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Criminal Appeal No. 129 of 1965, decided on 13th February 1968.

S. 376‑Rape‑‑Sentence‑Girl of tender years violated most brutally to satisfy carnal desire of grown‑up accused resulting in her death Sentence of 7 years' R. 1., held, not severe having regard to heinousness of offence

Abdus Salem Khan and Aminul Haq for Appellant.

Nurul Haq Bhuiya for the State.

‑The Appellant Abdul Barek Akond stands convicted by Mr. A. H. Choudhry, Assistant Sessions Judge, Bakerganj under section 376 of the Pakistan Penal Code and sentenced to rigorous imprisonment for seven years. He has also been convicted under section 304 of the Pakistan Penal Code but no separate sentence was passed on this Count. He was placed on trial with the aid of four Assessors who were unanimously of the opinion that the appellant was guilty to both the charges leveled against him.

The prosecution case put is a nutshell was that on 27th March, 1370 B. S. corresponding to 10‑2‑64 at about noon the girl Bibison aged about 9/10 years went to pluck Kolai shak from a field lying to the south of a deserted homestead situated on the south of her dwelling hut. Sometimes after Bibison raised cries "Oh mother, mother" whereupon her step‑mother Rahela ran to the southern corner of the tank and found the girl lying in a restless condition bleeding profusely from her genitals. Bibison stated to her mother that she was raped by the, appellant Abdul Barek Akond in the deserted homestead land.

The alarm had attracted P. Ws. Kulsum and samartaban who also ran to the spot. Rahela, Kulsum and Samartaban found the appellant Abdul Barek Akond running away towards the north by the side of the said homestead land. Bibison was carried home where other prosecution witnesses assembled and the girl stated before all of them that she was raped by the appellant. The unfortunate girl was bleeding profusely and finally she expired sometime after midnight. Her father was away from home and next morning her uncle P. W. Sher Ali went to Police Station Bauphal and lodged the First Information Report at 110 hours. Sub‑Inspector Safaruddin Talukdar came in the evening and held inquest over the dead body and forwarded it to the morgue for post‑mortem examination. He took up investigation, seized some alamats, examined witnesses and finally charge sheeted the appellant. Thereafter the preliminary enquiry was held by a First Class Magistrate who committed the appellant to the Court of Session to take his trial under sections 376 and 304 of the Pakistan Penal Code.

The appellant pleaded not guilty to both the charges leveled against him. From the trend of suggestions given to the pro secution witnesses at the time of their cross‑examination the defence plea appeared to be that the girl might have been raped by another Barek son of Rustom, but this appellant was not connected at all with the occurrence and the offences as alleged. The complainant Sher Ali has got personal enmity with the appel lant and he has falsely implicated the appellant in this case to feed his private grudge.

The prosecution examined fifteen witnesses in this case while the defence examined none. It is not challenged that the girl Bibison was aged about ten years at the time of occurrence and that she met her death under tragic circumstances, she was violently raped causing severe injuries in her genitals wherefrom she was bleeding profusely even after her death. There is evidence that the girl was violated sometime at about 2 p.m. on 10‑2‑64 and that she expired sometime after midnight. Next morning the First Information Report was lodged at 10 a.m. and P.W. 15 S. I. Safaruddin Taludkar held inquest over her dead body at about 8 p.m. and thereafter be forwarded the dead body to the morgue at Patuakhali in custody of the Constable P. W. 5 Majibul Haq. An autopsy was held over the dead body of the girl by P. W. 14 Q. A. Siddique on 13‑2‑64 when he found blood oozing from the private parts of the girl even at that time. He found two small bruises present on the two sides of the posterior aspect of the hips, heart was healthy and empty. The posterior vaginal wall had been lacerated beginning from the forchette to the posterior fernix of the vagina. The uterus had been pushed upwards and sides of the uterus were suffused with blood. On dissection the artilar tissues were found bruised. The cervix had been lacerated and could not be differentiated. In the opinion of the doctor death was due to the shock and haemorrhage as a result of the above mentioned injuries in the genital region which was anti‑mortem and homicidal in nature. The doctor further opined that violent rape might have caused such injuries.

