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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 85
September 13 , 2008

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Court corridor

The story of an exemplary judgment

Sharin Shajahan Naomi

One of the findings of my study 'Legal challenges on the way to get remedy in rape case' is that our judges are demanding and strict about the circumstantial evidence and corroboration in rape cases. The study also shows how the witnesses get intimidated and provoked by the accused and give contradictory statements in the court which ultimately go against the victim and her desired remedy. Thus, the defence lawyer is able to influence the judge's mind quite successfully.

It is to be considered that rape is a crime of very sensitive nature. Usually, a rape keeps no witness. Even after the commission, a raped woman remains very reluctant to disclose the incident. In this circumstance, it becomes very difficult for the prosecution to prove a rape through corroboration.

The international legal standard set by Amnesty International contains the provision that testimony of raped women should not be put at the mercy of the corroboration of other witnesses. Indian courts, in a number of judgments, expressed a pragmatic view on rape incidents. In Bharwada Bhong Hirjibhai Vs State of Gujrat, AIR 1983, SC 753; 1983 CRLJ 1096, it was held that the statement of the raped victim can be regarded as true because in our conservative society a girl hardly comes forward to bring allegation of rape voluntarily and face the embarrassing court procedure of examination and other complicated matters.

Bangladesh High Court has also taken the same view in a number of cases - 51 DLR 1999, 154; 54 DLR , 2002, 114. In England also change has been brought in 1994 discouraging the need for corroboration in rape cases. Though, none of the above changes in legal attitude is suggesting a judge to give up his contention of beyond reasonable doubt.

Despite having legal contentions for not clinging to corroboration in rape cases, in my case studies I found the strong demand of corroboration in our tribunals (Nari o Sishu) and the contradictory statements of the witness being allured by the offer of the accused play a major role in acquitting the accused in rape case. As a result, rape becomes a crime having least conviction rate.

Amidst such disappointing trend, the judgment of the special tribunal of Mymensingh on Rokeya Vs Holud Mia and Shahjahan Ali illuminates as an example of justice and conscience and ray of hope of changing attitude in our legal domain. Before going into the judgment, the background story needs to be unfolded for better perception of the entire scenario.

In 2004, in the month of June, 7 years old girl Rokeya got brutally raped by Holud Mia and Shahjahan Ali in Mrigali village of Isshorganj, Mymensingh. After the occurrence, Rokeya returned home crying and fainted. When she got back to consciousness, she narrated the story to her mother and other neighbours. She was taken to Mymensingh hospital at night. When BRAC staff came to know about the incident, they immediately went to the hospital and found Rokeya in a very critical condition.

Local newspaper narrated the story as -- 'She was fighting with death. Her whole body was injured with the bite of the rapists. Stitches had been given in her private organ. Still bleeding could not be stopped. Even blood was coming out from mouth.' (from BRAC HRLS file on Rokeya case). Prothom Alo reported the crime on 14-6-2004: 'A raped child from Issorganj has been sent to Dhaka in critical condition'. Rokeya's uterus was cut off and it took her a long time to recover from mental trauma. She was kept in the custody of ASK for her security.

When the case was going on, the accused left no stone unturned to manipulate the normal flow of the case. First, they influenced Rokeya's father to withdraw the case offering land, money and the assurance of marriage with the accused. Rokeya's father succumbed to the offer and tried to convince Rokeya to do the same.

But the staff of BRAC and ASK took a stern position to prevent such unexpected happening. Rokeya's father filed a case against programme officer Nilu of BRAC's legal aid and another staff of ASK for getting back the custody of Rokeya. That also didn't work as ASK successfully managed an injunction to prevent such order. But the accused side continued to threat BRAC's programme officer Nilu, and Nilu had to keep off her office for some time because of that.

In all my case studies, the investigating police officer and public prosecutor were found non cooperative in assisting the victim. But in Rokeya case, public prosecutor Torikul Islam and investigation officer Shawkat Ali were exceptional. When BRAC's staff lawyer was running from here to there to find out the doctors who examined Rokeya (by the time summon was issued to bring the doctors before the court for giving evidence, both the doctors were transferred from Mymensingh), the investigation officer came forward. His wife was a doctor and she helped to find out the present address of both the doctors. But the problem arose when the doctor (who gave seal on the medical legal report) went for training in the USA. The public prosecutor approached the judge narrating the matter and requested to issue another summon for the doctor who was present at the time of examination. The judge considering the practical limitations, issued another summon for that doctor who could appear before the court.

The witnesses of the prosecution side were intimidated and persuaded by the side of the accused and they started to give contradictory statements during the time of examination. The defence lawyer's strategy was very clearl about the two accused: Holud Mia (who was shown under 16 years, hence was treated as juvenile) was planned to be sent to juvenile development centre instead of having any punishment and Shahjahan Mia was to be acquitted taking the benefit of doubt of the contradictory statements of the witnesses.

