisonment for life.
The
case of the prosecution was that Altafunnesa (PW1), victim of the incident,
in the night of February 25, 1997 was sleeping in her bedroom. Her husband
also slept in the east verandah of her bed room upon bolting the door
from outside. In the early hours of the night of February 26, 1997 she
sensed that some one touched her body and thereupon while woke up she
was threatened to keep quite. At one stage while she called her husband
one of the accused persons pressed her month by cloth and 2 other kept
her pressed down and 3 others raped her and thereupon she lost her sense.
She recognised the accused persons by the moon light and also by the
voice since accused were talking among themselves at the time of incident.
On the following morning she narrated 'the incident to her husband and
at that time her husband stated to her that accused persons wrapped
his mouth and tied him with the post and threatened him not to raise
hue and cry. Her husband was united by his brother's son Rafiqul Islam,
who came in the house upon hearing groaning.
On
the basis of the information lodged on February 26, 1997 by PW1, Baghmara
PS Case No. 10 dated February 26, 1997 under the provisions of Nari-O-Shishu
Nirjatan (Bishesh Bidhan) Ain, 1995, (the Ain) was started. After investigation
prosecution report was filed against 5 accused persons including the
petitioner under Sections 6(3) and 14 of the Ain. The Nari-O-Shishu
Nirjatan Daman Special Court, hereinafter referred to as Special Court,
upon receipt of the record registered Nari-O-Shishu Nirjatan Case 145
of 1997. The petitioner and 4 others were placed on trial to answer
the charge under Section 6 (3) of the Ain to which they pleaded innocent
and claimed to be tried.
PW
1 deposed that accused persons raped her and she recognised them, but
when she was asked to identify the accused persons in the dock, she
stated that she could not recognise accused persons. Some of the witnesses
have stated that after the incident the informant upon receiving Tk.
12,000/- compromised the case with the accused persons. It may be mentioned
that fact of compromising the case upon affirming an affidavit has been
stated by Altafunnesa (PW1) the victim of the incident. PW3, husband
of PW1 has admitted fact of compromising the case by affirming an affidavit
by PW1 and stated since the case was compromised he did not disclose
the truth. PWs 11 and 12, doctors, who examined Altafunnesa on February
27, 1997 noted in their report that Altafunnesa was raped forcibly.
The report prepared upon examining Altafunnesa was proved by the said
2 witnesses and has been marked as Ext. 4. In reply to the suggestion
given by the defence these witnesses have categorically stated that
upon examining and hearing Altafunnesa they have prepared the report.
The
Special Court upon discussions and consideration of the evidence on
record arrived at the finding that accused persons raped Altafunnesa
and thereupon found them guilty under section 6 (3) of the Ain and sentenced
them. All the 5 convicts preferred appeal before the High Court Division.
The High Court Division on independent discussions and consideration
of the evidence on record arrived at the finding that "prosecution
witnesses have not only corroborated the occurrence but also disclosed
the names of the appellants, who were involved in the commission of
rape. It also appears from the evidence of PWs1,2, 3, 5, 7 and 8 that
they have corroborated the prosecution story and have said that since
the accused persons effected compromise with the informant party on
receipt of Tk. 12,000/- (twelve thousand) they are not willing to disclose
the truth but on scrutiny and scanning the evidence of these PWs we
are led to hold the view that none but the appellants have committed
the offence under section 6(3) of the said Ain and the Court of trial
below in our opinion has rightly believed the prosecution case ....
Having regard to the facts and circumstances of the case and the evidence
adduced by the prosecution we have good reasons to believe that the
PWs. 11 and 12 doctors who examined the victim (PW1) have stated the
correct nature of the injuries and have opined that a case of forceful
sexual intercourse and we are to accept his (sic) opinion. Nothing has
transpired from the evidence of the PWs that the occurrence took place
in a different manner and not in a manner as alleged by the prosecution".
Deliberation
The learned Advocate-on-record for the petitioner submits that conviction
of the accused is based on the evidence of the witnesses, who were declared
hostile by the prosecution and that there was no corroboration of the
prosecution case.
The
law is now settled that evidence of the witness, who has been declared
hostile would ipso facto not be of any worth for the prosecution, rather
if on consideration of the evidence of such kind of witness it is found
that the fact stated prior to declaring the witness hostile and in the
course of cross-examination by the prosecution as well as by the defence
supports the prosecution in one respect or other or that corroborated
prosecution case then the evidence of such witness can very much be
looked into along with other evidence on record by the court. And that
if it appears to the court that evidence on record either has established
the case of the prosecution or that prosecution case does not stand
scrutiny then whatever order in any respect is made by the court the
same is very much sustainable in law.
In
the instant case although substantial number of the witnesses were declared
hostile by the prosecution and thereupon cross examined by the prosecution
as well as by the defence the court on scrutiny of the evidence of these
witnesses along with the evidence of other witnesses i.e. witness Nos.
6,11,12 and 13 arrived at the finding that prosecution has been able
to establish its case and thereupon found the present petitioner and
4 others guilty for committing offence under section 6 (3) of the Ain
and sentenced each of them in the manner as stated above.
The
High Court Division on independent discussions and consideration of
the evidence arrived at the finding that prosecution case has been well
established by the evidence including the evidence of the witnesses,
who were declared hostile by the prosecution. The learned Advocate-on-Record
could not point out any infirmity in the aforesaid finding of the High
Court Division in any respect, nor cold he point out any such kind of
flaw in the judgement of the said Division making the same unsustainable
in law. He could not also point out non-consideration of the evidence
favourable to the convicts and that if the court would have considered
the same the order of conviction would have not been made in respect
of the present petitioner.
Decision
Since on consideration of the evidence on record the High Court Division
as well as the trial Court arrived at the finding that prosecution has
been able to establish its case against the present petitioner and 4
others under Section 6 (3) of the Ain and that learned Advocate-on-Record
having had failed to point out any particular material on record making
the observations and findings of the High Court Division as well as
of the trial court as regard the guilt of the present petitioner and
other convicts unsustainable in law we find no reason to interfere with
the judgement and order sought to be appealed.
Accordingly
the petition is dismissed.
Mr.
Md. Nawab Ali, Advocate-on-record, for the petitioner. Respondent: Not
represented