The primary question that arose in this case is whether the appellant Abdul Barek Akond has been correctly connected with the occurrence as asserted by the prosecution. It is not denies that the appellant was addressed as "Dude" that is, uncle and there is evidence on record that this appellant was residing at the "Puranbari" that is, the old homestead land wherein Araj Ali, father of the victim girl's father Ishaque Akonda resided k the time of occurrence. The complainant Sher Ali also admitted that this appellant used to live in that old homestead land with his three brothers and that he has got wife and children.

P. W. 2 Rahela is an eye‑witness to a part of the occurrence. She is step‑mother of the girl. She deposed that on the date of occurrence she had sent the girl to pluck some kalai shak' from the field situated on the west of the old homestead land sometime afternoon. Sometime afterwards Rahela heard the girl crying

"Oh mother, mother". Rahela went out and found the girl running near the south‑west corner of the tank where she fell down and was restless. The alarm was raised when P. W. 3 Kulsum and P. W. 4 Samartaban also ran to the spot. Rahela, Kulsum and Samartaban saw the appellant Abdul Barek Akond moving away from the deserted homestead land towards the north. The girl stated that the appellant Barek Akond committed rape on her. P. W. 3 Kulsum substantially corroborated Rahela. She stated in particular that the girl stated before her that Barek Dudu of Puranbari committed rape on her, and that she had personally seen the appellant Abdul Barek Akond going away fast from the homestead land.

P. W. 12 complainant Sher Ali, P. W. 6 Araj Ali, P. W. 7 Rattan Ali, P. W. Moslem Ali Mridha, P. W. 10 Kasem Mir, P. W. 11 Ishaque Mridha consistantly deposed that they saw the girl after she was removed at her house and she was bleeding pro fusely from her genital parts and on asking she stated that Barek Dudu had committed rape on her. P. Ws. Sher Ali and Rattan Ali are uncles, P. W. 6 Araj Ali is the grand‑father, P. W. 10 Kasem Mir is a maternal cousin of Araj Ali and P.W. 11 Ishaque Mridha is a 1‑ Fupata‑cousin of the girl. But P. W. 8 Moslem Ali Mridha is not related to the girl and there is no suggestion that he has got any enmity with the appellant. P. W. Kulsum resided, no doubt with P. W. 7 Rattan Ali, uncle of the girl at the time of occurrence, but there is no suggestion that Kulsum has got any ill‑feeling with the appellant. Thus there is the consistent and uniform evidence of eight witnesses in this case that they had heard from the victim girl Bibison that she was raped by her Dudu the appellant Abdul Barek Akond. Besides these witnesses consistently stated that they had also heard from Rahela and Kulsum that both of them had seen the appellant Barek to move away from the deserted homestead where the rape was committed.

Mr. Abdus Salam Khan, the learned Advocate for the appellant submitted that the complainant Sher Ali has got enmity with the appellant Abdul Barek Akond and his father Subhan Akond and that he has falsely implicated the appellant in this case to feed his private grudge. 1 t was vaguely suggested to Sher Ali in his cross‑examination that there was dispute over the Pur anbari and regarding purchase of properties of some Hindus with the father of the appellant, but no concrete suggestion was made as to what was the nature of such disputes. It was further suggested that the girl did not state that she was raped by "Dudu Barek", but it was simply stated what she was raped by one Barek only. There is evidence on record that one Rustom of the village has got a son named Barek aged about eighteen years and a school student, and it was . suggested that the said Barek might have raped the girl but Sher Ali had obtained the share of Rustom in the homestead land wherein Sher Ali was residing after this occurrence and thereafter Sher Ali has falsely implicated the appellant in this case. It is worth mentioning here that such clear cut suggestion was not given to Sher Ali, but such a suggestion was thrown to Bahda who however, categorically denied it. The incident took place in broad‑day‑light and there could not be any chance of mistake in identifying the assailant of the girl. It has been uniformly stated by as many as eight witnesses that they had heard from the victim girl soon after the occurrence that she was raped by her Dudu Barek. It was even suggested to Kulsum that she did not state before the police and the lower court that the girl did not say that Barek Dudu of Puranbari had raped her, but she. denied such suggestion, and we have got from the evidence of P. W. 15 Safaruddin that when he examined Kulsum, she stated that she heard Bibison to state that she was raped by Barek Dudu. Such uniform evidence of as many as eight witnesses who could not be shaken in their cross‑examination leave no manner of doubt that the girl had stated before all of them that she was raped by her Barek Dudu, and that the appellant Abdul Barek Akond who is her Dudu, that is, uncle has been unmistakably connected with this occurrence. Besides, there is the evidence of Rahela and Kulsum who had identified this very appellant running away from the deserted homestead land soon after the occurrence.