Prosecution lawyer brought 9 witnesses to prove the case. Among them 2 were the doctors and the investigation officer who could only tell about the incident of rape but not about the rapists. Of the rest six witnesses, five created serious doubt about Shahjahan Mia's involvement in the commission of rape. Another witness, Rokeya's mother, was not so firm about Shahjahan Mia's involvement. Only Rokeya was firm about the involvement of both the accused.

In this regard, there was a strong apprehension that all the efforts and struggle for justice could be in vain if the defence lawyer's strategy would be implemented.

At this moment, public prosecutor and panel lawyer (private lawyer of BRAC) in coordination with Human Rights and Legal Aid Programme of BRAC (head office) opted to rely on legal literature for justice.

The book written by Dr. Shahdeen Malik on juvenile delinquency was submitted before the court insisting on Section 51 of the Children Act 1974 that a juvenile can be given life time imprisonment considering the nature of the crime. Prosecution lawyers very strongly focused on the point that Rokeya's uterus had been cut off, she could not be a mother in life and she had also lost the normal balance.

Public prosecutor brought into attention the judgments of Bangladeshi court and Indian court regarding the issue of the statement of the victims (54 DLR, 2002, 114, 22 BLD HCD, 2002, 621; 8 MLR (HC), 2003, 252; 8 MLR, HC, 2003, 275 ; AIR, 1951 Mad 760; AIR 1983, SC 753; 1983 CRLJ 1096; AIR 1990, SC 658 ; 51 DLR 1999, 154; 54 DLR, 2002) where it has been told again and again that rape is such a crime where the best witness is the rape victim herself. If a rape victim can give statement of her rape and the commission of the rape by the accused is proved beyond reasonable doubt, judge can give verdict in favour of the victim.

The prosecution lawyers further added how Rokeya was resolutely consistent on her statements in FIR, statement under 161 of CRPC, statement under 164 of CRPC and at the time of examination in the court. She was doubtless on the issue of time and occurrence of the incident and the fact that both the accused raped her.

On 24 June, a ground-breaking judgment came from the Nari o Sishu Nirjaton Daman Tribunal of Mymensingh. In the judgment, the honourable judge mentioned - 'Rape is such a crime where no eye witness remains. In rape case, victim is the best witness'.

The court mentioned the following cases -
'It is settled in principle that in a case of sexual offence, there is no legal bar in believing the sole testimony of the prosecutrix 'if it is found to be reliable and worthy of credence.' (Delower Hossian and Ali Hossian Bhuiyan Vs The State, 54 DLR, 2002, HCD; 621, 8 MLR. HC, 2003, 252). 'Corroborative evidence is not an imperative component in every case of rape' (Shibu Pada Acharjee Vs the state, 8 MLR, HC, 2003, 275). In a case Soosalal Bania Vs Emperor (AIR 1925, Nag 74) it has been held that 'in the case of rape on an innocent girl of tender age, her evidence is of great value', especially the case 'Re. Boya Chinnappa AIR, 1951 Mad 760' again emphasized the fact telling that 'where a girl of immature years has been raped and has made disclosure of the rape at the earliest possible opportunity to her mother and another, the court will not insist upon independent testimony connecting the accused with the crime when she makes a statement immediately after the occasion'. The court mentioned how Rokeya disclosed the fact after the occurrence of the crime and her consistency in all the statements.

The honourable court took into consideration the heinous nature of the crime committed by juvenile delinquent Holud Mia and hence decided to resort to the provision 51 of the Children Act 1974 regarding life time imprisonment of the juvenile delinquent.

The court ended the judgment stating 'The case has been proved beyond reasonable doubt under 9 (3) of Nari O Sishu Nirjaton Daman Ain. Both the accused have done inhuman, barbaric offence and such crime is beyond forgiveness. Considering the age of the accused people, instead of giving death penalty to the accused, life time imprisonment has been given.' The court also charged extra compensation against the accused and half of that to be given to the victim.

The judgment itself proves the existence of rule of law in our country and strikes the manipulative efforts of the accused down. This case opens a new door in our legal jurisprudence regarding the issue of corroboration. Especially, it is an exemplary judgment before the other courts who put too much reliance on corroboration of the statements of rape victims.

The motive of narrating a long background story behind the judgment is to congratulate the public prosecutor and the investigation officer and of course the honourable court for proving their dedication to truth and justice going beyond usual lingering practice of the court. The story also gives the message that a good coordination between the legal aid NGOs and state components can ensure justice.

Sharin Shajahan Naomi is working in Research and Evaluation Division, BRAC.


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