Mr. Abdus Salam Khan further suggested that a Lungi was recovered by P. W. 11 Ishaque Maridha soon after this occurrence and this Lungi was sent for chemical examination as evidenced by the Investigating Officer P. W. 15 Safaruddin, though there is no evidence on record as to what was the result of the chemical examination. The seizure list shows that this Lungi was produced before the Investigating Officer by the father of the girl Ishaque Akond. P. W. 11 Ishaque Mridha deposed that Araj Ali sent him in search of accused Barek and he accompanied Rattan and others and went in search of the appellant Barek to his house where he could not be found. But Ishaque Mridha found one blood‑stained Lungi in his house and he seized it and took it to the house of Sher Ali where P.W. Araj Ali and others had seen it and thereafter it was in custody of P. W. Samartaban. It has been strenuously stressed by Mr. Abdus Salam Khan that this Lungi was not of the appellant Abdul Barek Akond, but it be longed to Barek son of. Rustom and this is the reason why the Lungi was not mentioned in the ejahar lodged by Sher Ali. We have seen that though the Lungi was sent to the Chemical Examiner. No report was proved in this case and the learned trial court did not lay much credence on the recovery of this Lungi. None of the prosecution witnesses stated that the Lungi was recovered from the house of the other Barek son of Rustom. No suggestion as such was even thrown to any one of the prosecution witnesses. The Lungi might not have been mentioned in the ejahar of Sher Ali due to mistake, and if we thus leave aside the Lungi affair, we find that there is ample evidence on record to connect the appellant Abdul Barek Akond as we have already seen.

Finally, Mr. Abdus Salam Khan submitted that Feroza a sister and Wazed a brother of the victim girl were ‑not examined in this case though they were cited as charge‑sheeted witnesses. P. W. 15 S. I. Safaruddin admitted that he cited Feroza and Wazed as charge‑sheeted witnesses. We have already seen that the pro secution has examined two uncles, one grand‑father, the step mother and a cousin brother of the victim girl and if Feroza and Wazed had been examined, they would have only added the number of relations. But we have already observed that the pro secution has examined in this case an independent witness like P. W. 8 Moslem Ali Mridha whose name was mentioned in the First Information Report and against whom not a single word was suggested by the defence to impeach his veracity. Having regard to all such facts and circumstances and the abundant evidence on record we have got no doubt in our minds to come to the decisive finding that the appellant Abdul Barek Akond who was addressed as "Dudu" by the victim girl was the person who had violated atrociously the girl on that date in a manner which resulted in her death. The evidence of the doctor proves that the girl was violated most brutally in order to satisfy the carnal desire of a grown‑up person like the appellant and the girl had finally to lay down her life, and having regard to such heinousness of the offence we find that the sentence of rigorous imprisonment for seven years is not at all severe and we find no reason to interfere.

One word, however, requires to be stated regarding the con viction under section 304 of the Pakistan Penal Code. It was proper for the Assistant Sessions Judge to find whether the offence falls under part I or under part II of the section after he found the appellant guilty under the section. We applied our mind on this count and we are satisfied that the intention of the appellant was only to rape the girl and not to cause her death. But at the same time we are inclined to think that he should have the knowledge that violence on such a tender aged girl might end fatally and in such view of the matter we are inclined to hold that the offence falls under Part II of section 304 of the Pakistan Penal Code.

In the result the appeal is dismissed and the order of convic tion and sentence is affirmed wine' the above modification.

SALAHUDDIN ARMED, J‑I agree.

Appeal dismissed.

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